Terms & Conditions

ENERGY AGREEMENT
UTILITY NETWORK & PARTNERS INC.
(“UTILITYnet”)
TERMS AND CONDITIONS
Effective as of May 16, 2024
Table of Contents
1.0 INTRODUCTION Top
2.0 ENERGY PLANS
3.0 APPOINTING UTILITYNET AS YOUR AGENT
4.0 CUSTOMER QUALIFICATIONS
5.0 SIGNING-UP
6.0 YOUR RESPONSIBILITIES
7.0 SET UP PROCESS AND START OF SERVICES
8.0 INVOICING PROCESS
9.0 PAYMENT TERMS
10.0 TERM OF THIS ENERGY AGREEMENT
11.0 RENEWAL OF THIS ENERGY AGREEMENT
12.0 CANCELLATION OF THIS ENERGY AGREEMENT
13.0 CHANGES TO THIS ENERGY AGREEMENT
14.0 PRIVACY AND CONFIDENTIALITY
15.0 NOTICES
16.0 CONTACT INFORMATION
17.0 UNEXPECTED EVENTS
18.0 LIMITATION OF LIABILITY OF UTILITYNET
19.0 GENERAL TERMS
SCHEDULE “A” – CODE OF CONDUCT
SCHEDULE “B” – DEFINITIONS
SCHEDULE “C” – INTEREST RATE FOR PRUDENTIAL PAYMENT
INTERNET TERMS OF SERVICE
PORTABLE WIFI TERMS OF SERVICE
1.0 INTRODUCTION Top
1.1 Parties to this Energy Agreement. Under Alberta law, consumers consuming less than 250,000 kWh of electricity or 2,500 GJ of natural gas per year can purchase electricity and/or natural gas from a licensed Energy Retailer. Under the terms of this Energy Agreement, UTILITYnet is the Energy Retailer of Record, and is selling electricity and/or natural gas and/or RECs (collectively the “Energy Services”) to you and guaranteeing the services and prices to you under the terms of this Energy Agreement.
1.2 NewGen Energy (the “Energy Marketer”). UTILITYnet has retained the services of the Energy Marketer as an independent contractor to advertise and promote UTILITYnet’s Energy Services. NewGen Energy is a tradename of UTILITYnet, a licensed marketer of energy under the Consumer Protection Act. You are entering into this Energy Agreement with UTILITYnet, and we are providing you with the Energy Services. As part of our contract with the Energy Marketer, the Energy Marketer has agreed to abide by our Code of Conduct which is included at the end of these Terms and Conditions as Schedule “A”.
1.3 Definitions. For your convenience we have included the definitions of all of the capitalized terms used in this Energy Agreement at the end of these Terms and Conditions as Schedule “B”.
1.4 Observing the Alberta Government’s fair-trading laws and protecting consumers’ rights is paramount in the relationship among the consumer, the licensed Energy retailer and the Energy Marketer. As such, UTILITYnet requires that all representations made to its Customers adhere to and comply with its guiding principles set out in its Code of Conduct. UTILITYnet’s Code of Conduct included as Schedule “A” is also published on UTILITYnet’s website (www.UTILITYnet.net). Oversight of licensed Energy retailers is provided by Alberta’s Utility Consumers Advocate (“UCA”) (see www.ucahelps.alberta.ca).
1.5
Disclosure Statement to Consumers – (For Internet marketing contracts)
Please read this statement before you acknowledge it. Before you enter into a marketing contract for the supply of energy you should understand the following:
1. This contract is not an electricity or gas utility or government rebate program.
2. The business named in this contract may not be able to supply energy cheaper than your current utility company.
3.
This contract can be ended only under the following conditions:
You may cancel this contract with 10 Business Days’ notice by submitting a Cancellation Form through your My Account Portal. This can be done without penalty at any time throughout the Term of the contract.
4. If you move to another location within Alberta, you will not be responsible to buy energy under this contract.
5. You may cancel this contract from the day you acknowledge the contract until 10 days after a copy of the contract that you acknowledged is received by the marketer. You do not need a reason to cancel the contract. To cancel the contract, you must give notice of cancellation at the address in the contract. You may give notice of cancellation by any method that will allow you to prove that you gave notice, including mail, fax, e-mail or by personal delivery. Under certain circumstances you may have more than 10 days to cancel the contract.
If you need more information on cancelling the contract, or if you feel you have been treated unfairly, you may contact Service Alberta at 780-427-4088. Outside Edmonton call 1-877-427-4088 toll free.
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2.0 ENERGY PLANS Top
2.1 Different Energy Plans are offered to meet the varying needs and preferences of consumers. The type of Energy Plan you choose will determine the rates you pay and how they are calculated. You have the following Energy Plan options:
(a) Variable Electricity Rate – A Variable Electricity Rate (also known as a floating electricity rate) is calculated based on the wholesale cost of electricity (which includes a processing cost from Utility Network & Partners, Inc.), plus a Transaction Fee (a charge represented in cents per kWh as posted on the Energy Marketer’s website). The Transaction Fee is subject to change upon reasonable notice to you. A Variable Electricity Rate is re-calculated monthly, based on the actual month-end price for power as reported by the AESO. A Variable Electricity Rate is applied to the previous month’s consumption. For the portion of the consumption that overlaps into the current month, the 30-Day Average Rate is used to price that portion of Monthly Consumption. Your invoices will be adjusted from time to time to account for your actual consumption once we have received this information from your Wire Distribution Company.
(b) Stable Electricity Rate – A Stable Electricity Rate (also known as a fixed guaranteed rate) is a predetermined rate that is valid up to a defined expiry date which is shown on a Customer’s monthly invoice. Upon the expiry of a Stable Electricity Rate, an Energy Plan is renewed on the lowest applicable Stable Electricity Rate available at the time of renewal. If there is no applicable Stable Electricity Rate available, a contract will be renewed with a Variable Electricity Rate. Stable Electricity Rates may not be available for certain Sites.
(c) Variable Natural Gas Rate – A Variable Natural Gas Rate (also known as a floating natural gas rate) is based on a volume-weighted average of transacted prices for all physically delivered natural gas in a calendar month at the Alberta AB-NIT market centre. A final index price is calculated in Canadian Dollars/Gigajoule (“$/GJ”) when all physical deliveries have been completed for a specified month. This information is posted on the www.ngx.com website. Subject to the operating NGX business processes and policies, the final index price is typically made available two Business Days following the final scheduled delivery for the delivery month. The posted rate for natural gas is the average of the 2a and the 5a price, including a processing cost from Utility Network & Partners, Inc., plus a Transaction Fee, (a charge represented in $ per GJ as posted on the Energy marketer’s website). The Transaction Fee is subject to change upon reasonable notice to you. Top
(d) Stable Natural Gas Rate – A Stable Natural Gas Rate (also known as a fixed guaranteed rate) is a predetermined rate that is valid up to a defined expiry date which is shown on a Customer’s monthly invoice. Upon the expiry of a Stable Natural Gas Rate, an Energy Plan is renewed on the lowest applicable Stable Natural Gas Rate available at the time of renewal. If there is no applicable Stable Natural Gas Rate available, a contract will be renewed with a Variable Natural Gas Rate. Stable Natural Gas Rates may not be available for certain Sites.
(e) Dual Fuel Rate – A Dual Fuel Rate is a predetermined rate that is valid up to a defined expiry date which is shown on a Customer’s monthly invoice. Upon the expiry of a Dual Fuel Rate, an Energy Plan is renewed on the lowest applicable Dual Fuel Rate available at the time of renewal. If there is no applicable Dual Fuel Rate available, a contract will be renewed on the lowest applicable Stable Electricity and Stable Natural Gas rate available. If there is no applicable Stable Electricity or Natural Gas Rate available, a contract will be renewed with a Variable Electricity or Natural Gas Rate. Dual Fuel Rates may not be available for certain Sites
(f) Green Renewable Energy Certificates (“RECs”) – Some Stable Electricity Rates are set based on the purchase of a minimum percentage of RECs by the Customer, in order to qualify for the rate. You may also define any percentage over and above the minimum percentage set out in your Energy Plan, by which you want to off-set your monthly electricity consumption. You may increase or decrease this excess amount at any time. UTILITYnet guarantees that it will purchase an equal amount of Energy produced from non-fossil fuels (measured in kWh) which is exported onto the electricity grid, as required by those marketing and retiring RECs. You will be invoiced for the cost of the RECs you have chosen to purchase on a monthly basis, based on the rates published for your Energy Plan as posted on the Energy Marketer’s website. This rate is subject to change with reasonable notice to you.
(g) Micro-Generation Rate – Electricity exported to the Alberta electricity grid by Micro-Generators is calculated based on bi-directional cumulative meter-read information provided by Wire Distribution Companies. The rate paid to Micro-Generators for electricity exported to the electricity grid will be calculated at the same rate as electricity consumed from the electricity grid. The credit may be delayed by one month as the Variable Electricity Rate price is not finalized until the end of the calendar month and the invoicing meter period often overlaps from one month into the next. At UTILITYnet’s discretion, Micro-Generators may be required to provide the information set out in subsection 2.1(h)(vi), below.
(h) Solar Club™ – Micro-Generators that qualify as “small” Micro-Generators under the Micro-Generation Regulation, Alta Reg 27/2008 (a “Small Micro-Generator”), may participate in UTILITYnet’s Solar Club™. A Solar Club™ member may receive the following benefits:
(i) it may switch between a HI Rate and a LO Rate up to once per billing cycle and penalty free, to accommodate seasonal electricity generation fluctuations,
(ii) up to 50% of the electricity imported from the grid by the Small Solar Micro-Generator will be offset using RECs purchased by UTILITYnet;
(iii) it will earn cash back by way of a discounted rate (calculated using the Energy Marketer’s then current discount rate) on all energy imported from the grid by the Small Solar Micro-Generator, on an annual basis; and
(iv) if a Small Micro-Generator is billing at a Solar Club™ HI Rate and the Regulated Rate Option (“RRO”) from ENMAX, EPCOR, or Direct Energy is higher than the current Solar Club™ rate for that month, then the Small Micro-Generator will be billed for its imports and credited for its exports at the highest RRO rate posted by ENMAX, EPCOR, or Direct Energy, rather than the Solar Club™ HI Rate.
To qualify for Solar Club™ membership, a Small Solar Micro-Generator must:
(v) generate electricity from a micro-generation generating unit with a total nameplate capacity of less than 150 kW;
(vi) be net billed using a bi-directional cumulative meter and not a bi-directional interval meter, and not be deemed to be a large micro-generator pursuant to the Micro-Generation Regulation, Alta Reg 27/2008;
(vii) provide proof of its system’s nameplate capacity, year of installation, and number of modules (solar panels) which may be evidenced by:
a copy of its final installation invoice for its micro-generation generating unit, or invoice from the most recent upgrade; or
a certificate or other attestation from a solar installer; or
a copy of its interconnection agreement with the Wires Distribution Company; and
(viii) provide a donation to its local food bank.
(i) Young Adult Electricity Rate – A Young Adult Electricity Rate is a predetermined, fixed, guaranteed rate, that is lower than the Stable Electricity Rate, which is available to Customers between the ages of 18 and 25 years old (inclusive). A Young Adult Electricity Rate is available for a fixed term which is shown on a Customer’s monthly invoice. Upon the expiry of a Young Adult Electricity Rate, the Customer’s Energy Plan is renewed on the lowest applicable Stable Electricity Rate available at the time of renewal and the Customer is no longer eligible for a Young Adult Electricity Rate. A Customer may only qualify for a Young Adult Electricity Rate for one term. If there is no applicable Stable Electricity Rate available (Stable Electricity Rates may not be available for certain Sites), the Customer’s Energy Agreement will be renewed on a Variable Electricity Rate.
2.2 Prudential Payment.
(a) Depending upon the Energy Plan you choose, in order to qualify for some electricity or natural gas rates, you may be required to pay a Prudential Payment. In Alberta, regulatory entities, and electricity and natural gas distribution companies require licensed Energy Retailers to post a prudential payment to cover the cost of Energy and its distribution. Energy Marketers may either:
(i) finance this prudential payment associated with the Energy Services provided to you and incorporate the cost into your Energy Plan (which artificially increases the competitive retail rate); or
(ii) offer you the option of posting the prudential payment yourself by paying a Prudential Payment, in order to obtain a lower electricity or natural gas rate. If you pay a Prudential Payment, you will be paid interest on this amount. Upon the expiration or termination of the Energy Agreement for which the Prudential Payment is required, you will be refunded the Prudential Payment in full, subject only to the deduction of any outstanding amounts you then owe. Your Prudential Payment may also be credited towards any new Prudential Payment you may be required to pay.
(b) The interest accruing on your Prudential Payment will be calculated monthly at the interest rate set out in Schedule “C ” included at the end of these Terms and Conditions, and applied as a credit on your monthly invoice, commencing on your second invoice and continuing until the Energy Plan for which it is required, expires. If your interest payments amount to $50.00 or more in a calendar year, UTILITYnet will issue you a T5 slip which will be mailed to the mailing address you have provided, in February of the following year.
(c) The maximum amount of the Prudential Payment required will be approximately equivalent to two times the amount of your average monthly invoice. The amount you are required to pay as a Prudential Payment may increase or decrease based on your actual consumption and you may be required to provide further payments towards your Prudential Payment from time to time. Top
(d) UTILITYnet will debit the full amount of your Prudential Payment from your bank account after your Site has been enrolled. The funds collected as your Prudential Payment will be administered by UTILITYnet and designated for use in the payment of the prudential payment required to be paid by UTILITYnet to regulatory entities and/or to the Electricity Distribution Company and/or the Gas Distribution Company with which your Site is enrolled.
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2.3 Administration Fees.
All Energy Plans are subject to Administration and/or Service Fees. The current applicable Administration and/or Service Fees are posted on the Energy Marketer’s website and are subject to change upon 3 months’ advance notice to you. The Administration and/or Service Fees applicable to your Energy Agreement may change if you switch Energy Plans, when this Energy Agreement is renewed, or upon three months’ advance notice.
2.4 Switching Rates.
(a) The rates associated with our Energy Plans change periodically based upon normal supply and demand conditions in the Alberta marketplace. You, as a Customer are responsible for being “market-wise” and we encourage you to frequently monitor the rates offered. If new Energy Plan rates are offered or posted on the Energy Marketer’s website from time to time, neither UTILITYnet nor the Energy Marketer are responsible for providing you with notification of such new rates, nor are we authorized to automatically switch your Energy Plan to another Energy Plan.
(b) If you choose to switch to a different Energy Plan, you may do so by submitting a Rate Change Request Form through your My Account Portal. The switch is subject to you qualifying for the new Energy Plan. The Administration Fees applicable to your new plan will be based upon the current rates in effect at the time. The rate change request must be reviewed and approved. Top
(c) If approved, your new Energy Plan will become effective following the next Monthly Meter Read at your Site provided that the rate is effective on or after the meter read date. If your new Energy Plan requires a Prudential Payment and you have not already made an acceptable Prudential Payment for your previous Energy Plan, then the Prudential Payment will be withdrawn from your bank account within 10 Business Days of the date of the rate change.
(d) If your rate is noted as an electricity and a natural gas “Dual-Fuel” Rate, and if you choose to change your rate on the natural gas prior to the expiry date of the rate, then the “Dual-Fuel” classification will be removed and you will no longer be eligible for a lower “Duel-Fuel” rate for the electricity. The electricity rate will be changed to the lowest Stable Rate available. If there is no applicable Stable Electricity available, the rate will be changed to the Variable Electricity Rate.
2.5 Charitable and Community Partner Donations.
(a) An Energy Marketer may promote a financial commitment to various community and social causes by donating a percentage of its income to a community partner or charitable organization. Where this is specifically promoted, UTILITYnet will withhold the donation funds by deducting them from the monthly marketing fees paid to the Energy Marketer by UTILITYnet. UTILITYnet will hold the donation funds in trust and transfer them to the specified donee periodically. This service is provided by UTILITYnet free of charge and there are no Administration Fees deducted from the donations being made. A list of the Energy Marketer’s current community partners and charitable organizations is listed on the Energy Marketer’s web site and included on the UTILITYnet Application Form.
(b) Should the contractual agreement between UTILITYnet and the Energy Marketer end for whatever reason, UTILITYnet shall not be obligated to continue to support the specific community partners and charitable organizations supported by the Energy Marketer. Top
2.6 Energy Marketers’ Promotional Programs.
(a) The Energy Marketer may, from time to time offer a promotional program as an incentive to Customers, designed to encourage them to sign-up for an Energy Plan. Such incentives may, in part, include programs offering referral payments, credit card or reward program points, or loyalty rewards earned by Customers based on their Monthly Consumption.
(b) THESE PROGRAMS ARE BEING OFFERED BY THE ENERGY MARKETERS AND DO NOT FORM PART OF THIS ENERGY AGREEMENT WITH UTILITYNET. UTILITYNET SHALL NOT BE LIABLE IN ANY WAY WHATSOEVER FOR THE FINANCIAL CONTRIBUTION OR PROMISES MADE OR INFERRED TO CUSTOMERS BY THE ENERGY MARKETER. SHOULD THE CONTRACTUAL AGREEMENT BETWEEN UTILITYNET AND THE ENERGY MARKETER END FOR WHATEVER REASON, UTILITYNET SHALL NOT BE OBLIGATED TO CONTINUE TO OFFER NOR TO SUPPORT ANY PROMOTIONAL MARKETING PROGRAMS UNDERTAKEN BY THE ENERGY MARKETER.
3.0 APPOINTING UTILITYNET AS YOUR AGENT Top
3.1 By entering into this Energy Agreement, you appoint UTILITYnet as your limited agent to arrange for the supply and delivery of Energy under this Energy Agreement. We will act as your agent only for purposes directly related to this Energy Agreement and this agency relationship shall cease when this Energy Agreement ends.
3.2 Under the Alberta Utilities Commission’s Rule 010, by digitally signing this Energy Agreement, you hereby authorize and provide your consent for UTILITYnet, at no cost to you, to request and obtain historical Monthly Consumption information from the Wire Distribution Company, in its capacity as your agent.
3.3 You hereby agree that neither UTILITYnet nor the Energy Marketer are providing you with financial advice and you acknowledge that you shall not hold either of them liable for any losses or harm suffered by you as a result of your choice of Energy Plan.
4.0 CUSTOMER QUALIFICATIONS
You must meet the following qualifications:
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4.1 Site Specifications. Your Site must be properly set up and equipped to receive the Energy from the applicable Wire Distribution Company and/or Natural Gas Distribution Company servicing your location.
4.2 Consumption. In order to qualify to enter into this Energy Agreement you must consume less than 250,000 kWh of electricity and/or 2,500 GJ of natural gas per year at one Site.
4.3 Service Area. In order for us to provide you with the Energy Services, your Site must be located within the Service Area. We are prohibited from providing Energy Services to Sites that are located outside of the Service Area, including those located in certain Rural Electrification Association areas, those located in Medicine Hat, sites serviced by Alberta Gas Co-ops and those outside of Alberta.
4.4 Satisfactory Credit Check. Since Energy is being provided to and consumed by you before you pay for it, you are being extended credit under this Agreement. Customers must comply with specific credit requirements as follows:
(a) you agree to provide us with and authorize us to request and receive from third parties, reasonable financial and credit history and information;
(b) you agree to maintain credit worthiness satisfactory to UTILITYnet and/or the Energy Marketer at all times while this Energy Agreement is in effect;
(c) if you do not maintain credit worthiness this Energy Agreement at our sole discretion may be cancelled without liability to UTILITYnet or the Energy Marketer; and
(d) if you do not meet minimum credit requirements, you may be offered the option of entering into an Energy Agreement conditional upon providing a Security Deposit as set out in section 4.5.
4.5 Security Deposit. A Security Deposit may be required in accordance with the following provisions:
(a) a Customer may be required to provide a Security Deposit if:
(i) the Customer has no credit history,
(ii) the Customer has a poor credit rating, or
(iii) the Customer’s previous supply of electricity or natural gas was cancelled for non-payment;
(b) the formula used to determine the amount of the Security Deposit is based on 2 cents per kWh multiplied by the Customer’s estimated annual consumption for electricity and an estimate on the average monthly utility invoice amount for natural gas. The maximum Security Deposit collected will not exceed 30% of a Customer’s estimated yearly electricity and/or natural gas invoice;
(c) UTILITYnet may request the full amount of the Security Deposit from a Customer’s bank account prior to Site enrollment;
(d) the Security Deposit will be fully refundable by UTILITYnet, if you cancel this Energy Agreement during the regulated 10-day cancellation period;
(e) the Security Deposit will be held in a UTILITYnet non-interest bearing trust account and refunded to you in full if you make 12 consecutive required payments without default;
(f) if you default on any of your payments while UTILITYnet is holding your Security Deposit, UTILITYnet may:
(i) use all or a portion of your Security Deposit to cover your outstanding payment amount; and
(ii) the Customer has a poor credit rating, or
(iii) may choose to cancel this Energy Agreement in accordance with section 12.2.
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5.0 SIGNING-UP Top
5.1 The Energy Plans, including rates, fees and these Terms and Conditions, as promoted by the Energy Marketer, are detailed on its website. To apply to enter into an Energy Agreement you must complete the UTILITYnet Sign-up Form posted on the Energy Marketer’s website. If there is any discrepancy between the UTILITYnet Sign-up Form and the Energy Plan or rates or fees posted on the Energy Marketer’s website, the rates posted on the UTILITYnet Sign-up Form will be deemed to be the current values, rates and terms.
5.2 You must also enter into a Pre-Authorized Debit Agreement as explained in section 9.1, below.
5.3 As part of your application you must expressly accept and agree to these Terms and Conditions and expressly acknowledge that you have read and understood the Disclosure Statement contained in section 1.5.
5.4 Once your application has been received, reviewed and if accepted you will be provided with e-mail confirmation of the Energy Plan (Step 3) you have requested and this will form a binding contract.
5.5 If UTILITYnet accepts your application, we agree to arrange for the supply of Energy to your Site, and/or the sale of RECs to you, and you agree to pay UTILITYnet any amounts that you owe pursuant to the Energy Plan you select, and the terms of this Energy Agreement.
5.6 Your Site will be enrolled by UTILITYnet under UTILITYnet’s Retail Identification number which is registered with the applicable Wire Distribution Companies and/or Natural Gas Distribution Company
6.0 YOUR RESPONSIBILITIES Top
6.1 By entering into this Energy Agreement you are agreeing to comply with these Terms and Conditions. In particular, but without limitation, you are agreeing to:
(a) make all payments to UTILITYnet in full when they are due;
(b) pay a Prudential Payment and/or Security Deposit if required;
(c) maintain creditworthiness;
(d) choose the Energy Plan that is best for you in consideration of your needs and circumstances, and neither UTILITYnet nor the Energy Marketer is liable for any such choice you make; and
(e) be responsible for keeping track of rate and market changes and neither UTILITYnet nor the Energy Marketer is liable for or responsible for updating you on any such changes.
7.0 SET UP PROCESS AND START OF SERVICES Top
7.1 Wire Distribution Companies own and operate a distribution system of lines, transformers and switches to provide Energy to residential and commercial premises. Natural Gas Distribution Companies own the delivery systems used to deliver Natural Gas to your premises. We negotiate and contract with the respective distribution companies to provide you with Energy. The distribution companies are regulated by the Alberta Utilities Commission (AUC).
7.2 Once we have finalized our Energy Agreement with you, we will take the necessary steps to enroll you with the appropriate Wires Distribution Company and/or Natural Gas Distribution Company.
7.3 The supply of Energy to your Site will commence on the date of enrollment of your Site(s).
8.0 INVOICING PROCESS Top
8.1 The Wire Distribution Company’s and Natural Gas Distribution Company’s Monthly Meter Read cycle determines your Payment Due Date which may vary from month to month. We will provide you with an invoice on a monthly basis, which will be posted to your My Account Portal for you to download and save. You will also receive a billing notification email (a “Billing Notification Email”) informing you that your monthly invoice has been posted.
8.2 You must pay your invoice in full on a monthly basis on or before the Payment Due Date. Your Payment Due Date will be displayed on your monthly invoice and in your Billing Notification Email. You are responsible for paying all invoices in connection with this Energy Agreement including those sent after the termination of the Energy Agreement and de-enrollment of your Site.
8.3 Your invoice will include charges and adjustments for all Energy supplied to you under your chosen Energy Plan, as well as other charges as set out in this Energy Agreement. The section of your invoice related to consumption is based on your metered Energy consumption, and estimates of your Energy consumption made by the Wire Distribution Company. Accordingly, as per subsection 2.1(a), your consumption information may be adjusted and we will invoice you a debit or credit.
8.4 Subject to applicable laws, you remain liable for all charges on your invoice, including if you do not receive your invoice on time, or at all, for any reason. This includes, without limitation, an interruption in Internet services or postal services, or a situation where we do not have your correct Contact Information.
8.5 Our ability to invoice you on a monthly basis is dependent upon the Wire Distribution Company and/or the Natural Gas Distribution Company providing us with the necessary information in a timely manner. You acknowledge and agree that UTILITYnet and/or the Energy Marketer shall not be liable for any billing delay caused by the Wire Distribution Company’s and/or Natural Gas Distribution Company’s failure to provide necessary information in a timely manner.
9.0 PAYMENT TERMS Top
9.1 Pre-Authorized Debit (“PAD”) Payments: By entering into this Energy Agreement you are also agreeing to provide authorization for PAD payments to be withdrawn from your bank account to pay your invoices. As such:
(a) YOU HEREBY ACKNOWLEDGE THAT YOU ARE PROVIDING YOUR EXPRESS AUTHORIZATION FOR THE BENEFIT OF UTILITYNET AND YOUR BANK, TO PROCESS INVOICE PAYMENTS AND CREDITS AGAINST YOUR BANK ACCOUNT IN ACCORDANCE WITH THE RULES OF THE CANADIAN PAYMENTS ASSOCIATION;
(b) YOU HEREBY WARRANT AND REPRESENT THAT THE DIGITAL SIGNATURE ON THIS ENERGY AGREEMENT ALSO ACTS AS A SIGNATURE TO AUTHORIZE YOUR PAD PAYMENTS;
(c) YOU ARE HEREBY AUTHORIZING YOUR BANK TO PROCESS PAD PAYMENTS FOR UTILITYNET TO WITHDRAW FROM OR DEPOSIT INTO YOUR ACCOUNT WITH THE BRANCH OF THE FINANCIAL INSTITUTION WHERE YOU MAINTAIN A BANK ACCOUNT. YOU CANNOT WITHDRAW THIS AUTHORIZATION IF THERE IS ANY OUTSTANDING AMOUNT DUE AND PAYABLE TO UTILITYNET;
(d) in order to set up your PAD payments, you will need to provide a void cheque or completed Pre-Authorized Debit (PAD) Agreement to UTILITYnet that sets out your name, current address and bank account information. The name on your void cheque/PAD Agreement must match your name on this Energy Agreement;
(e) you acknowledge and agree that your bank is not required to verify that each PAD payment has been issued in accordance with the particulars of your authorization including, but not limited to, the amount of your monthly payment; Top
(f) you acknowledge and agree that your bank is not required to verify that UTILITYnet has fulfilled its obligations under this Energy Agreement prior to issuing any PAD payment;
(g) on your bank statement, your PAD payments will be identified as being made to “UTILNET-EL” for electricity payments and “UTILNET-NG” for natural gas payments;
(h) you agree to inform UTILITYnet in writing of any change to your bank account information at least 10 days prior to the next due date of your PAD payment, or as soon as possible if a change is made within 10 days of the next due date; and
(i) revocation of this PAD payment authorization does not terminate any of the other terms of this Energy Agreement.
9.2 Estimated and Actual Consumption
(a) You acknowledge and understand that the Wire Distribution Company and/or Natural Gas Distribution Company may read your meter on varying dates throughout a given month and that these dates will generally not coincide with the beginning and end of a calendar month. As a result, your Monthly Consumption will generally be calculated as a combination of data from different Monthly Meter Read periods.
(b) You acknowledge and understand that your consumption will be based on your metered Energy consumption, or on estimates of your consumption provided by your Wire Distribution Company and/or Natural Gas Distribution Company or on a combination of both.
(c) Periodically, the Wire Distribution Company and/or Natural Gas Distribution Company may make adjustments between estimated and actual consumption and you agree that we will adjust your invoice to reflect these changes and debit or credit your account accordingly. These adjustments may be made soon after you have paid an invoice but may also occur a significant amount of time after an account is closed.
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9.3 Pick-A-Date
(a) Instead of having your monthly payments withdrawn from your bank account on the due date of your invoice (which is 7 days after the invoice date), you may select a specific payment date so that your payments will be withdrawn on the same date each month (“Pick-A-Date”). You may choose:
(i) any date from and including the first day of the month, to and including the 28th day of the month, excluding your “Blackout Period” (explained below); or
(ii) the last day of every month, which will vary depending on the month.
(b) Your “Blackout Period” is the 10-day period following your invoice date. For example, if your invoice date is the 5th day of the month, your Blackout Period is from the 5th to the 15th. Your payment date cannot be during your Blackout Period. If you contact Customer Care during your Blackout Period to set up Pick-A-Date, payment for any invoice that has been issued, but not yet paid, might still be withdrawn on the invoice due date or might be withdrawn on the payment date you select. Any future invoices will then be withdrawn on your Pick-A-Date payment date.
(c) As explained in subsection 9.2(c) above, your Wire Distribution Company or Natural Gas Distribution Company may take a new meter reading from time to time and you will be issued an updated invoice, which may change your invoice date and billing schedule. If this causes your Pick-A-Date payment date to occur during your new Blackout Period, you will be contacted by Customer Care to choose a new payment date.
(d) You may set up Pick-A-Date by contacting Customer Care.
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9.4 Budget Billing
(a) If you are eligible, you may sign up for UTILITYnet’s budget billing plan (“Budget Billing”) to pay for your electricity and/or natural gas in equalized monthly payments, which shall be withdrawn from your bank account on the due date of your invoice or on the specific day each month that you have pre-selected.
(b) To qualify for Budget Billing you must:
(i) have had no instances of dishonoured payments in the past 12 months;
(ii) be on a fixed electricity rate (a Stable Electricity Rate);
(iii) be a new Customer with good credit (not requiring a deposit) or an existing Customer with good payment history, and in either case, have at least 6 months of consumption history as a UTILITYnet Customer for each site for which Budget Billing will apply; and
(iv) be approved for Budget Billing by Customer Care.
(c) Your equalized Budget Billing payment amount for electricity will be determined by UTILITYnet using your consumption history and shall also include a prorated portion of the Administration Fee, delivery, transmission, and other regulated charges, the cost of RECs (if applicable) and GST. Your equalized Budget Billing payment amount for natural gas will be determined by UTILITYnet based on a Historic Usage File (HUF) transaction provided by your Wire Distribution Company or your existing consumption history with UTILITYnet and shall also include a prorated portion of the Administration Fee, delivery, transmission, and other regulated charges, and GST.
(d) If you qualify for Budget Billing you may sign up by contacting Customer Care. Prior to your first Budget Billing payment(s) you will be advised of your monthly payment amount(s). Payment amounts shall be reviewed and may be adjusted twice a year in April and in October. You will be notified by email from Customer Care of any change to your Budget Billing amount(s) prior to the amount(s) being adjusted in May and November, if applicable.
(e) You will no longer be eligible for Budget Billing for an account in the event of a dishonoured payment or if your Energy Plan changes from a fixed rate to a variable rate, in which case you will be removed from the Budget Billing plan.
(f) As soon as a site is de-enrolled, your Budget Billing plan for that site/account will terminate and any outstanding balance accumulated will be due and payable on your next invoice.
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9.5 Credit Balances and Credit Balance Transfers
(a) From time to time you may have a credit balance on one or more of your electricity and/or natural gas accounts. If a balance of over $200.00 remains on your account for two consecutive months, you will receive a refund of the credit balance (a “Credit Balance Refund”). However, you may also choose to:
(i) leave the credit balance on your account to pay future invoices. You may switch to this option by contacting Customer Care to make this request. This will automatically occur for any credit balance that is $200 or less, or that has remained on your account for fewer than two consecutive months; or
(ii) set up your accounts to automatically transfer any credit balance to one or more other accounts to pay future invoices on those accounts (but not previously generated invoices) (a “Credit Balance Transfer”). You may switch to this option by accessing your My Account Portal and selecting “Yes” beside the Credit Balance Transfer option. Credited Balance Transfers will be noted on your invoices as “Balance Transfers”.
(b) The Credit Balance Transfer option is not available if you have registered for Budget Billing, even if you select the option in your My Account Portal. The Credit Balance Transfer option is only available for electricity and natural gas accounts. You may switch back from the Credit Balance Transfer option at any time in your My Account Portal by selecting “No” beside the Credit Balance Transfer option. This will stop any future Credit Balance Transfers, but will not reverse any transfers that have already occurred.
(c) You may choose to have both the Credit Balance Transfer option and the Credit Balance Refund option apply to your accounts. If so, use of the credit balance will depend on the timing of your invoices in relation to the length of time the credit balance remains on your account. For example, if a credit balance of over $200 remains on your account for more than two consecutive months making you eligible for a Credit Balance Refund before the next invoice is issued on any of your accounts, you will receive a refund and your credit balance will not be transferred to any of your other accounts to pay upcoming invoices.
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9.6 Late Payments or Disputed Invoices
(a) If we do not receive your payment by the date indicated on your invoice, we may charge you a Late Payment Fee.
(b) Where an invoice is for more than one Site, a Late Payment Fee may be charged per Site and is not limited to a single Late Payment Fee charge per invoice.
(c) You may contact UTILITYnet and file a formal letter of dispute for any invoice up to 60 days following the date the invoice is posted to your My Account Portal.
(d) If you dispute your invoice, you must pay the invoice in full prior to the dispute being addressed by UTILITYnet. Upon reviewing the disputed invoice, if an error is found, then UTILITYnet shall adjust the invoice and re-issue it to you and your bank account will be debited or credited to correct the error.
(e) You are responsible for all legal and collection fees associated with the collection of any amounts owed by you.
(f) If you do not pay your invoices on time, we may cancel this Energy Agreement without liability to UTILITYnet and/or the Energy Marketer and we may recover all related costs from you.
(g) It is your responsibility to review and ensure you are being invoiced at the correct rate in accordance with your Energy Plan and that your Site has been property identified, and notify us or the Energy Marketer of an error as soon as possible.
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9.7 Paper Invoice Charge
A $3.25 charge per site, will be added to your monthly invoice, if you request that a paper copy of your invoice to your address. This charge is subject to change without notice.
10.0 TERM OF THIS ENERGY AGREEMENT Top
10.1 The initial term of this Energy Agreement begins on the Service Start Date and ends on the Expiry Date (the “Term”). These dates are set out on the copy of the Enrollment Confirmation (Energy Plan) emailed to you as part of the Sign-up process (Step 3), unless a revised Term is agreed to by both parties in writing. As well, the dates are included on each invoice sent to you throughout the Term.
10.2 Notwithstanding the foregoing and the Expiry Date, you will be responsible for paying for all Energy you consume up to the date of the last Monthly Meter Reading provided to us by the Wire Distribution Company and/or Natural Gas Distribution Company, that is closest to your Expiry Date.
10.3 At least 30 days prior to the end of the Term of a Stable Electricity Rate, a Stable Natural Gas Rate or a Dual Fuel Rate, you will be notified of the upcoming Expiry Date at which time you will be advised of the available Energy Plan options. You may cancel this Energy Agreement with 10 Business Days’ notice, without penalty, or switch to an alternate Energy Plan that may be more suitable to your needs through your My Account Portal.
11.0 RENEWAL OF THIS ENERGY AGREEMENT Top
11.1 When the Term of this Energy Agreement expires, unless you give us notice that you would like to end this Energy Agreement, we may automatically renew this Energy Agreement for your Site for a new term (the “Renewal Term”).
11.2 If we renew this Energy Agreement, your new Energy Plan for the applicable Site (the “Renewal Energy Plan”) will be the lowest Stable Electricity, Stable Natural Gas or Dual-Fuel Rate available at that time, for which you and your Site qualify, unless you select a different Energy Plan available for the Renewal Term.
11.3 You will be provided with notice before the Renewal Term begins. If you object to the renewal of this Energy Agreement, you may cancel this Energy Agreement with 10 Business Days’ notice, without penalty, or switch to an alternate Energy Plan that may be more suitable to your needs through your My Account Portal.
11.4 Your Renewal Energy Plan will set out your Renewal Term dates, your rates, applicable fees and any other charges applicable for your Renewal Term. These Terms and Conditions will still apply except that they may have been amended and the Schedules may have changed, in accordance with this Energy Agreement. Your Pre-Authorized Debit Agreement will still apply to your Renewal Term.
11.5 At the end of the Renewal Term, this Energy Agreement may be renewed for a further Renewal Term using this Article 11.
11.6 The renewal of this Energy Agreement will not affect your right to cancel it or remove one or more sites from this Agreement without penalty, at any time in accordance with section 12.1. During your Renewal Term you may still change your Energy Plan at any time in accordance with these Terms and Conditions.
12.0 CANCELLATION OF THIS ENERGY AGREEMENT Top
12.1 Your Cancellation Rights.
(a) You may cancel this Energy Agreement at any time without penalty, by providing 10 Business Days’ notice and submitting the Cancellation Form through your My Account Portal.
(b) In addition to your general cancellation right set out in section 12.1 above, you may cancel this Energy Agreement without:
(i) cost or penalty, within 10 days after we receive your acknowledgement of the full Energy Agreement signed by you as per section 5.4, even if you have already received Energy Services;
(ii) cost or penalty if another Agreement for Energy services presently exists for the same Site contemplated by this Energy Agreement, except if the existing agreement is to expire on or before the Service Start Date; or
(iii) penalty within one year from the date we receive your acknowledgement of the full Energy Agreement signed by you as per section 5.4 if UTILITYnet:
A. does not set out a specific or ascertainable Service Start Date;
B. does not begin the supply of Energy within 30 days of the Service Start Date, unless, after this 30-day period, you expressly authorize the supply of Energy to begin; or
C. is not properly licensed to enter into this Energy Agreement with you at the time this Energy Agreement is made;
provided that you will still be required to pay for any Energy consumed until this Agreement is cancelled.
12.2 Our Cancellation Rights
(a) We may immediately cancel all or a portion of this Energy Agreement or one or more of your Energy Plans without any penalty or liability to UTILITYnet and/or Energy Marketer, upon providing notice to you, if you do not fulfill any of your obligations or breach any of the Terms and Conditions of this Energy Agreement.
(b) If you default on the payment of your monthly invoices, after we have provided you with notice of our cancellation of this Energy Agreement, your Site will be de-enrolled and any remaining funds, including accrued interest, will be refunded to you after the deduction of all outstanding amounts owed by you to UTILITYnet.
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12.3 Procedure if this Energy Agreement is Cancelled. If this Energy Agreement is cancelled by you or by UTILITYnet for any reason:
(a) when this Energy Agreement ends, we will request that the Wire Distribution Company and/or Natural Gas Distribution Company de-enroll your Site;
(b) any refund due to you will be processed following our receipt of a notice of acknowledgement of the de-enrollment from the Wire Distribution Company and/or Natural Gas Distribution Company. UTILITYnet reserves the right to apply the amount of any Prudential Payment or Security Deposit to be refunded, against any outstanding amount owed by you to UTILITYnet;
(c) at the end of this Energy Agreement and after the final reconciliation of all charges outstanding on your account has been completed, if there is a credit balance greater than $1.00, it will be refunded to you by way of an electronic funds transfer (“EFT”) into your bank account.
(d) any outstanding obligations under this Energy Agreement will survive the cancellation, termination, or expiry of this Energy Agreement until the de- enrollment is completed and any outstanding payments or other obligations under this Energy Agreement have been satisfied in full.
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13.0 CHANGES TO THIS ENERGY AGREEMENT Top
13.1
Transferring Your Energy Agreement if you Move.
(a) If you move, and you and your new Site still qualify, you may continue to receive Energy Services at your new Site, provided that it is located within our Service Area. To receive Energy Services at a new Site you must complete a new UTILITYnet Sign-Up Form. You will be responsible for any additional third party costs that you, UTILITYnet or any applicable third party incurs in serving the new Site.
(b) You must provide us with a minimum of 10 Business Days’ notice prior to moving, by submitting a completed Moving Notification Form in your My Account Portal. However, if you continue to own, but not occupy your old Site and you wish to continue this Energy Agreement, then a Moving Notification Form is not required.
(c) You will be solely responsible for any interruption in supply of Energy Services caused by your failure to give us 10 Business Days’ written notice.
(d) If you move outside of Alberta or otherwise outside of the Service Area, this Energy Agreement will end on the date of de-enrollment and you will remain responsible for any outstanding obligations under the cancelled Energy Agreement until satisfied in full.
13.2
Changing Your Name on Your Account.
(a) You agree and represent that you are the account holder in relation to the Site or are authorized by the account holder in relation to the Site and have the authority to enter into this Energy Agreement. We are relying on this representation for the purposes of this Energy Agreement.
(b) If you change your name legally, or as a result of marriage or divorce, you may change your name on your account and with respect to this Energy Agreement, by providing us with evidence of your name change such as a copy of your marriage certificate or updated government issued photo identification like a driver’s license or passport.
(c) The name associated with your account and this Energy Agreement must match the name associated with your bank account used to pay for the Energy Services.
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13.3 Adding a Contact Person to Your Account.
(a) You may add another person to your account, whom you authorize to make decisions regarding your account and this Energy Agreement (your “Additional Contact”). You agree that UTILITYnet and Energy Marketer may fully rely on, and that you will be bound by, the decisions, information and directions provided by your Additional Contact. This may include contacting us to discuss your invoices, making decisions about Energy rates or updating banking or personal information (such as email address etc.).
(b) Your Additional Contact may not open or close an account in your name. Your Additional Contact’s name will not be displayed on the invoice but will be noted in our records.
13.4 Changes to the Energy Agreement. We reserve the right to amend the terms of this Energy Agreement from time to time. We will provide you with notice of any changes to this Energy Agreement. You acknowledge and agree that we may provide you with formal notice:
(a) on one of your monthly invoices;
(b) included with one of your monthly invoices; or
(c) sent by email to the most recent email address you have provided to us,
and that any of these forms of notice will be deemed to be properly delivered.
14.0 PRIVACY AND CONFIDENTIALITY Top
14.1 The information you provide to us will be used to establish your creditworthiness, set up your account, collect money owing on your account, arrange for the supply of Energy under this Energy Agreement, for reporting purposes, for law enforcement activities, and to communicate with you. Your information will not be collected, used or disclosed for any other reason unless required or authorized by law.
14.2 The information you give us may also be shared with the Wire Distribution Company and/or Natural Gas Distribution Company. We may also share your information with any party to whom we transfer, grant or pledge (or intend to transfer, grant or pledge) an interest in this Energy Agreement (ex. if we sell our business).
14.3 We may use your information to develop, enhance, market or provide future products or services, to understand Customer needs and preferences, and to meet legal and regulatory requirements.
14.4 Customer credit card or banking information WILL NOT be shared with any third party organization, including the Energy Marketer, without your consent or unless UTILITYnet is required by law to disclose this information.
14.5 By entering into this Energy Agreement, you consent to us collecting, retaining, using, and disclosing your information in the manner described in this Article 14 and in accordance with the terms of our privacy policy which can be viewed on our corporate web site www.UTILITYnet.net. If you have questions or concerns about how your information is used or protected, please email us at [email protected].
15.0 NOTICES Top
15.1 If you wish to take action under this Energy Agreement, including providing a cancellation notice or updating your contact or account information, you must do so by using the forms provided on your My Account Portal.
15.2 You agree that we may send market-related information to your email address on file from time to time. You will have the choice of opting out of receiving such communications.
15.3 You are responsible for ensuring that UTILITYnet has a current record of your contact information including your current email address. We are not responsible for any loss you suffer from not receiving a notice because we do not have your most current contact information or email address.
16.0 Contact Information You may also contact us using the following contact information:
UTILITY NETWORK & PARTNERS INC.:
200, 1316 – 9 Avenue S.E.
Calgary, Alberta T2G 0T3
Attention: Darren Chu, Managing Director
Email: [email protected]
NEWGEN ENERGY:
Suite 600, 720, 20 Crowfoot Cres. N.W.
Calgary, Alberta T3G 2P6
Email: [email protected]
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17.0 UNEXPECTED EVENTS
Certain events beyond our control may make it impossible for us to fulfill some or all of our obligations under this Energy Agreement from time to time or at all. You agree that we are not liable to you for any service disruptions caused by events beyond our reasonable control. We agree that we will resume our obligations as soon as we reasonably can. This Energy Agreement will otherwise remain in full effect.
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18.0 LIMITATION OF LIABILITY OF UTILITYNET Top
18.1 UTILITYNET DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR THE PHYSICAL SYSTEMS THAT SUPPLY YOUR ENERGY, THE CONTINUITY OF YOUR ENERGY SUPPLY OR THE QUALITY OF YOUR ENERGY SUPPLY (INCLUDING BUT NOT LIMITED TO GENERATION, TRANSMISSION, WIRES SERVICES, PRESSURE, VOLTAGE, AND FREQUENCY).
18.2 YOU ARE SUBJECT TO THE TERMS AND CONDITIONS OF DISTRIBUTION SERVICE AND TARIFFS OF THE WIRE DISTRIBUTION COMPANY OR ITS AGENT AND/OR THE NATURAL GAS DISTRIBUTION COMPANY AND AFFILIATES. FAILURE TO COMPLY WITH THOSE TERMS AND CONDITIONS MAY RESULT IN YOU BEING DISCONNECTED FROM THE DISTRIBUTION SYSTEM AND SUBJECT TO FEES OR OTHER CHARGES.
18.3 YOU AGREE THAT UTILITYNET AND THE ENERGY MARKETER ARE UNDER NO CIRCUMSTANCES WHATSOEVER LIABLE FOR: ANY INTERRUPTION OR UNAVAILABILITY OF ENERGY, FOR THE QUALITY OF ENERGY, ANY ACT OR OMISSION OF ANY THIRD PARTY (INCLUDING THE WIRE DISTRIBUTION COMPANY AND THE RETAILER), YOUR ACTS OR OMISSIONS, OR ANY EVENT BEYOND UTILITYNET’S REASONABLE CONTROL.
18.4 YOU AGREE THAT WE ARE ONLY RESPONSIBLE FOR DAMAGES CAUSED DIRECTLY AND SOLELY BY OUR ACTIONS AND THE ACTIONS OF THOSE FOR WHOM WE ARE RESPONSIBLE AT LAW. YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR PUNITIVE, INDIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES; OR DAMAGES FOR LOSS OF USE, REVENUE, PROFITS OR OPPORTUNITY. THIS PROVISION SURVIVES CANCELLATION, TERMINATION OR EXPIRY OF THIS ENERGY AGREEMENT.
19.0 GENERAL TERMS Top
19.1 Entire Agreement. This Energy Agreement, together with any documentation referenced herein represents the entire agreement between us. This Energy Agreement supersedes any prior agreements, representations or warranties.
19.2 Interpretation.
(a) All headings in this Energy Agreement are inserted for reference only and shall not affect the construction or interpretation of this Energy Agreement.
(b) Except where otherwise indicated, all words importing the singular shall include the plural and vice versa and words importing the masculine gender shall include the feminine gender and vice versa.
(c) If any provision of this Energy Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, that provision shall be deemed severable and not invalidate or render unenforceable the remainder of this Energy Agreement. In this event, such provision shall be changed and interpreted so as best to accomplish the objectives of such invalid or unenforceable provision within the limits of applicable law.
(d) You agree that in the interpretation of this Energy Agreement, no rule of contract construction shall apply to disadvantage any party on the basis that it:
(i) prepared this Energy Agreement; or
(ii) seeks to rely on this Energy Agreement or any part of it.
19.3 No Resale. You agree that the Energy supplied to you under this Energy Agreement is for your own use only and shall not be resold. Top
19.4 Assignment of this Energy Agreement. You may not transfer or assign this Energy Agreement or any part thereof. UTILITYnet may transfer all or a part of this Energy Agreement or any interest it may have herein, at any time without notice to you and without your consent.
19.5 Governing Law. This Energy Agreement is governed according the laws of the Province of Alberta. The parties to this Energy Agreement attorn to the jurisdiction of the competent courts of Alberta.
19.6 Class Action. You hereby waive any right you may have to commence or participate in any class action against UTILITYnet or any party affiliated with UTILITYnet or the Energy Marketer related to any claim where such a waiver is permitted. Where applicable, you also agree to opt out of any class proceedings against UTILITYnet or any party affiliated with UTILITYnet or the Energy Marketer.
19.7 Waiver and Forbearance. The waiver by either party of any default by the other party under this Energy Agreement shall not operate as a waiver of any future default, whether of a like or different nature. Furthermore, failure by either party to enforce any provision of this Energy Agreement shall not be deemed a waiver of future enforcement of that or any other provision and no waiver shall be effective unless made in writing and signed by the waiving party.
19.8 Survival of Terms. Any obligations relating to fees, charges, penalties, or otherwise owed by you to UTILITYnet pursuant to this Energy Agreement will survive any expiration or cancellation of this Energy Agreement.
19.9 Enurement. This Agreement shall enure to the benefit of and shall be binding upon the successors, permitted assigns, heirs, executors, and personal and legal representatives of the parties.
SCHEDULE “A” Top CODE OF CONDUCT
Energy Marketers, under contract with UTILITYnet, marketing and promoting the sale of electricity, natural gas and green renewable energy certificates (“RECs”) to residential and small commercial consumers in Alberta, are required to adhere to UTILITYnet’s Code of Conduct.
UTILITYnet’s Compliance Plan
Under UTILITYnet’s Compliance Plan, the Energy Marketer has covenanted and agreed that they will:
1. not condone, encourage, nor support any activity or behavior on the part of its employees, including agents or contractors, which is inconsistent with the requirements set forth in this document;
2. endeavor to ensure absolute protection and maintenance of all confidential records regarding all Customer data, accounts and related site management information;
3. when addressing a Customer or potential Customer, clearly identify themselves as representing the Energy Marketer and/or UTILITYnet (as the case may be). All sales promotional materials and websites used will clearly indicate the name, address and phone number of the Energy Marketer;
4. ensure that all communications will be based on the fundamentals of honesty, truthfulness and clarity;
5. ensure that all information provided to Customers or potential Customers will be in plain language not misleading; and
6. not disclose any information concerning a Customer to a third party without the written or electronic consent of the Customer, except when the information has been sufficiently aggregated such that the identity of the Customer cannot be readily ascertained from the information, or where the information is required to be disclosed for collection or law enforcement purposes.
Code of Conduct Top
The Energy Marketer has signed an affidavit, requiring them to comply with and adhere to the following terms of this Code of Conduct. They have affirmed that they will:
1. indicate that the Energy Marketer is soliciting the Customer for the purpose of marketing electricity, natural gas and/or RECs;
2. allow a Customer to take all the time necessary to review, consider and understand the terms included in the Energy Agreement as presented on the Energy Marketer’s website(s) or as detailed on the UTILITYnet Sign-up Form;
3. ensure that all data to which the Energy Marketer refer are properly established and reliable and support any claim for which the data are cited;
4. ensure that all descriptions and promises made in promotional material are in accordance with actual conditions, situations and circumstances existing at the time the description is provided or the promise is made;
5. not abuse the trust of a Customer or exploit any fear or lack of experience or knowledge of a Customer;
6. not be intrusive and must not contact Customers between the hours of 9 p.m. and 8 a.m. to solicit them to enter into Energy Agreements;
7. not exert undue pressure on a Customer and must allow sufficient time for a Customer to read thoughtfully and without harassment, all documents that the Energy Marketer provides to a Customer and must accept a Customer’s refusal of further discussion;
8. not induce a Customer to breach an agreement with another energy retailer;
9. not make any representation or statement or give any answer or take any measure that is not true or is likely to mislead a Customer;
10. not make any verbal representations regarding agreements, rights or obligations that are not contained in the Energy Agreement;
11. truthfully inform the Customer of the Energy Marketer’s identity and role;
12. use only timely, accurate, verifiable and truthful comparisons;
13. not make any representation that savings, price benefits or advantages exist if they do not exist or if there is no evidence to substantiate the representation;
14. ensure that the Customer understands that Variable Rates are volatile and subject to real market conditions of supply and demand. Furthermore, there is no guarantee that the monthly Variable Rate prices will necessarily be below the government’s default Regulated Rate Option.
15. always provide representation of not only the total retail published price of Energy but also all component parts of the Energy Plan and price, including but not limited to, the requirement to pay a Prudential Payment (if bundled with a discounted rate), interest rates paid on the Prudential Payment, Transaction Fees and Administration Fees; and
16. not switch a Customer’s Energy supply without the Customer’s written or electronic consent, but the Energy Agreement may be assigned if the Energy Agreement expressly provides that it can be assigned.
Mechanisms Top
It is acknowledged that UTILITYnet has implemented the following procedural processes to ensure compliance with this Code of Conduct:
1. A signed copy of this Code of Conduct will be retained on file for each Energy Marketer that has entered into an Energy Marketer Agreement with UTILITYnet;
2. By signing this Code of Conduct the Energy Marketer has confirmed that they have read this document and understand my covenants and obligations hereunder.
3. Within 60 days after the end of each calendar year, the Energy Marketer is required to re-confirm the covenants and obligations by re-reading and resigning this Code of Conduct. This process is intended to confirm that they have undertaken the required review of this Code of Conduct and have acted in accordance with its requirements during the prior calendar year.
4. Signed copies of this Code of Conduct (including any amendments thereto) will be provided to the Market Surveillance Administrator, Utilities Consumer Advocate, or Service Alberta upon request.
5. If there is any breach of this Code of Conduct and if corrective measurements are required, UTILITYnet will immediately and proactively address the issue in a timely fashion.
Questions or comments concerning this Code of Conduct should be directed to UTILITYnet.
SCHEDULE “B” Top DEFINITIONS
Within this Energy Agreement, the following words and phrases shall have the following defined meanings and grammatical variations:
(a) “30-Day Average Rate” is a rate based on the average hourly rate date published by AESO averaged over a 30-day time period.
(b) “Additional Contact” has the meaning found in section 13.3.
(c) “Administration Fee” is a monthly charge per Site, as listed on the Energy Marketer’s web site.
(d) “AESO” means the Alberta Electric System Operator, an independent, not-for-profit entity that plans, manages, facilitates and oversees the generation and distribution of electricity in Alberta and administers the Alberta Interconnected Electric System.
(e) “Billing Notification Email” means and email that you will receive informing you that your monthly invoice had been posted to your My Account Portal.
(f) “Business Day” means any day except Saturday, Sunday or a statutory holiday in the Province of Alberta.
(g) “Cancellation Form” means the cancellation form located in your My Account Portal.
(h) “Customer” means any Person that has entered into an Energy Agreement with UTILITYnet and has received, is receiving or will receive Energy Services from UTILITYnet.
(i) “Dual-Fuel” means service for both electricity and natural gas provided by the same supplier.
(j) “Energy” means electricity, natural gas, and/or RECs, or a combination of them, to be provided to you under this Energy Agreement.
(k) “Energy Marketer” means a third party entity contracted by UTILITYnet to act as a sales representative to promote and market its Energy Services. Top
(l) “Energy Plan” means the Energy Plan advertised on the Energy Marketer’s website, that you have selected using the UTILITYnet Sign-up Form for the provision of Energy to you, which you may change from time to time using your My Account Portal.
(m) “Energy Services” mean those provided by UTILITYnet to its Customers, being the supply and delivery of electricity, natural gas and/or RECs to residential and commercial premises in the Province of Alberta;
(n) “Expiry Date” means the date upon which this Energy Agreement ends. The Expiry Date shall be set out on your UTILITYnet Sign-up Form
(o) “Variable Electricity Rate” has the meaning found in subsection 2.1(a).
(p) “Variable Natural Gas Rate” has the meaning found in subsection 2.1(c).
(q) “Solar Club™” is a division of Utility Network and Partners, Inc.
(r) “Late Payment Fee” means a fee not greater than $45.00 charged to you, should you fail to pay your invoice on time. Top
(s) “Monthly Consumption” is the difference between consecutive Monthly Meter Reads in a one-month period.
(t) “Monthly Meter Read” refers to the reading of the Customer’s Energy meter which is typically done on a monthly basis.
(u) “Moving Notification Form” means the form located in your My Account Portal used to notify UTILITYnet when you move, if the move will affect your Site or this Energy Agreement in any way.
(v) “My Account Portal” means the online portal which is a UTILITYnet self-service portal, located on the Energy Marketer’s website, that you will use to access and modify your account information, including downloading your monthly invoices.
(w) “Natural Gas Distribution Company” means one of the companies in Alberta that owns and operates a natural gas distribution system providing natural gas to residential and commercial premises.
(x) “PAD” means Pre-Authorized Debit.
(y) “Payment Due Date” is the date on or before which your invoice payment is due and payable. Your Payment Due Date may vary as explained in section 8.1.
(z) “Prudential Payment” has the meaning found in section 2.2.
(aa) “Rate Change Request Form” means the form available in your My Account Portal online.
(bb) “Renewal Energy Plan” has the meaning found in section 11.2.
(cc) “Rural Electrification Association” means a not-for-profit cooperative incorporated under the Rural Utilities Act, which possesses its own electric distribution systems.
(dd) “Security Deposit” has the meaning found in section 4.5.
(ee) “Service Area” collectively means all of those areas to which the Energy Services may be provided. The Service Area DOES NOT INCLUDE:
(i) Certain Rural Electrification Associations;
(ii) Federation of Gas Co-operatives;
(iii) The City of Medicine Hat; and
(iv) any area outside the Province of Alberta.
(ff) “Service Start Date” means the date on which you shall begin receiving Energy at your Site in accordance with this Agreement. The Service Start Date shall be specifically set out on your UTILITYnet Sign-up Form or as noted on the email notification sent to the Customer per Step 2 of the enrollment process.
(gg) “Site” means the residential home, commercial building, or other location identified in your UTILITYnet Sign-Up Form for which you require Energy Services. Unless otherwise specified, in this Energy Agreement “Site” shall be used to refer to one or more Sites.
(hh) “Stable Electricity Rate” has the meaning found in subsection 2.1(b).
(ii) “Stable Natural Gas Rate” has the meaning found in subsection 2.1 (d).
(jj) “Transaction Fee” applies to variable rates for Energy and has the meaning found in subsections 2.1(a) and 2.1(c).
(kk) “UTILITYnet Sign-up Form” means the UTILITYnet sign-up form located on the Energy Marketer’s website.
(ll) “Wire Distribution Company” means one of the companies in Alberta that owns and operates a distribution system of lines, transformers and switches to provide electricity to residential and commercial premises.
SCHEDULE “C” Top INTEREST RATE FOR PRUDENTIAL PAYMENT
The interest rate paid on funds held in the Customer’s prudential account will be calculated at 5.00% per annum.
INTERNET TERMS OF SERVICE
This is an agreement between you as the customer (“you”, “your” or “Customer”) and UTILITY NETWORK & PARTNERS INC. By using or subscribing to any of the internet services (the “Services”) provided by UTILITYnet or provided through UTILITYnet’s partners, resellers, or providers (collectively, “UTILITYnet”), you agree to the following terms and conditions of service (the “Terms of Service”). Please read all the Terms of Service before using the Services. If you do not wish to be bound by these Terms of Service or any modifications or amendments from time to time, do not subscribe for or use the Services. You will be bound by these Terms of Service even if you do not read all of the terms. If you continue to use the Services after any change or amendment to these Terms of Service, you will be bound by the changed or modified terms.
UTILITYnet has retained certain independent contractors or marketers to advertise and promote the Services. You may have dealings with such independent contractors or marketers, however, ultimately you are entering into these Terms of Service with UTILITYnet and UTILITYnet is providing you with the Services.
1.0 DEFINITIONS Top
1.1 “CCTS Deposit and Disconnection Code” is the code at https://www.ccts-cprst.ca/wp-content/uploads/2017/06/Deposit-and-Disconnection-Code.pdf or such updated code from time to time;
1.2 “Notice” means written notice from one party to another party under these Terms of Service, and in the case of the Customer, means the mailing address or email address as shown in the most recent receipt or invoice issued to Customer by UTILITYnet, and in the case of UTILITYnet means: 200, 1316 – 9 Ave SE, Calgary, AB, T2G 0T3, Fax: (403) 265.7290, E-mail: [email protected], or such updated contact information as posted in UTILITYnet’s “Contact Us” page on our site;
1.3 “Pricing Document” means the rate sheet, service schedule, service order, payment check-out page approved by Customer and UTILITYnet, or the invoice issued by UTILITYnet, as applicable, which lists the pricing applicable to the Services;
1.4 “Purchased Hardware” means hardware, devices, equipment provided to you by UTILITYnet under a sales arrangement.
1.5 “Rental Hardware” means hardware, devices, equipment provided to you by UTILITYnet under a rental arrangement.
1.6 “Services” is defined above, and includes any internet access services, technical support, or related services under these Terms of Services. If the Customer has agreed to obtain virus protection, spam control, spyware protection, VoIP Services, long distance services, or other ancillary services, and UTILITYnet has agreed to supply such services, then such services are included within the definition of “Services”;
1.7 “Term” means the term applicable to Customer’s Service subscription, as set forth in the Pricing Document applicable to the Customer;
1.8 “VoIP Services” is defined in Section 3.
2.0 SERVICES Top
2.1 Your Account. You will have access to the Services during the Term of this agreement. You are responsible for all uses of your account with UTILITYnet.
2.2 Acceptable Use. The Services may only be used in accordance with the UTILITYnet Acceptable Use Policy attached to these Terms of Service, as may be updated from time to time. The most recent version of the Acceptable Use Policy will be published at www.UTILITYnet.net.
2.3 Support.
a) UTILITYnet customer support will provide telephone support to Customers during the Term of this agreement on a reasonable efforts basis, via the telephone number and during the hours specified on UTILITYnet’s site, or as set forth in any Service Level Commitment Policy or support policy published by UTILITYnet.
b) If support is provided, it is expressly limited to the Services and (if applicable) Rental Hardware, and resolution of Customer issues related directly to use of the Services, from the designated service demarcation point. UTILITYnet does not provide on-site visits, nor does it provide maintenance, support, or repairs of third-party hardware, equipment and software, Internet availability or capacity (including third-party networks, cabling, facilities and equipment past the designated service demarcation point) or other issues beyond the reasonable control of UTILITYnet.
c) UTILITYnet customer support may create a ticket and refer Customer to third-party providers where support is escalated to any tier above the level of support provided by UTILITYnet, or as set forth in any support policy published by UTILITYnet.
2.4 Change to Services. UTILITYnet may from time to time, upon Notice to the Customer, add, create, amend, change, or delete any Service, including changing pricing for any Services, introducing new Services, substituting old Services for new Services, changing any Service features and deleting any Services, provided that the minimum level of Services and maximum level of pricing as set forth in the applicable Pricing Document are maintained for the duration of the remaining then-current term of this agreement.
2.5 Right of Termination. If the Customer does not agree with such changes, the Customer may, without liability to itself whatsoever, terminate its account pursuant to Section 14.
2.6 General Practices and Limits.
a) The Customer acknowledges that UTILITYnet may establish general practices and limits concerning the use of the Services as outlined in the Acceptable Use Policy, the attached Service Level Commitment Policy (as may be updated from time to time), or other applicable policies including: the maximum size of any e-mail message or other data that may be sent from or received by an account; the maximum disk space that will be allotted on UTILITYnet’s servers on the Customer’s behalf; the maximum amount of data, speed of data or type of data that may be sent from or received using the Services or account; and the maximum number of days that e- mail messages, voice messages or other data will be stored on UTILITYnet’s servers.
b) High Speed Services have transfer rate limits as described in the Pricing Document and any applicable policies issued by UTILITYnet. If the Customer’s transfer rate exceeds these limits, extra fees may be charged per gigabyte, or UTILITYnet may elect to terminate or suspend the Customer’s Services or account in accordance with Section 15.
c) The Customer agrees to comply with all such general practices and limits, provided that:
(i) All such general practices and limits comply with the negotiated limits outlined in the Pricing Document and any applicable policies issued by UTILITYnet; and,
(ii) Customer receives Notice of such general practices and limits.
The Customer agrees that violating such practices or exceeding such limits may result in suspension, restriction or termination of the Customer’s account or the imposition of additional charges.
d) All Services are subject to the availability of suitable equipment, facilities and infrastructure, and consequently all Services are not available at all locations.
2.7 Ancillary Services. Certain ancillary services may be provided to you during the Term of this agreement under the applicable Pricing Document issued by UTILITYnet. The Customer acknowledges that virus protection, spam control, or spyware protection these features are network-level services that attempt to filter such content before reaching the Customer’s equipment; thus, further acknowledges, that such Services will not protect the Customer’s equipment from any malicious, surreptitious or disabling code, virus, Trojan horse, spyware or spam, capable of circumventing such filters. The Customer acknowledges that UTILITYnet’s installation obligations will be limited to the specific services listed in the applicable Pricing Document, and Customer is responsible for meeting minimum requirements, configuring, and maintaining the necessary systems before and after installation.
2.8 Internet-based Services. The Customer acknowledges that the Services provided depend on Internet availability and capacity (including networks, cabling, facilities and equipment that is not in the control of UTILITYnet) that depend on third-party providers; accordingly:
a) Any representation made by UTILITYnet regarding access performance, speeds, reliability, availability, use or consistency of the Services are on commercially reasonable efforts basis;
b) UTILITYnet cannot guarantee any minimum level regarding such performance, speed, reliability, availability, use or consistency, but shall undertake at all times to provide commercially reasonable efforts to ensure the minimum standards outlined in the Pricing Document and any applicable policies are maintained; and
c) The speed and reception of WIFI signal may vary depending on the location and configurations of the wireless modem router, the location and capabilities of the wireless devices, the number of neighbouring wireless networks, the number of WIFI devices on the network and the building materials of the residence. UTILITYnet cannot guarantee that the WIFI enabled modem purchased or rented by the Customer will provide total coverage of the Customer’s residence. The Customer may be required to purchase a third-party WIFI booster/extender/access point to achieve desired WIFI connectivity. UTILITYnet is not responsible for the cost associated with purchasing these third-party WIFI booster/extender/access point; as stated in 2.3 (a) UTILITYnet does not provide support for third-party hardware, equipment and software; and
d) Any data, messages, information or materials sent over the Internet (such as calls made using VoIP Services, or e-mail messages sent or received) may not be completely private, and the Customer’s anonymity is not guaranteed.
2.9 Interoperability. UTILITYnet does not guarantee or make any representation or warranty that any Service will operate with any particular equipment or software, including all Internet applications, devices and appliances. It is the Customer’s responsibility to ensure that the Customer’s equipment and software meet the current minimum requirements specified from time to time by UTILITYnet as being necessary for access to any of the contemplated Services (however, compliance with such minimum requirements does not guarantee compatibility with the Services).
2.10 Changes to Requirements. From time to time, the equipment or software required to access the Services may change. Accordingly, the Customer’s equipment or software may cease to be adequate to access the contemplated Services. In such circumstances, the Customer may choose to upgrade the Customer’s equipment or software, the cost of which will be borne by the Customer; alternatively, the Customer may choose to terminate the Customer’s account in accordance with Section 14.
2.11 Risks. The Services or any equipment used to access the Services may interrupt the functioning of some home or business security systems or other devices that use the same phone line(s), communications hardware or protocols. UTILITYnet will endeavor to warn Customer prior to any (potential) interruptions that may occur to the best of its knowledge and ability. The Customer acknowledges that UTILITYnet is not responsible for any such problems or interruptions. The Customer is responsible for ensuring that the Customer’s premises are appropriately wired to ensure proper functioning of any such security systems or other devices prior to installation of the Services.
3.0 VOIP SERVICE-SPECIFIC PROVISIONS
IF THE SERVICES INCLUDE VOICE-OVER-INTERNET-PROTOCOL (VOIP) SERVICES (“VoIP Services”), THIS SECTION APPLIES, AND CONTAINS IMPORTANT PROVISIONS, INCLUDING THOSE REGARDING 911 ACCESS. PLEASE READ CAREFULLY. Top
3.1 Description. VoIP Services allow the Customer to make or receive telephone calls over the Internet to or from the public switched telephone network (“VoIP Calls”). The nature of VoIP Calls, while appearing similar to traditional telephone calling services, create unique limitations and circumstances and the Customer acknowledges that differences exist between traditional telephone service and the VoIP Services, including the lack of traditional 911 services and other privacy issues.
3.2 911 Service. Because of the unique nature of VoIP Calls, emergency calls to 911 through the VoIP Service (a “911 Call”) will be handled differently than traditional phone service. The following provisions describe the differences and limitations of 911 Calls:
a) Placing a 911 Call. When an individual makes a 911 Call, the VoIP Service will attempt to automatically route the Customer’s 911 Call through a third-party service provider to the Public Safety Answering Point (“PSAP”) corresponding to the address on record with the Customer’s account. However, due to the limitations of the VoIP System, the Customer’s 911 Call may be routed to a different location than that which would be used for traditional 911 dialing. For example, the Customer’s call may be forwarded to a third-party, specialized call centre that handles emergency calls. This call centre is different from the PSAP that would answer a traditional 911 call, and the Customer may be required to provide the Customer’s name, address, and telephone number to the call centre.
b) How the Customer’s Information is Provided. The VoIP Service will attempt to automatically provide the PSAP dispatcher or emergency service operator (a “Dispatcher”) with the name, address and telephone number associated with the Customer’s account. However, for technical reasons, the Dispatcher may not be able to capture or retain the Customer’s name, phone number or physical location. Therefore, when making a 911 Call, an individual must immediately inform the Dispatcher of their location (or the location of the emergency, if different). If the individual is unable to speak, the Dispatcher may not be able to locate the Customer.
c) Correctness of Information. The Customer is responsible for providing, maintaining and updating correct contact information (including name, residential address and telephone number) associated to the Customer’s account. If the Customer does not correctly maintain or update this information, 911 Calls may be misdirected to an incorrect Dispatcher.
d) Disconnections. The caller must not disconnect the 911 Call until told to do so by the dispatcher, as the dispatcher may not have the Customer’s number or contact information. If the call is inadvertently disconnected, the individual must call back immediately.
e) Connection Time. For technical reasons, including network congestion, it is possible that a 911 Call will produce a busy signal or will take longer to connect when compared with traditional calls.
f) 911 Calls May Not Function. For technical reasons, the functionality of a 911 Call may cease or be curtailed in various circumstances, including:
(i) Failure of Service or Service Access Device – if the Customer’s Service Access Device fails or is not configured correctly or if the Customer’s VoIP Service is not functioning for any reason, including in the event of power outage, VoIP Service outage, suspension or disconnection of the Customer’s Service due to billing issues, network or Internet congestion, or network or Internet outage, in the event of a power, network or Internet outage, the Customer may need to reset or reconfigure the Service Access Device before being able to use the VoIP Service, including for a 911 Call;
(ii) Changing Location of Service Access Device – if the Customer moves the Customer’s Service Access Device to a location other than that described in the Customer’s account information or otherwise on record with UTILITYnet; and,
(iii) Use outside of Canada or the United States – if the Customer moves the Customer’s System Access Device to a location other than one located in the USA or Canada (excluding Alaska, Hawaii, the Northwest Territories, Yukon and Nunavut).
(iv) Alternate Services – if the Customer is not comfortable with the limitations of 911 Calls, UTILITYnet recommends that the Customer terminate the Services or consider an alternate means for accessing traditional 911 services.
(v) Inform Other Users – the Customer is responsible for notifying, and the Customer agrees to notify, any user of the Customer’s VoIP Services of the nature and limitations of 911 Calls on the VoIP Services as described herein.
(vi) No Liability and Indemnity – the Customer acknowledges that UTILITYnet will not be liable for any service outage or inability to place 911 Calls using the Customer’s VoIP Service or to access emergency service personnel due to the limitations of 911 service described herein.
3.3 Privacy. The Customer acknowledges that VoIP Calls and VoIP Services utilize, in whole or in part, the public Internet and third-party networks to transmit voice and other communications, which transmissions may be intercepted by other parties.
3.4 411 Service. The 411-information service is available at UTILITYnet’s current rates as set by UTILITYnet’s website, any changes to the said rate shall be subject to the Notice to the Customer.
3.5 900 and 976 Numbers. VoIP Calls to certain special service phone numbers, including 900- and 976- numbers, may be limited and UTILITYnet reserves the right to limit the Customer’s ability to call any such number at its discretion.
3.6 Telephone Number Portability. The Customer may be able to transfer an existing telephone number to the Customer’s VoIP Service or the Customer’s VoIP Service telephone number to another service provider, provided that the Customer’s account is in good standing. However, UTILITYnet will not be responsible for any termination fees imposed by any other service provider as a result of the Customer transferring or instructing UTILITYnet to transfer the Customer’s existing number to the Services. UTILITYnet cannot guarantee or warrant the timeliness or date of any transfer, nor can it guarantee that the Customer will be able to transfer the said number.
3.7 Directory Services. UTILITYnet will make the Customer’s name, address and telephone numbers available to publishers of paper and electronic telephone directories and to providers of operator services, in accordance with legal, contractual or regulatory requirements.
3.8 Limit on Usage Patterns. UTILITYnet reserves the right to terminate, curtail or suspend the Customer’s VoIP Services if the Customer’s calling patterns materially exceed the negotiated limits outlined in the Pricing Document or applicable policies, or, if the Customer breaches any part of this agreement.
3.9 Bandwidth Usage. VoIP calls require high-speed Internet bandwidth, which may affect throughput over any High-Speed Services and will count towards the Customer’s bandwidth usage for all High-Speed Services.
3.10 Specific Prohibitions. The Customer is prohibited from using any VoIP Services for: automatic-dialing announcing devices and unsolicited voice and facsimile calls made for the purpose of solicitation; or, any application with continuous or excessive calling patterns for telemarketing (including charitable and political solicitation and polling), fax broadcasting or fax blasting
3.11 Long Distance Services. Some of the Services may include the ability for the Customer to place long-distance telephone calls. By dialing or placing a long-distance telephone call, the Customer agree to pay UTILITYnet’s then-current rates and fees for such calls. Section 3.8 also applies to long distance services.
4.0
HARDWARE TERMS
IF THE SERVICES INCLUDE SUPPLY OF RENTAL HARDWARE, THIS SECTION APPLIES, AND CONTAINS IMPORTANT PROVISIONS. PLEASE READ CAREFULLY. Top
4.1 If Rental Hardware is provided to you under the applicable Pricing Document issued by UTILITYnet, you agree to the following additional terms:
a) These Terms of Service govern any Rental Hardware provided to you during the Term of this agreement.
b) UTILITYnet may install or cause to be installed the Rental Hardware in the Service Location identified in the Pricing Document. The Rental Hardware is provided for your use of the Services and will at all times remain the property of UTILITYnet. You will not sell, lease, transfer or assign the Rental Hardware, nor permit any lien or encumbrance on such equipment. You may use the Rental Hardware only at the Service Location address you have indicated to UTILITYnet at the time you subscribe to the Services. You will not re-arrange, disconnect, remove, repair or otherwise interfere with the Rental Hardware nor will you relocate the Rental Hardware to another address without UTILITYnet’s prior written consent.
c) You may be required to pay a Rental Hardware deposit prior to providing you with the Rental Hardware. You may be required to provide access to the Rental Hardware as may be reasonably necessary under the circumstances for installation, maintenance or repair purposes.
d) UTILITYnet’s employees, agents or personnel will show identification prior to entering any location where the Rental Hardware is located. UTILITYnet will make all reasonable efforts to provide you with reasonable notice before accessing any such location. You are responsible to obtain access rights for UTILITYnet employees, agents or personnel for purposes of installation, maintenance or repair of the Rental Hardware.
e) You are required to return the Rental Hardware to UTILITYnet in good working order as follows (i) if your Services have expired or are terminated, within thirty (30) days of your Services being disconnected, (ii) if UTILITYnet has replaced or upgraded your Rental Hardware, within thirty (30) days of the replacement or upgrade order, or (iii) if UTILITYnet has provided you Rental Hardware for self-install and you do not install such Rental Hardware, within thirty (30) days of the self-install order.
f) You are responsible for the safekeeping of the Rental Hardware. If, while in your care, the Rental Hardware is damaged, lost or stolen, or you fail to return the Rental Hardware, you agree to pay UTILITYnet the full cost, including the costs incurred by UTILITYnet to recover, repair or replace the Rental Hardware. You hereby authorize UTILITYnet to charge your account and process payment for all Rental Hardware charges, plus applicable taxes, using any of the payment methods accepted by UTILITYnet for your account (including pre-authorized credit card or bank withdrawal).
g) Should you choose to purchase the Rental Hardware during your term, UTILITYnet will credit 50% of your previously paid rental fees towards the purchase price of the Rental Hardware.
4.2 If Customer chooses the option to purchase any Purchased Hardware under the applicable Pricing Document issued by UTILITYnet, you agree to the following additional terms:
a) UTILITYnet agrees to supply and the Customer agrees to purchase the Purchased Hardware subject to these terms and any additional terms in the Pricing Document issued by UTILITYnet.
b) UTILITYnet shall deliver the Purchased Hardware to Customer EXW Calgary, Alberta, via common carrier to the shipping address supplied in the Pricing Document. UTILITYnet shall not be liable in any claim asserted by Customer with respect to delivery. Partial deliveries or deliveries in stages will be permitted. If Purchased Hardware does not correspond in quantity, type or price to those itemized in the corresponding Pricing Document, Customer will notify UTILITYnet within 5 days after receipt.
c) If installation is part of the services in the Pricing Document, UTILITYnet will install or cause to be installed the Purchased Hardware in the Service Location identified in the Pricing Document.
d) UTILITYnet’s employees, agents or personnel will show identification prior to entering any location where the Purchased Hardware is located, for the purposes of installation (if applicable). UTILITYnet will make all reasonable efforts to provide you with reasonable notice before accessing any such location. You are responsible to obtain access rights for UTILITYnet employees, agents or personnel for purposes of installation of Purchased Hardware.
e) Title to Purchased Hardware shall pass to Customer when the purchase price is paid in full, or when Purchased Hardware is made available to the common carrier for shipment from UTILITYnet’s facility whichever is first. After delivery to Customer, the Purchased Hardware will be the sole responsibility of Customer.
f) If the Purchased Hardware fails to operate within 6 months of the date of purchase, UTILITYnet will replace the hardware with a similar type and model, free of charge. Any hardware failures after this 6 month term will be the sole responsibility of the customer.
5.0
PAYMENT TERMS
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5.1 During the Term of this agreement you agree to pay UTILITYnet the total charges for use of the Services as set forth in the applicable Pricing Document from UTILITYnet, including, without limitation the following (if applicable): fees applicable to installation, support, Rental Hardware, Purchased Hardware, deposits, or non-return charges; processing fees, costs incurred by UTILITYnet and interest charges, if your account is past due; service calls; toll or long distance uses; plus any applicable federal, provincial, or regulatory taxes or surcharges, incurred in connection with the access to or use of the Services (as all such fees may be changed from time to time).
5.2 You must pay all amounts by the due date indicated on the applicable Pricing Document. Amounts owing after the due date are subject to a late payment interest charge calculated and compounded monthly on the outstanding amount at 2% per month (26.8% per year) from the date of the first bill on which it appears until paid in full.
5.3 Invoicing Process.
a) UTILITYnet will provide you with the applicable Pricing Document (invoice) on a monthly basis, which will be posted to your My Account Portal for you to download and save. You will also receive a billing notification email informing you that your monthly invoice has been posted.
b) Your invoice will include charges and adjustments for all services supplied to you under your chosen internet Services plan, as well as other charges as set out in these Terms of Service.
c) Subject to applicable laws, you remain liable for all charges on your invoice, including if you do not receive your invoice on time, or at all, for any reason. This includes, without limitation, an interruption in Internet services or postal services, or a situation where we do not have your correct Contact Information.
d) Our ability to invoice you on a monthly basis is dependent upon the ISP Wholesaler providing us with the necessary information in a timely manner. You acknowledge and agree that UTILITYnet will not be liable for any billing delay caused by the ISP Wholesaler’s failure to provide necessary information in a timely manner.
e) Unless otherwise indicated on the applicable Pricing Document at the time you place your order, all sales are final and no fees will be refunded if you cancel your Services.
f) Paper Invoice Charge. A $3.25 charge per service, will be added to your monthly invoice, if you request that a paper copy of your invoice be mailed to your address. This charge is subject to change without notice.
5.4 If your account remains unpaid for 30 days, UTILITYnet may take steps to enforce payment including: we may suspend or disconnect your account in accordance with the CCTS Deposit and Disconnection Code, we may refer your account to a collections agency, and for enforcement of any late payments, you agree to pay a fee of $45.00 for administration, processing, and service costs for your account (for example, collections efforts due to NSF, non-payment or suspension, disconnection or reactivation of your Services). In the special case of the first invoice: if account remains unpaid for 7 days past the notification of non-payment, UTILITYnet may take steps to suspend your account. If your first invoice remains unpaid until the day before the next statement date of the following invoice, UTILITYnet may take steps to disconnect your service altogether. A fee of $45.00 for administration, processing, and service costs are applicable.
5.5 If your account is restarted after suspension, payment of the full amount due in addition to a $25 reconnection fee may be required before the Services may be restored, provided UTILITYnet is not under any obligation to restore the Services to any customer who repeatedly fails to make timely payment of the amounts owing, or abuses UTILITYnet’s Acceptable Use Policy, or any other applicable policy published by UTILITYnet.
5.6 You are responsible to ensure that the billing information you provide UTILITYnet is accurate. You agree to promptly provide Notice to UTILITYnet of any changes in your billing information.
5.7 If we have to take extra enforcement steps then you will be responsible for those additional costs including legal fees and expenses, collection agency fees or payments and court costs incurred by UTILITYnet to collect any amounts owing under these Terms of Service.
5.8 If you are receiving the Services through a trial period or promotional offer, you agree that upon the expiry of such trial or promotional period, you will be abide by the payment obligations in the invoice or order confirmation from UTILITYnet.
5.9 You must bring billing invoice questions and disputes to UTILITYnet’s attention within 60 days of the invoice date. Your failure to contact UTILITYnet regarding any invoice will constitute your acceptance of the invoice.
6.0
PRE-AUTHORIZED DEBIT (“PAD”) PAYMENTS
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6.1 By entering into these Terms of Service you are also providing authorization for PAD payments to be withdrawn from your bank account to pay your invoices during the Term of this agreement. As such:
a) YOU HEREBY ACKNOWLEDGE THAT YOU ARE PROVIDING YOUR EXPRESS AUTHORIZATION FOR THE BENEFIT OF UTILITYnet AND YOUR BANK, TO PROCESS INVOICE PAYMENTS AND CREDITS AGAINST YOUR BANK ACCOUNT IN ACCORDANCE WITH THE RULES OF THE CANADIAN PAYMENTS ASSOCIATION;
b) YOU HEREBY WARRANT AND REPRESENT THAT THE DIGITAL SIGNATURE ON THESE TERMS OF SERVICE ALSO ACTS AS A SIGNATURE TO AUTHORIZE YOUR PAD PAYMENTS;
c) YOU ARE HEREBY AUTHORIZING YOUR BANK TO PROCESS PAD PAYMENTS FOR UTILITYnet TO WITHDRAW FROM OR DEPOSIT INTO YOUR ACCOUNT WITH THE BRANCH OF THE FINANCIAL INSTITUTION WHERE YOU MAINTAIN A BANK ACCOUNT;
d) In order to set up your PAD payments, you will need to provide a void cheque to UTILITYnet that sets out your name, current address, and bank account information. The name on your void cheque must match your name on these Terms of Service;
e) You acknowledge and agree that your bank is not required to verify that each PAD payment has been issued in accordance with the particulars of your authorization including, but not limited to, the amount of your monthly payment;
f) You acknowledge and agree that your bank is not required to verify that UTILITYnet has fulfilled its obligations under these Terms of Service prior to issuing any PAD payment;
g) On your bank statement, your PAD payments will be identified as being made to “UTILNET-INT” for internet services payments;
h) UTILITYnet shall not assign this authorization, whether directly or indirectly, except if it sells its business, and only after providing you with 10 days written Notice. Unless UTILITYnet sells its business, it will not share any of your banking information;
i) You agree to provide Notice to UTILITYnet in writing of any change to your bank account information at least 10 days prior to the next due date of your PAD payment, or as soon as possible if a change is made within 10 days of the next due date;
j) You may revoke your PAD authorization at any time by providing UTILITYnet with Notice a least 10 days prior to the next due date of your PAD payment. If Notice is not provided to UTILITYnet in time, one further payment may be withdrawn from your bank account;
k) Revocation of this PAD payment authorization does not terminate any of the other terms of these Terms of Service. If you have an outstanding amount due and payable to UTILITYnet, you must provide UTILITYnet with another form of payment; and
l) You have certain recourse rights if any debit does not comply with this section. For example, you have the right to receive reimbursement for any PAD payment that is not authorized by or is not consistent with this section or these Terms of Service. For more information on your recourse rights you may contact your bank or visit www.cdnpay.ca.
7.0 CREDIT AND SECURITY DEPOSIT Top
7.1 UTILITYnet reserves the right to examine your credit records at any time, whether before or after providing you the Services, and to require a security deposit, pursuant to the CCTS Deposit and Disconnection Code.
7.2 Security Deposit. A Security Deposit may be required in accordance with the following provisions:
a) a Customer may be required to provide a Security Deposit if:
i) the Customer has no credit history,
ii) the Customer has a poor credit rating, or
iii) the Customer’s previous internet service access was cancelled for non-payment;
b) Security Deposit will be taken in the amount of $200
c) UTILITYnet will debit the full amount of the Security Deposit from a Customer’s bank account prior to service activation and the service will not be activated until the Security Deposit has been paid in full;
d) the Security Deposit will be fully refundable by UTILITYnet, if you cancel this Agreement during the regulated 10-day cancellation period;
e) the Security Deposit will be held in a UTILITYnet non-interest bearing trust account and refunded to you in full if you make 12 consecutive required payments without default;
e) if you default on any of your payments while UTILITYnet is holding your Security Deposit, UTILITYnet may use all or a portion of your Security Deposit to cover your outstanding payment amount.
8.0 INTELLECTUAL PROPERTY RIGHTS Top
8.1 UTILITYnet owns its trademarks and logos and does not grant any trademark rights to you under these Terms of Service. The Services, or content provided to you through the Services may be subject to intellectual property rights of UTILITYnet or others. You are not granted a license or right to use any other intellectual property rights of UTILITYnet or any third party by virtue of these Terms of Service.
8.2 You should be aware that federal law provides severe civil and criminal penalties for the infringement or unauthorized reproduction or distribution of copyrighted content. UTILITYnet will not be liable for any infringement or unauthorized reproduction or distribution of copyrighted content that takes place through your account.
9.0 SERVICE INTERRUPTIONS Top
9.1 UTILITYnet or its agents may interrupt the Services at any time for any duration of time, without notice or liability to you, in order to install, inspect, repair, replace or perform necessary maintenance on the UTILITYnet facilities or network, or for other technical reasons as may be required. UTILITYnet’s service providers may interrupt the Services at any time for any duration of time for similar reasons.
9.2 You should be aware that the Services cannot function in the event of a power failure regardless of where the power failure arises.
9.3 Notwithstanding anything to the contrary in these terms, UTILITYnet’s responsibility or liability for any Service interruption, suspension, delay or network outage will be to provide a credit (if applicable) to Customer’s account, as outlined in the attached Service Level Commitment Policy, or the applicable Pricing Document.
10.0 LIMITS ON PROVISION OF SERVICES Top
10.1 UTILITYnet is not required to provide the Services where:
a) You are located outside of UTILITYnet’s service or licensed geographic area;
b) You have failed to make payment of the amounts due for the Services or the Rental Hardware; or
c) UTILITYnet would have to incur unusual expenses to bring the Services to your location, which you do not agree to pay.
11.0 SOFTWARE AND FIRMWARE UPDATES
11.1 You expressly agree to receive software and firmware updates in relation to the Services. Such updates may change, add or remove features or functionalities of Rental Hardware, other connected equipment or the Services.
12.0 CONFIDENTIALITY & PRIVACY Top
12.1 By agreeing to these Terms of Service, you also agree to UTILITYnet’s Privacy Policy.
12.2 Subject at all times to UTILITYnet’s Privacy Policy, UTILITYnet may disclose any information as is necessary to:
a) satisfy any legal or regulatory requirement or governmental request;
b) obtain, deliver, operate and market the Services; or
c) protect UTILITYnet, its partners, affiliates, or its customers.
13.0
CHANGES TO TERMS OF SERVICE
13.1 If Customer Moves Locations. Customers are responsible to provide Notice to UTILITYnet at least 30 days prior to the date of moving addresses or locations. Where applicable, Customer agrees to pay UTILITYnet for all charges and administrative fees associated with a change in location. If you move to a location that is outside of the area served by UTILITYnet and are not subject to a service agreement, these Terms of Service shall be terminated and you must return all Rental Hardware to UTILITYnet (if applicable).
13.2 Changing the Name on Your Account.
a) You agree and represent that you are the account holder in relation to the Services or are authorized by the account holder in relation to the Services and have the authority to enter into these Terms of Service. We are relying on this representation for the purposes of these Terms of Service.
b) If you change your name legally, or as a result of marriage or divorce, you may change your name on your account and with respect to these Terms of Service, by providing us with evidence of your name change such as a copy of your marriage certificate or updated government issued photo identification like a driver’s license or passport.
c) The name associated with your account and these Terms of Service must match the name associated with your bank account used to pay for the Services.
13.3 Adding a Contact Person to Your Account.
a) You may add another person to your account, whom you authorize to make decisions regarding your account and these Terms of Service (your “Additional Contact”). You agree that UTILITYnet may fully rely on, and that you will be bound by, the decisions, information and directions provided by your Additional Contact. This may include contacting us to discuss your invoices, making decisions about rates or updating banking or personal information (such as email address etc.).
b) Your Additional Contact may not open or close an account in your name. Your Additional Contact’s name will not be displayed on the invoice but will be noted in our records.
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13.4 Changes to the Agreement. We reserve the right to amend the terms of these Terms of Service from time to time. We will provide you with notice of any changes to these Terms of Service. You acknowledge and agree that we may provide you with formal notice:
a) on one of your monthly invoices;
b) included with one of your monthly invoices; or
c) sent by email to the most recent email address you have provided to us.
14.0
CUSTOMER-INITIATED TERMINATION
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14.1 In relation to residential accounts, you may terminate the Services at any time by providing advance written Notice to UTILITYnet, provided that Customer pays UTILITYnet all unpaid charges for such Services and any required termination charges. Account cancellation by the Customer within the first 30 days after activation will be subject to payment of a $100 administration fee.
14.2 In relation to business accounts, you may terminate the Services as follows:
a) Where the total charges for use of the Services in the preceding month is less than $2,500, you may terminate the Services at any time by provide advance written Notice to UTILITYnet of your desire to terminate, provided that Customer pays UTILITYnet all unpaid charges for such Services and any required termination charges; or
b) Where the total charges for use of the Services in the preceding month is greater than $2,500, you may terminate the Services at any time by providing UTILITYnet no less than 30 days’ written Notice of your desire to terminate, in which event Customer will pay to UTILITYnet all unpaid charges for such Services and any required termination charges.
c) Account cancellation by the Customer within the first 30 days after activation will be subject to payment of a $100 administration fee.
14.3 You agree that if the Services are terminated for any reason you will:
a) pay UTILITYnet in full for any amounts due and outstanding for your use of the Services, plus applicable taxes, including any applicable early termination fees; and
b) return the Rental Hardware to UTILITYnet (if applicable).
14.4 On or after expiry or termination of the Services for any reason, if your account has a credit balance less than ten dollars ($10.00), this credit balance will not be automatically refunded to you when Services expire or are terminated. If your account has a credit balance of ten dollars ($10.00) or more, we will refund that balance to you within thirty (30) days by processing the refund via PAD or another refund method that we may implement from time to time. It is your responsibility to obtain the refund through the designated platform within the specified time. Unclaimed refunds may result in forfeiture to UTILITYnet of the credit balance amount.
15.0
UTILITYnet INITIATED TERMINATION OR SUSPENSION
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15.1 UTILITYnet may terminate these Terms of Service without cause on 30 days’ written Notice to the Customer; and may disconnect, restrict, block, suspend or terminate all or any part of the Services immediately where you:
a) fail to make timely payment on your account for the Services and, in the case of a termination, such failure has continued for more than 60 days; provided, however, that in the case of suspension or termination when your account balance is more than $50, such failure has continued for more than 30 days;
b) become bankrupt or otherwise insolvent;
c) fail to provide UTILITYnet with reasonable entry and access to install, inspect, repair, replace or to perform necessary maintenance on the Rental Hardware, or UTILITYnet’s facilities or network;
d) are in breach of any term or condition of these Terms of Service or of UTILITYnet’s Acceptable Use Policy, or any other policies applicable to the Services to which you subscribe;
e) have been, during any 12 month period, in breach three or more times of any term or condition of these Terms of Service or of UTILITYnet’s Acceptable Use Policy, or any other policies applicable to the Services to which you subscribe, whether or not any breach is cured or remedied; or
f) if you relocate, alter, abuse or disconnect the Rental Hardware (if applicable).
For the situations listed above, UTILITYnet will attempt to notify you using the information shown on your account stating the reason and date scheduled for the suspension or termination.
15.2 Despite the above, UTILITYnet will not provide you notice of a proposed restriction, block, suspension or termination:
a) if immediate action must be taken to protect UTILITYnet’s facilities, Rental Hardware, or network, or if suspension is required by legal requirement, court order, ordinance or regulatory authority;
b) if UTILITYnet believes that extreme circumstances exist, or that there is an abnormal risk of loss involved in delaying the suspension or termination;
c) if you misuse or abuse or permit others to misuse or abuse the Services for purposes that are contrary to law, these Terms of Service or UTILITYnet’s Acceptable Use Policy; or
d) in an emergency situation.
15.3 If all or any part of the Services are disconnected, restricted, blocked, suspended or terminated for cause, UTILITYnet is not obligated to restore the Services. If UTILITYnet agrees to restore your Services, a reconnection service charge may be applied. Any disconnection will be conducted in compliance with the CCTS Deposit and Disconnection Code.
15.4 On or after expiry or termination of the Services for any reason, if your account has a credit balance of less than ten dollars ($10.00), this credit balance will not be automatically refunded to you when Services expire or are terminated. If your account has a credit balance of ten dollars ($10.00) or more, we will refund that balance to you within thirty (30) days by processing the refund via PAD or another refund method that we may implement from time to time. It is your responsibility to obtain the refund through the designated platform within the specified time. Unclaimed refunds may result in forfeiture to UTILITYnet of the credit balance amount.
16.0
UTILITYnet’S LIABILITY
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16.1 UTILITYnet shall not be liable for:
a) any interruption or unavailability of the Services;
b) any act or omission of any third party including, but not limited to, any other local telephone company, any connecting carrier or underlying carrier or other provider of connections, facilities or services;
c) your conduct, acts or omissions;
d) any event beyond the reasonable control of UTILITYnet including acts of God, inclement weather (including lightning), power failures, labour disputes, riots or civil disputes, war or armed conflict, any law, governmental order, decision or regulation, or order of any court of competent jurisdiction;
e) UTILITYnet’s failure, for any reason, to activate the Services on the activation date you requested or date provided to you by UTILITYnet;
f) any damage to any location resulting from the installation or attachment of any instruments, apparatus or associated wiring or the Rental Hardware furnished by UTILITYnet, or removal thereof, when such defacement or damage is not wholly caused by UTILITYnet’s negligence;
g) any damages you incur as a result of the operation or failure of equipment owned or provided by customer, or other hardware, facilities, wiring or other devices that you use with the Services; and
h) any incompatibility of any Rental Hardware or equipment owned or provided by customer, or other hardware, facilities, wiring or other devices.
17.0
LIMITATION OF LIABILITY
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17.1
IN THE EVENT OF ANY BREACH BY UTILITYnet, INCLUDING ANY BREACH OF A FUNDAMENTAL TERM OR ANY NEGLIGENCE BY UTILITYnet, YOUR EXCLUSIVE REMEDY SHALL BE TO RECEIVE FROM UTILITYnet PAYMENT FOR ACTUAL AND DIRECT DAMAGES TO A MAXIMUM AMOUNT EQUAL TO THE FEES PAID BY YOU TO UTILITYnet IN THE PAST THREE MONTHS FOR THE SERVICES.
UNDER NO CIRCUMSTANCES SHALL UTILITYnet BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS AND LOSS OF BUSINESS OPPORTUNITIES, THAT RESULT IN ANY WAY FROM THESE TERMS OF SERVICE, INCLUDING YOUR USE OF THE RENTAL HARDWARE OR SERVICES, OR YOUR RELIANCE ON OR USE OF ANY INFORMATION, SERVICE, MERCHANDISE OR MATERIAL VIEWED OR PROVIDED ON OR THROUGH USE OF THE SERVICES, OR THAT RESULT FROM NETWORK OUTAGES, POWER OUTAGES, MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, FAILURES OR DELAYS IN RECEPTION OR TRANSMISSION, OR FAILURE OF PERFORMANCE OF THE SERVICES.
17.2 UTILITYnet SHALL NOT BE LIABLE FOR, AND YOU SHALL INDEMNIFY AND SAVE UTILITYnet HARMLESS FROM AND AGAINST ALL SUITS, CLAIMS OR JUDGMENTS HOWSOEVER ARISING OUT OF ANY OF THE FOLLOWING:
a) CLAIMS FOR DEFAMATION, INFRINGEMENT OF COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY OR BASED ON ANY OTHER LEGAL THEORY HOWSOEVER ARISING FROM THE MATERIAL, DATA OR OTHER CONTENT FROM THE SERVICES
b) ANY LOSSES, DAMAGES, EXPENSES OR COSTS (INCLUDING LEGAL FEES) ARISING OUT OF OR IN CONNECTION WITH ANY CLAIM, OR OTHER PROCEEDING BASED ON A CONTENTION THAT THE USE OF THE RENTAL HARDWARE OR THE SERVICES BY YOU OR A THIRD PARTY INFRINGES ANY INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY;
c) BREACH BY YOU OF THE ACCEPTABLE USE POLICY OR OTHER APPLICABLE POLICIES; OR
d) CLAIMS BY THOSE TO WHOM YOU PROVIDE ACCESS TO THE RENTAL HARDWARE OR THE SERVICES.
17.3 FOR THE PURPOSES OF THIS SECTION, ANY REFERENCE TO “UTILITYnet” SHALL INCLUDE UTILITYnet, ITS PARTNERS, RESELLERS, PROVIDERS OR ASSOCIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS, SUCCESSORS AND ASSIGNS.
18.0
DISCLAIMERS
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18.1 UTILITYnet does not provide any warranties of any kind with respect to content that you may access through the Services. You acknowledge that there may be programming content or other content that you may find offensive and you agree that your viewing or use of such content is at your own risk. Some programming or content may not be suitable for minors and you agree to supervise all minors whom you permit to view the programming or access the content from the Internet through your account with UTILITYnet.
18.2 UTILITYnet does not provide any warranties of any kind with respect to ethernet devices, digital cable terminals, digital video recorders, devices, equipment, hardware or software of third parties (including any ethernet devices, digital cable terminals, digital video recorders, devices, equipment, hardware or software owned by you) used in conjunction with the Services.
18.3 UTILITYnet does not warrant uninterrupted use of the Services and will not apply any rebate for service interruptions.
18.4 ALL RENTAL HARDWARE AND THE SERVICES ARE PROVIDED BY UTILITYnet “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. UTILITYnet DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE RENTAL HARDWARE OR THE SERVICES. UTILITYnet DOES NOT WARRANT THAT ANY DATA OR COMMUNICATION SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME, OR THAT ANY CONTENT OR OTHER MATERIAL ACCESSIBLE ON OR FROM THE SERVICES ARE FREE OF DEFECT, ERROR OR VIRUSES. UTILITYnet DOES NOT WARRANT THE CONTENT, INCLUDING WITHOUT LIMITATION CONTENT OF ANY PROGRAMMING OR ADVERTISING THAT IS ACCESSIBLE ON OR FROM THE SERVICES. ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NONINFRINGEMENT, OR ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABLE QUALITY WITH REGARD TO ANY MERCHANDISE, INFORMATION, PROGRAMMING, ADVERTISING, CONTENT OR SERVICE AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXCLUDED.
19.0
DISPUTES AND GOVERNING LAW
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19.1 ANY DISPUTES OR CLAIMS (“CLAIMS”) WHATSOEVER BETWEEN UTILITYnet AND YOU WILL BE REFERRED TO AND DETERMINED BY ARBITRATION TO THE EXCLUSION OF THE COURTS. IF YOU HAVE A CLAIM YOU SHOULD GIVE WRITTEN NOTICE TO ARBITRATE TO UTILITYnet AT
Utility Network & Partners Inc.
Suite 200, 1316 9th Avenue SE
Calgary, AB T2G 0T3
or such updated contact information as posted in the “Contact Us” page on our site.
ARBITRATION WILL BE CONDUCTED BY ONE ARBITRATOR PURSUANT TO THE LAWS AND RULES RELATING TO COMMERCIAL ARBITRATION IN THE PROVINCE OF ALBERTA. YOU AGREE TO WAIVE ANY RIGHT YOU MAY HAVE TO COMMENCE OR PARTICIPATE IN ANY CLASS ACTION AGAINST UTILITYnet RELATED TO ANY CLAIM. YOU ALSO AGREE TO OPT OUT OF ANY CLASS PROCEEDINGS AGAINST UTILITYnet. IF UTILITYnet HAS A CLAIM, UTILITYnet WILL GIVE YOUR NOTICE TO ARBITRATE AT YOUR BILLING ADDRESS. IF THE CLAIM RELATES TO A MATTER THAT SHOULD BE BROUGHT BEFORE THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION (CRTC) OR OTHER CUSTOMER COMPLAINTS BODY SET UP TO ADDRESS SUCH MATTERS, YOU AGREE THAT THE CRTC OR SUCH BODY WILL RESOLVE THE CLAIM. THIS PARAGRAPH IS SUBJECT TO ANY PROHIBITIONS UNDER APPLICABLE LAW.
20.0
COMMISSIONER FOR COMPLAINTS FOR TELECOM-TELEVISION SERVICES (CCTS)
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20.1 CCTS is an independent agency whose mandate is to resolve complaints of individual and small business customers about their broadcasting and telecommunications services, free of charge. If you have a complaint about your telephone, wireless, internet or TV service, you must first try to resolve it directly with your service provider. If you have done so and have been unable to reach a satisfactory resolution, CCTS may be able to help you. To learn more about CCTS, you may visit its website at www.ccts-cprst.ca or call toll-free at 1-888-221-1687.
21.0
GENERAL
21.1 These Terms of Service, together with any documentation referenced herein represents the entire agreement between us. These Terms of Service supersede any prior agreements, representations or warranties.
21.2 These Terms of Service are governed according the laws of the Province of Alberta. The parties to these Terms of Service attorn to the jurisdiction of the courts of Alberta.
21.3 This agreement shall enure to the benefit of and shall be binding upon the successors, permitted assigns, heirs, executors, and personal and legal representatives of the parties. Top
21.4 Any obligations relating to fees, charges, penalties, or otherwise owed by you to UTILITYnet pursuant to these Terms of Service will survive any expiration or cancellation of these Terms of Service.
21.5 You may not assign, resell, or transfer the Rental Hardware or the Services to any person without prior written consent of UTILITYnet.
21.6 These Terms of Service will enure to the benefit of, and be binding upon, your respective heirs, executors, administrators, successors and permitted assignees and, for the purpose of UTILITYnet, these Terms of Service shall benefit to any party that controls, is controlled by or under common control with UTILITYnet.
21.7 Upon termination of these Terms of Service, all accrued obligations or liabilities and the provisions which by their nature are intended to continue beyond such termination will remain in effect. Without limiting the generality of the foregoing, the terms of UTILITYnet Acceptable Use Policy applicable to the Services you subscribed to shall survive the expiration or earlier termination of these Terms of Service.
21.8 The failure of either party to insist upon strict interpretation of these Terms of Service or to exercise any options set out in these Terms of Service, shall not act as a waiver of any right or option, but the same shall continue to be in full force and effect. No waiver by either party of any breach shall be effective unless expressed in writing.
21.9 UTILITYnet does not grant you any right to use UTILITYnet’s logos, trademarks or trade names in any manner unless UTILITYnet gives you prior written consent or grants you an appropriate license to use.
21.10 In addition to the terms contained in these Terms of Service, these Terms of Service are also subject to the terms and conditions set out in the UTILITYnet Acceptable Use Policy applicable to the Services, and available at www.UTILITYnet.net or as may be required by statute or regulation.
END OF TERMS
Acceptable Use Policy (AUP)
1.
Illegal Activity
Use of the Services for any activity that violates Local, Provincial, Federal or International law, order or regulation, is a violation of this AUP and your Terms of Service.
Prohibited activities include, but are not limited to:
(a) Posting, storing, transmitting or disseminating unlawful material, including without limitation, child or other pornography, any content, data or other material which is libelous, obscene, hateful, unlawful, threatening, reaction or ethnically offensive, defamatory or which in any way constitute or encourages conduct that would constitute a criminal offense.
(b) Disseminating material which violates copyright or intellectual property rights. The customer assumes all risk regarding whether material is in the public domain;
(c) Pyramid or other illegal soliciting schemes; or
(d) Fraudulent activities; including but not limited to: impersonating any person or entity, or forging anyone’s digital or manual signature.
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2.
Security
You are responsible for any misuse of the Services that originate from your account, even activities committed by any friend, family, co-worker, employee, guest or anyone with access to the account. You must ensure that others not gain unauthorized access to the Services.
The Services may not be used to breach the security of another user, or to attempt access to anyone’s computer, software or data, without the knowledge and consent of that person. The Services may not be used in any attempt to circumvent the user authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for you, logging into or making use of a server or account you are not expressly authorized to access, probing the security of other networks. Use or distribution of tools designed for compromising security, such as password guessing programs, cracking tools, packet sniffers or network probing tools is strictly prohibited.
The Services also may not be used to disrupt or interfere with computer networking or telecommunications services to any user, host or network, including, without limitation, denial of service attacks, flooding of a network, overloading a service, improper seizing and abuse of operator privileges and attempts to crash a host. The transmission or dissemination of any information or software which contains a virus or other harmful feature is also strictly prohibited.
YOU ARE RESPONSIBLE FOR THE SECURITY OF ANY DEVICE YOU CONNECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, DATA STORED ON THAT DEVICE. In particular, UTILITYnet recommends against enabling file or printer sharing of any kind. UTILITYnet recommends that any files or services you make available for remote access be password protected.
3.
Inappropriate Content
UTILITYnet is not responsible for any content you post, store, transmit, disseminate or access through use of the Services. Any content questions or complaints you may have regarding content you access should be addressed to the content provider.
The Customer acknowledges that the Services provide access to content, information and materials that are uncensored. UTILITYnet makes no representation, express or implied, about such content, information or material. The Customer acknowledges that some of the content, information and material that is available through the Services and the Internet may be inaccurate, offensive, harmful or in violation of applicable laws. The Customer further acknowledges and agree that all those who use the account, or the contemplated Services are exclusively responsible for determining the accuracy, suitability, harmfulness or legality of any content, information or material received, transmitted or sent using the Services.
Without limiting the foregoing, UTILITYnet recommends the following for parents or guardians of minors who may be using the Services:
(a) advise each minor to never divulge personal information such as his or her name, phone number or address over the Internet or the Services, and to never organize meetings with other users of the Internet or the Services without the Customer’s strict supervision; and
(b) supervise the use of the Services by minors and require that they inform the Customer as to the materials and information that they access.
You are responsible for information published to the Web or other Internet services, through your account. UTILITYnet reserves the right to refuse to post or to remove any information or materials, in whole or in part, that it, at its sole discretion, deems to be offensive, indecent, or otherwise inappropriate regardless of whether such material or its dissemination is unlawful.
UTILITYnet has no obligation to monitor transmissions made on the Services. However, UTILITYnet has the right to monitor such transmissions and to disclose the same in accordance with UTILITYnet’s Privacy Policy.
By using the Services to publish, transmit or distribute content, a user is warranting that the content complies with these Terms of Service and licenses and authorizes UTILITYnet to reproduce, publish, distribute and display such content worldwide.
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4.
Usage Limits
You must comply with the current bandwidth, data storage and other limitations on the Services, as published by UTILITYnet.
The use of any of the contemplated Services requires a valid user account. Regardless of whether the actual user of the Services is the account-holder, use of any of the contemplated Services shall at all times be governed by these Terms of Service. If the actual user of any of the contemplated Services is someone other than the Customer, the Customer shall be responsible for the actions of the said user.
As the account-holder, the Customer is responsible for the Customer’s account and the maintenance, confidentiality and security of the Customer’s account and all passwords related to the Customer’s account.
The Customer is solely responsible and liable for any and all activities that occur under the Customer’s account, including all activities of any sub-account holders and persons who gain access to the Customer’s account, whether with or without the Customer’s permission, unless the Customer has promptly notified UTILITYnet of the unauthorized use, and taken all reasonable steps in conjunction with UTILITYnet to prevent further unauthorized use.
To that end, the Customer agrees to immediately notify UTILITYnet of:
(a) any unauthorized use of the Customer’s account, any unauthorized Service provided to a third party through the Customer’s account or any misappropriation of the password associated to the Customer’s account, or
(b) any other breach of security with respect to the Customer’s account or any Service provided through it.
The Customer further agrees to provide assistance to UTILITYnet, as requested, to stop or remedy any such breach of security related to the Customer’s account.
You must ensure that your activity while using the Services does not improperly restrict, inhibit or degrade any other customer’s use of the Services, nor represent (in the sole judgment of UTILITYnet) an unusually large burden on the network itself, such as, but not limited to, peer to peer file sharing programs, serving streaming video or audio, mail, http, ftp, irc, dhcp servers, and multi-user interactive forums. The guidelines for Bandwidth Usage/month for each service package are the following:
UTILITYnet limits the number of email messages that you can send through the Services using UTILITYnet’s email servers in a 24 hour day. UTILITYnet defines an email message as one message sent to one recipient. For example: a single message addressed to three recipient email addresses would count as three email messages. Residential Internet Services are limited to 1000 email messages per 24 hour day and no single email message can be addressed to more than 99 recipient email addresses. Business Internet Services are limited to 1000 email messages per 24 hour day and no single email message can be addressed to more than 400 recipient email addresses.
The Services may not be used to send unsolicited bulk or commercial messages. This includes, but is not limited to, bulk mailing of commercial advertising, informational announcements, charity requests, petitions for signatures and political or religious messages. Such messages may be sent only to those who have explicitly requested them.
The Services may not be used to collect responses from unsolicited email sent from accounts on other Internet hosts or email services which violates these Terms of Service or the acceptable use policy of any other Internet service provider. Moreover, unsolicited email may not direct the recipient to any Web site or other resource which uses the Services.
Forging, altering or removing electronic mail headers is prohibited. You may not reference UTILITYnet, any of UTILITYnet’s trademarks or an IP address that belongs to UTILITYnet, in any unsolicited email, even if that email is not sent through UTILITYnet. UTILITYnet owns all IP addresses and email usernames for all Services.
Mail Bombing is prohibited. You may not send numerous copies of the same or substantially similar messages, nor may you send very large messages or files to a recipient with the intent to disrupt a server or account. The propagation of chain letters is prohibited, whether or not the recipient wishes to receive such mailings.
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Service Level Commitment Policy
1.
Support
UTILITYnet will provide Tier 1 support to Customers on a reasonable efforts basis as follows:
Email: [email protected]
Help Desk Telephone:
(403) 450-8591
Hours Monday to Friday 9 am to 5 pm (Mountain)
“Tier 1” means support for any Cable/DSL modem, PC, Ethernet NIC, customer wiring, move order, delete Cable/DSL port, create trouble tickets and support other Cable/DSL related service inquiries.
UTILITYnet will refer Customer to its designated service providers for any support above Tier 1 support.
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2.
Service Start Date
The start date for Services will commence once UTILITYnet successfully completes any required line testing and/or survey. If the line test and/or survey reveal that UTILITYnet cannot provide the Services to the Customer, UTILITYnet will notify the Customer as soon as possible and the contract for the service will be cancelled immediately without liability to either party.
3.
Service Levels
UTILITYnet or its designated service providers will adhere to the following service levels during normal operating periods outside of Maintenance Window (referred to as the “Service Times”). UTILITYnet will address an Outage according to the following service commitments:
(a) A verified outage event (an “Outage”) is defined as no response from the Service, resulting from equipment or software under UTILITYnet’s control, during the Service Times. A service outage caused by a third party or Customer is not considered an eligible service Outage under this Policy. A service outage that occurs during a Maintenance Window is not consider an Outage under this Policy.
(b) A service availability support case, specific to an Outage event, must have been opened by the Customer contacting UTILITYNET’s support line set forth above, for the event to qualify as an Outage under this Policy.
(c) Within 90 minutes of the opening of a service availability support case, UTILITYNET will determine if there is an Outage that results from equipment or software under UTILITYNET’s control. The length of an Outage event is calculated by UTILITYNET as the time that is between the opening of the service availability support case and the time when UTILITYNET makes its initial attempt to notify Customer of the restoration of availability of the Service.
4.
Limits on Support & Service Levels
This Policy applies only to (i) outages directly related to equipment or software provided by UTILITYnet to Customer during the Term of any valid and paid-up Terms of Service, and (ii) response times following the failure of such equipment or software, and is subject to all terms and conditions set out under the Terms of Service.
For internet Services, the internet access port servicing Customer within the UTILITYnet service centre will serve as the demarcation point for coverage.
The scope of this Policy does not include, under any circumstances, any portion of the public internet, including, without limitation, telecommunication services provided by third-parties, or access issues that are not directly related to the Services provided by UTILITYnet, nor does it apply to third-party software or hardware that is not provided by UTILITYnet.
UTILITYnet does not warrant that any software supplied will be free of faults or that its use will be uninterrupted.
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5.
Equipment Failures
If an Outage is due to a material defect in the installation of equipment supplied by UTILITYnet during the Term of any agreement, then UTILITYnet will where necessary by arrangement with the Customer, replace or (at its option) repair the faulty equipment or part free of charge provided that:
(a) the equipment has been properly kept, used and maintained in accordance with the manufacturer’s or UTILITYnet’s instructions, if any, and has not been modified except with UTILITYnet’s written consent; or
(b) the fault is not due to accidental or wilful damage; interference with or maintenance of the equipment by persons other than UTILITYnet; or
(c) the fault is not due to faulty design by the Customer where the equipment has been manufactured to the Customer’s design; or
(d) the equipment has not been tampered with so as to invalidate the guarantee; or
(e) the fault is not attributable to reasonable wear and tear of the equipment.
6.
Maintenance
UTILITYNET’s standard Maintenance Windows are weekends, statutory holidays, and weekday evenings from 1:00 AM to 7:00 AM (Mountain) (“Maintenance Window”). During any scheduled or unscheduled Maintenance Windows, UTILITYnet may take down the service for maintenance in which case, the Maintenance Window will not qualify as an Outage. UTILITYnet reserves the right in its sole discretion to alter these standard Maintenance Windows or to schedule a non-standard Maintenance Window from time to time by giving 48 hours of notice to Customer.
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7.
General Terms
UTILITYnet shall have no liability under this Policy and the Customer shall have no remedy:
(i) where the cause of an Outage has been identified as being a malicious act or otherwise, through the actions of either the Customer or third party that is found to be in breach of UTILITYnet’s Acceptable Usage Policy (AUP), other policies issued by UTILITYnet, or the Terms of Service.
(ii) if a fault was caused by the misuse or interference with the UTILITYnet supplied service which is beyond the control of UTILITYnet;
(iii) If a fault was caused by data transmission originating from Customer equipment.
The Customer agrees to supply UTILITYnet with all necessary data to prove the existence of an Outage and provide reasonable assistance to the UTILITYnet analyst in determining the cause and condition of the Outage throughout the duration of the Outage.
The Customer must be available to provide access to the affected site premises 24/7 in cases where an engineer visit is required to fix the Outage.
UTILITYnet reserves the right to raise an abortive visit charge in the following circumstances:
(a) An engineer attends an incorrect address provided by the Customer.
(b) An engineer arrives to carry out the installation at the address provided by the Customer, but either:
(i) the Customer no longer wants the installation completed; or
(ii) the Customer, having previously chosen to be present at the time of installation, does not attend.
(c) When entry is refused at the site, or no access can be gained at the appointed time agreed between UTILITYnet and the Customer.
(d) If UTILITYnet is delayed in its installation activities because the Customer fails to make equipment that UTILITYnet has dispatched to the Customer for installation purposes available at the site.
(e) If the engineer attends on site and finds that the location and/or environment provided by the Customer for the UTILITYnet equipment and/or Customer equipment is not suitable.
(f) (f) If the Customer provides UTILITYnet with less than 24 hours’ notice of an amendment to, or cancellation of, its order.
PORTABLE WIFI TERMS OF SERVICE
1.0 THE AGREEMENT
1.1 These Terms of Service, combined with UTILITY NETWORK & PARTNERS INC.’s (“UTILITYnet”, “us”, “our” or “we”) Portable WiFi Sign-Up Application Form, our Acceptable Use Policy, and our Privacy Policy, form the Portable WiFi Services Agreement (the “PWS Agreement”). The PWS Agreement is an agreement between you as the customer (“you”, “your”, “Customer” or “Accountholder”) and UTILITYnet. You are entering into the PWS Agreement with UTILITYnet, to purchase certain products and services created and provided by a third party called SIMO HOLDINGS INC. (“SIMO”), such as the Solis Lite (or any newer or replacement version of the Solis Lite that is sold by UTILITYnet from time to time) (the “PW Hotspot”) and your choice of a variety of data service (“Data Service”) plans for use with the PW Hotspot (the “PW Data Plans”). The PW Hotspot and the PW Data Plans shall be referred to together as the “PW Products”. Please note that this PWS Agreement provides you with Data Services only, and not telephone (voice) or text messaging services.
1.2 By using or subscribing to any of the PW Products provided to you by UTILITYnet through one of UTILITYnet’s marketers or resellers (collectively, “Marketer”), you are agreeing to all of the terms and conditions in the PWS Agreement. Please read all of these Terms of Service before using the PW Products. If you do not wish to be bound by the PWS Agreement or any modifications or amendments made to it from time to time, do not subscribe for or use the PW Products. You will still be bound by the PWS Agreement even if you do not read all of the terms. If you continue to use the PW Products after UTILITYnet or one of the Marketers has given you at least one month’s notice of any change to the Terms of this PWS Agreement, you will be bound by the modified terms, even if you choose not to read them. After you have completed the application process, your Marketer will email you an electronic copy of the PWS Agreement. Upon request, we can mail you a paper copy.
UTILITYnet’s Marketers
1.3 UTILITYnet has retained the Marketers to advertise and promote the PW Products. You may have dealings with a Marketer. However, ultimately you are entering into the PWS Agreement with UTILITYnet and UTILITYnet is providing you with the PW Products.
Signing-up
1.4 You will need to complete the Portable WiFi Sign-Up Application Form (“PW Sign-Up Form”) to provide us with the necessary information, confirmations, and authorizations to set up your Portable WiFi account with UTILITYnet (“Account”) and enter into the PWS Agreement. A hyperlink (link) to the PW Sign-Up Form is located on the Marketer’s website.
1.5 On your PW Sign-Up Form you will be the Accountholder. You may also name another person who is at least 18 years old, as an “Authorized User”, who has your permission to request and consent to certain changes to your Account (ex. a spouse or partner).
1.6 As part of the application process:
(a) we will conduct a credit check and you may be required to provide a security deposit (see Part 9);
(b) you will agree to payments by pre-authorized debit (see Section 8.4);
(c) you will be provided with instructions for accessing your online Account, where you may review your Account information, download copies of your past invoices for your Monthly PW Data Plan (“Invoice”), change the password you use to access your Account, etc.;
(d) we will arrange for delivery of your PW Hotspot (see Part 5);
(e) you will choose an PW Data Plan (see Part 6); and
(f) we will determine the date your Data Services will be activated and be available to you for use (“Activation Date”).
The Term
1.7 This PWS Agreement will begin on your Activation Date and will end on the first of the following dates to occur:
(a) the last day of the Billing Cycle (defined in Section 6.1) during which this PWS Agreement is cancelled by the Customer;
(b) the day after the last day the Customer uses the PW Data Plan after giving notice to UTILITYnet of cancellation as per Part 13.1 below; or
(c) the date on which this PWS Agreement is cancelled by UTILITYnet; (the “Term”).
2.0 YOUR AGREEMENT WITH SIMO Top
2.1 Although you are entering into the PWS Agreement with UTILITYnet, if you use the PW Products, you are also agreeing with SIMO to be bound by its Terms of Service (“SIMO’s Terms”). You can find a link to SIMO’s Terms at the bottom of the Solis WiFi’s website homepage. You will be bound by SIMO’s Terms even if you choose not to read them. If you do not wish to be bound by SIMO’s Terms, or any modifications or amendments made to them from time to time, do not subscribe to or use the PW Products.
3.0 CUSTOMER CARE Top
UTILITYnet’s Customer Care
3.1
UTILITYnet’s customer care representatives (“Customer Care”) are available to assist you by telephone, email, or online chat, Monday-Friday between 9a.m. and 5p.m. (MST), excluding statutory holidays (“Business Hours”) at:
Phone: (403) 244-7299, ext.1
Email: [email protected]
Online Chat Chat icon on UTILITYnet’s Portable WiFi webpage or the Marketer’s website
Outside of Business Hours, you may leave a voicemail or send us an email and Customer Care will respond during Business Hours.
3.2 Customer Care can assist you with a variety of matters, such as:
(a) answering questions about:
(i) this PWS Agreement;
(ii) SIMO’s Terms and Conditions;
(iii) your PW Data Plan;
(iv) delivery or use of your PW Hotspot;
(v) your billing; or
(vi) your Account;
(b) making changes to your Account information, banking information, or PW Data Plan;
(c) navigating UTILITYnet’s, the Marketer’s, or SIMO’s website;
(d) adding or removing an Authorized User to or from your Account;
(e) setting up, connecting, and using the PW Hotspot, and troubleshooting basic technical problems;
(f) cancelling this PWS Agreement;
(g) reporting a lost or stolen PW Hotspot to suspend your Data Services; and
(h) checking your High Speed Data (defined in Part 6) balance remaining for the current month of your Monthly PW Data Plan or for your Global One-Month PW Data Plan (Part 6).
3.3 If you believe there has been an error in your billing and you wish to dispute a payment please contact Customer Care so that we may review the matter. If your Invoice is incorrect, we will ensure the error is corrected. If you have overpaid, we will refund you the overpayment amount or credit it to the Invoice for your next Billing Cycle (defined in Section 6.1), at your option. If you have underpaid, the outstanding amount will be added to the Invoice for your next Billing Cycle, but this will not be considered a late payment.
SIMO Support
3.4 If your issue with your PW Hotspot is beyond the scope of the support provided by Customer Care, you will be referred to a SIMO customer service representative (“SIMO Support”). You may call SIMO Support for service (available 24 hours a day), or email to receive a response within 24 hours.
3.5 SIMO Support can assist you with problems that are more technical in nature, such as network issues and persistent connectivity issues, and may apply technologically advanced methods to resolve complex matters.
Resolving Customer Service Problems
3.6 If you have a complaint or feel that you have been treated unfairly, please contact Customer Care so that we may work together to find a resolution. If we cannot resolve the matter, you have the right to seek assistance from the Commissioner for Complaints for Telecom-Television Services (the “CCTS”) which is an independent agency with a mandate to resolve complaints of individual and small business customers regarding their broadcasting and telecommunications services, free of charge. You can learn more about the CCTS by visiting its website at www.ccts-cprst.ca, or calling 1-888-221-1687. For more information about your rights as a wireless customer, you may consult the Canadian Radio-television and Telecommunications Commission’s (CRTC) Wireless Code (the “Wireless Code”).
4.0 AFTER HOURS CUSTOMER CARE Top
4.1
If you are having trouble with your PW Hotspot outside of Business Hours, you may contact SIMO Support (available 24 hours a day) by:
Phone: (855) SKY-ROAM (855-759-7626)
Email: [email protected] (response within 24 hours)
Online Chat Chat icon on Solis WiFi’s website homepage
4.2 If you contact SIMO Support, you will be asked to provide the following information in order to receive assistance:
(a) Accountholder’s name;
(b) the service set identifier (SSID) on the bottom of your PW Hotspot; and
(c) the serial number on the bottom of your PW Hotspot.
4.3 SIMO Support can only assist you with issues relating to the operation and use of your PW Hotspot. It cannot assist you with billing, changes to your Account information, changes to your PW Data Plan, etc. For this type of assistance, please contact Customer Care during Business Hours.
5.0 THE PW HOTSPOT Top
Purchasing a PW Hotspot
5.1 The PW Hotspot is the mobile WiFi hotspot device that you need to purchase to use in conjunction with an PW Data Plan of your choice. A PW Hotspot can accommodate multiple devices (ex. mobile phones, tablets, laptop computers) at once. For clarity, when we refer to a “PW Hotspot”, we mean a Solis Lite, or any newer or replacement version created and provided by SIMO, that is sold by UTILITYnet under this PWS Agreement, or through OurStore (see Part 6). SIMO may have other WiFi hotspot devices, but not all such devices may be sold by UTILITYnet.
5.2 When you have completed the application process for the PW Products to enter into a Monthly PW Data Plan, and have been given an Activation Date, UTILITYnet will send you your PW Hotspot via Canada Post (or any other delivery service contracting with UTILITYnet from time to time, as necessary). Typical delivery time within Alberta is approximately 4-5 days, but UTILITYnet cannot control or guarantee the length of time it will take for delivery to your location. Your cost for shipping will be the flat rate parcel fee charged by Canada Post (or other delivery service) on the date your PW Hotspot is shipped.
5.3 If you do not have an address to which parcels may be delivered or Canada Post will not deliver to your remote location, you may:
(a) provide written authorization for your PW Hotspot to be delivered to an alternate address, and assume all risks and liabilities associated with this authorization;
(b) request delivery to your local Canada Post outlet (Flex Delivery) and pick up your parcel there once it has arrived. To do this, you must provide us with the address of the Canada Post outlet; or
(c) make arrangements with Customer Care to pick up your PW Hotspot at UTILITYnet’s office in Calgary, during Business Hours.
Using Your Own PW Hotspot Device
5.4 If you already own a PW Hotspot, you can use it with an PW Data Plan by contacting Customer Care and providing us with the serial number located on the bottom of your PW Hotspot, and if available, the International Mobile Equipment Identity number (IMEI) located on the box of your PW Hotspot.
5.5 If you already own a different SIMO hotspot device, such as a Solis X, you may use it with an PW Data Plan. However, you may not have access to some features of that different SIMO hotspot device, such as a camera or smart assistant.
5.6 PW Data Plans are not compatible with any other brand of mobile WiFi hotspot device.
6.0 PW DATA PLANS Top
Monthly PW Data Plans
6.1 When we refer to a “Monthly PW Data Plan”, we mean a Data Services plan with a cycle of approximately 30 calendar days (depending on which months are included in that particular cycle), which may or may not start on the first day of a calendar month. This period of about 30 days is what we refer to as a “Billing Cycle”. For example, your Billing Cycle may begin on the 15th day of each month and end on the 14th day of each month.
6.2 By signing up for one of our Monthly PW Data Plans, each calendar month you can use high speed data (“High Speed Data”) up to the maximum number of gigabytes provided in the plan you have chosen (5GB, 10GB, 15GB, or 20GB) (your “High Speed Data Limit”). If you exceed your High Speed Data Limit for the month, you can continue to use your PW Hotspot with an unlimited amount of data at a reduced speed (512 kbps) until your High Speed Data Limit resets at the beginning of the next month. Unused High Speed Data does not carry forward for use in the next month.
6.3 You may change to a different Monthly PW Data Plan by contacting Customer Care. Your new Monthly PW Data Plan will start on the first day of the next month and your new payment amount will be calculated according to the rate for your new Monthly PW Data Plan, plus Goods and Services Tax (“GST”), for your next Billing Cycle. There is no fee to change your Monthly PW Data Plan.
6.4 At any time, you may also temporarily increase your High Speed Data Limit for the remainder of a month, by contacting Customer Care. The increase will be effective until the end of the month and revert back to your regular High Speed Data Limit on the first day of the next month. For any month you change, your payment amount will be calculated at the rate of the Monthly PW Data Plan you have selected for that month (plus GST). You will not be charged a fee to temporarily increase your High Speed Data Limit, only the cost difference between your current and temporary Monthly PW Data Plans. The cost difference for the increase will be included on the Invoice for your next Billing Cycle.
Global One-Month PW Data Plans
6.5 If you do not need an ongoing Monthly PW Data Plan, you may purchase a Global One-Month PW Data Plan that will provide you with 5GB, 10GB, 15GB, or 20GB of High Speed Data, depending on the plan you choose, followed by an unlimited amount of data at a reduced speed, for a period of 30 days.
6.6 While you are using the PW Products, including a Global One-Month PW Data Plan, you are party to and bound by these Terms and Conditions, to the full extent that they are applicable to your use. For clarity, examples of terms that would not apply to the use of a Global One-Month PW Data Plan include, without limitation, those regarding monthly billing, credit checks, PAD payments, security deposits, etc.
6.7 A Global One-Month PW Data Plan may be purchased on UTILITYnet’s OurStore website (“OurStore”) at https://ourstore.ca/home. You may purchase a Global One-Month PW Data Plan in advance and select a specific Activation Date, to ensure that your plan is available when you need it.
6.8 You can also purchase a PW Hotspot from OurStore for use with any Global One-Month PW Data Plan or a Monthly PW Data Plan. You should purchase your PW Hotspot a minimum of 5 Business Days before your plan Activation Date, to ensure it arrives in time.
6.9 Regardless of whether you are buying a new PW Hotspot or using one you already own, you must have your PW Hotspot linked to your Global One-Month PW Data Plan before you can use your PW Products. To link your PW Hotspot to your Global One-Month PW Data Plan, email the serial number located on the bottom of your PW Hotspot to us at [email protected]. Be sure to use the email address that you used when you purchased your Global One-Month PW Data Plan from OurStore, so that we have the necessary information to link your plan and your PW Hotspot. You may send an email at any time, but your PW Products can only be linked during Business Hours.
6.10 Prices for all PW Products purchased from OurStore will be as listed on the OurStore website at the time of purchase, and will be subject to GST and shipping (if applicable). Any purchase from OurStore is made subject to all OurStore policies and Terms and Conditions (located on the OurStore website), as may be amended from time to time.
7.0 USE AND LIMITATIONS Top
7.1 The PW Products can be used anywhere in Alberta where cellular phone services are available. You can find a service coverage map for Alberta on your Marketer’s website. PW Products can also be used when you travel nationally and internationally, in a variety of cities and countries, at no additional cost and with no roaming fees. You may find out where service coverage is available outside of Alberta, on Solis WiFi’s website. A link to the service coverage map on Solis WiFi’s website can be found on your Marketer’s Frequently Asked Questions (“FAQ”) webpage. UTILITYnet does not guarantee that you will be able to use the PW Products at all times in all locations, even if a location is listed as having service coverage. Your access to Data Services may also be limited by SIMO’s Fair Use Policy which states:
“FAIR USE POLICY: Our goal at SIMO is to provide high-speed internet access to our entire community of users, anywhere and anytime! To ensure we optimize our data network to provide the best speeds to the greatest number of customers worldwide, we practice an industry standard Fair Use Policy, consistent with most mobile carrier and broadband company policies for mobile data usage. Because our network is a limited resource, customers who take a disproportionately high amount of data may experience reduced network speeds, based on location and service, so that we protect Fair Usage for all. To ensure you have uninterrupted high speed data, we strongly recommend disabling apps and features that consume data in the background, including cloud syncing, large system updates, auto-backups, auto-app updates, and avoid extended use of video streaming, gaming and other online activities that consume large amounts of data.”
7.2 In the event that Data Services must be temporarily interrupted for system repairs or upgrades by SIMO, we will provide you with 48 hours’ notice, if possible. In cases of emergency or unexpected outages, advance notice is not possible.
7.3 In this PWS Agreement you are agreeing that when you use the PW Products, you will only do so in accordance with UTILITYnet’s Acceptable Use Policy (“AUP”) which is located at the end of these Terms of Service, and forms a part of this PWS Agreement. You also agree not to do anything listed in Section 4 (Use of Equipment) of SIMO’s Terms. Violations of UTILITYnet’s AUP or Section 4 of SIMO’s Terms may result in disconnection (Part 14) or suspension of your Monthly PW Data Plan, or cancellation of your Global One-Month PW Data Plan, and you will not receive a refund for your PW Products.
8.0 BILLING AND PAYMENT Top
8.1 During the Term, you agree to pay UTILITYnet all of the amounts due and payable by you under this PWS Agreement, including GST, in full and on time.
8.2 On your first Invoice, you will be charged a one-time fee to purchase the PW Hotspot, plus GST and shipping costs. You will pay for your Monthly PW Data Plan (plus GST) on an ongoing basis in advance, at the beginning of each Billing Cycle. At the end of each Billing Cycle you will receive a billing notification by email that shows you the payment amount that will be deducted from your bank account for the next Billing Cycle. You may view and download the corresponding Invoice by logging on to your online Account.
8.3 There are no roaming fees charged by UTILITYnet when you use PW Products in another Province or Country. However, if your device (ex. phone, tablet) is not connected to the PW Hotspot, and you have another wireless plan for your device, your other wireless service provider may charge you roaming fees. There are no data overage fees charged by UTILITYnet if you exceed the amount of High Speed Data allowed per month in your Monthly PW Data Plan. There is no cancellation fee if the PWS Agreement is cancelled.
8.4 You will pay UTILITYnet using pre-authorized debit (“PAD”) payments which will be arranged during the application process. By entering into this PWS Agreement you are providing authorization for PAD payments to be withdrawn from your bank account to pay your Invoices during the Term of this PWS Agreement. As such:
(a) YOU HEREBY ACKNOWLEDGE THAT YOU ARE PROVIDING YOUR EXPRESS AUTHORIZATION FOR THE BENEFIT OF UTILITYnet AND YOUR BANK, TO PROCESS INVOICE PAYMENTS AND CREDITS AGAINST YOUR BANK ACCOUNT IN ACCORDANCE WITH THE RULES OF THE CANADIAN PAYMENTS ASSOCIATION;
(b) YOU HEREBY WARRANT AND REPRESENT THAT THE DIGITAL SIGNATURE ON THIS PWS AGREEMENT ALSO ACTS AS A SIGNATURE TO AUTHORIZE YOUR PAD PAYMENTS;
(c) YOU HEREBY AUTHORIZE YOUR BANK TO PROCESS PAD PAYMENTS FOR UTILITYnet AND TO WITHDRAW FROM OR DEPOSIT INTO YOUR ACCOUNT WITH THE BRANCH OF THE FINANCIAL INSTITUTION WHERE YOU MAINTAIN A BANK ACCOUNT;
(d) in order to set up your PAD payments, you will need to provide a void cheque to UTILITYnet that sets out your name, current address, and bank account information. If you do not have cheques, your bank can provide you with a pre-voided cheque to confirm your bank account information. The name on your void cheque must match your name on the PW Sign-Up Form;
(e) you acknowledge and agree that your bank is not required to verify that each PAD payment has been issued in accordance with the particulars of your authorization including, but not limited to, the amount of your Billing Cycle payment;
(f) you acknowledge and agree that your bank is not required to verify that UTILITYnet has fulfilled its obligations under this PWS Agreement prior to issuing any PAD payment;
(g) on your bank statement, your PAD payments will be identified as being made to UTILNET-[XXXX]-SM for any payments for PW Products, your Monthly PW Data Plan, and any other amounts you are required to pay under this PWS Agreement;
(h) UTILITYnet shall not assign this authorization, whether directly or indirectly, except if it sells its business, and only after providing you with 10 days’ written Notice. Unless UTILITYnet sells its business, it will not share any of your banking information;
(i) you agree to provide notice to UTILITYnet in writing of any change to your bank account information at least 10 days’ prior to the next due date of your PAD payment, or as soon as possible if a change is made within 10 days of the next due date;
(j) you may revoke your PAD authorization at any time by providing UTILITYnet with notice at least 10 days prior to the next due date of your PAD payment. If notice is not provided to UTILITYnet in time, one further payment may be withdrawn from your bank account;
(k) revocation of this PAD payment authorization does not terminate any of the other terms of the PWS Agreement. If you have an outstanding amount due and payable to UTILITYnet, you must provide UTILITYnet with another form of payment; and
(l) you have certain recourse rights if any debit does not comply with this Section 8.4. For example, you have the right to receive reimbursement for any PAD payment that is not authorized by or is not consistent with this Section or this PWS Agreement. For more information on your recourse rights you may contact your bank or visit www.cdnpay.ca.
9.0 CREDIT, SECURITY DEPOSITS, AND NONPAYMENT Top
9.1 To ensure that you qualify to enter into this PWS Agreement, UTILITYnet will conduct a credit check as part of the application process, and reserves the right to do so again at any time during the Term. A Customer may be required to provide a security deposit of $100.00 (“Security Deposit”) at the beginning of, or at any time during the Term if the Customer has:
(a) no credit history;
(b) a poor credit rating; or
(c) failed to pay UTILITYnet when payment was due on 3 occasions, at any time during the Term.
9.2 If a Customer is required to provide a Security Deposit:
(a) the Security Deposit will be deducted from the Customer’s bank account as a PAD payment, as authorized in Section 8.4 above:
(i) before the Monthly PW Data Plan is activated and the Monthly PW Data Plan will not be activated until UTILITYnet has received the full Security Deposit; or
(ii) 5 days after UTILITYnet provides notice to a Customer that a Security Deposit is required, if the Term has already started.
(b) it will be held in an interest bearing account and the Customer will receive an interest payment (“Interest Payment”) when the Security Deposit is returned. Interest will be calculated on the day the Interest Payment is made to the Customer, based upon the highest overnight rate of the Bank of Canada in the previous 12-month period, plus 1%;
(c) UTILITYnet may use all or a portion of it to cover the amount owed by the Customer if the Customer defaults on any payment;
(d) and UTILITYnet uses all or a portion of it to cover an amount owed by the Customer, the Customer must promptly replenish the Security Deposit (to the full amount of $100.00) and failure to do this may result in cancellation of the PWS Agreement;
(e) it will be returned to the Customer after the Customer has made payments on time for 12 consecutive Billing Cycles, without default, subject to any outstanding amount owed to UTILITYnet; and
(f) it will be returned to the Customer, subject to any outstanding amount owed to UTILITYnet, if the PWS Agreement is cancelled.
9.3 If there is not enough money in your bank account and you default on a payment, you will be charged a non-sufficient funds (“NSF”) fee of $45.00. If the amount you owe to UTILITYnet remains unpaid for 30 calendar days, UTILITYnet may take steps to enforce its right to payment, including without limitation, suspending or cancelling your Monthly PW Data Plan in accordance with the Wireless Code, and referring your Account to a collections agency. If UTILITYnet must take enforcement steps to collect any amounts you owe under this PWS Agreement, you will be responsible for any costs we incur, including without limitation, legal fees and expenses, collection agency fees or payments, and court costs.
10.0 LOST OR STOLEN PW HOTSPOT Top
10.1 If your PW Hotspot is lost or stolen, contact Customer Care immediately and we will temporarily suspend your Monthly PW Data Plan or Global One-Month PW Data Plan at no charge, so that no one else can use your Data Services. If you locate your PW Hotspot, contact Customer Care to restore your Data Services, at no charge.
10.2 If you remain unable to locate your PW Hotspot, you may contact Customer Care to purchase another one, purchase a new PW Hotspot from OurStore (see Part 6 above), or you may cancel your Monthly PW Data Plan as set out in Part 13 below.
10.3 If your Monthly PW Data Plan or Global One-Month PW Data Plan is suspended as per Section 10.1, and you do not contact Customer Care within 30 days to restore or cancel your Data Services, we will contact you to find out what you plan to do with your Account. If we are unable to reach you, we will begin the Disconnection process set out in Part 14.
11.0 PW HOTSPOT WARRANTY, REPLACEMENT, AND RETURNS Top
Warranty
11.1 Your PW Hotspot is covered by a limited warranty (“Warranty”) that it and its enclosed cable will be free from defects in material and workmanship for a period of 1 year that begins on your Activation Date. This Warranty only applies if:
(a) you are the original purchaser of the PW Hotspot and your purchase was made from UTILITYnet in conjunction with your application for a Monthly PW Data Plan, or from UTILITYnet’s OurStore website; and
(b) the PW Hotspot has been used in accordance with UTILITYnet’s AUP, Section 4 (Use of Equipment) of SIMO’s Terms, in accordance with instructions provided, and with reasonable care.
11.2 The Warranty does not apply:
(a) to defects or damages resulting from misuse, abnormal use, negligent use, improper storage, use in abnormal conditions, exposure to moisture or corrosive environments, extreme temperatures, fire, rough handling, abuse, accident, alteration, incorrect voltage application, food or liquid spillage, acts of God, or normal wear and tear;
(b) if the PW Hotspot has been opened, modified or repaired by you or a third party, or if any part has been replaced with an unauthorized part (including the battery);
(c) if the serial number has been removed, erased, defaced, altered, or is illegible in any way; or
(d) if you did not purchase your PW Hotspot from UTILITYnet.
11.3 This limited Warranty is not transferable to any third party, including but not limited to, any subsequent purchaser or owner of the PW Hotspot.
11.4 If your PW Hotspot qualifies for Warranty coverage (at UTILITYnet’s sole discretion), UTILITYnet will replace the device or issue you a refund, at your option.
Replacement
11.5 If your PW Hotspot is not working, please refer to the troubleshooting section of our FAQ on UTILITYnet’s Portable WiFi webpage or your Marketer’s website. If you are not able to resolve the problem using our troubleshooting strategies, please contact Customer Care during Business Hours for assistance.
11.6 If your PW Hotspot is damaged or defective, you may make arrangements with Customer Care to receive a new one. If:
(a) you received your PW Hotspot in damaged or defective condition or if the damage or defect is covered by Warranty, UTILITYnet will provide you with a new one free of charge. Customer Care will provide you with a prepaid shipping label to return the damaged or defective PW Hotspot to UTILITYnet. Once we receive confirmation that the device is on its way back to us, we will send you a new one. In a case like this, during any period where you are unable to use your Monthly PW Data Plan or Global One-Month PW Data Plan, your Data Services will be suspended until you have a functioning PW Hotspot; or
(b) your PW Hotspot was damaged after you received it, by improper use, or by regular wear and tear and the damage or defect is not covered by Warranty, you may order a new one through Customer Care, at your own expense, or you may purchase one from OurStore (see Part 6 above).
Returns
11.7 If you purchased your PW Hotspot through UTILITYnet and wish to return it for any reason other than damage or defect, you may do so by contacting Customer Care, and will receive a refund if you meet these requirements:
(a) no more than 30 days have passed since you received your PW Hotspot;
(b) you have not used the PW Hotspot;
(c) you return it in its original packaging, with all of its original components (the device, cable, and documents), and in the same condition in which it was received; and
(d) you cover all costs for packaging and return shipping.
11.8 If you have met the requirements listed above, once we have received your returned PW Hotspot, we will issue you a refund, less any amount you owe to UTILITYnet under this PWS Agreement, if applicable.
11.9 If you purchased your PW Hotspot from OurStore, the OurStore return policy and procedures on the OurStore website will apply.
12.0 CHANGES MADE TO THE PWS AGREEMENT BY UTILITYNET Top
12.1 UTILITYnet may change the terms of the PWS Agreement from time to time, including without limitation, by adding or deleting terms and conditions, changing prices, introducing new products or services, or substituting or removing products or services.
12.2 Unless the changes benefit you (by providing you with a lower price or an increase in data at no charge), before making any changes to the PWS Agreement, we will give you notice of at least 30 calendar days. This will give you time to decide if you want to continue with this PWS Agreement with the revised terms, or cancel as set out in Part 13. The notice will explain any changes we plan to make and tell you when the changes will take effect.
12.3 IF YOU DO NOT CANCEL, THEN YOU ARE AGREEING TO CONTINUE AS A PARTY TO THIS PWS AGREEMENT WITH UTILITYnet, WITH THE REVISED TERMS. If you cancel after the changes take effect, this PWS Agreement, as revised, will continue until the end of the Billing Cycle during which you cancel.
13.0 CANCELLATION Top
13.1 You may easily cancel your agreement with UTILITYnet by contacting Customer Care. There is no cancellation fee, however, you must cancel a minimum of 5 days before the first day of your next Billing Cycle to avoid being charged for an additional Billing Cycle. Cancellation may be effective as of the date you cancel with Customer Care, however, you will still be able to use your Monthly PW Data Plan until the last day of your Billing Cycle. If you continue to use your Monthly PW Data Plan, then your PWS Agreement with UTILITYnet will terminate on the day after the last day you use your Monthly PW Data Plan.
13.2 Except in certain, limited circumstances, only an Accountholder may cancel this PWS Agreement and close a Customer’s Account.
14.0 DISCONNECTION Top
14.1 If you cancel your PWS Agreement a minimum of 5 days before the first day of your next Billing Cycle, your Monthly PW Data Plan will be disconnected on the last day of that Billing Cycle. If you cancel within the last 5 days of your Billing Cycle, you will be billed for one more cycle, and your PW Data Plan will be disconnected on the last day of this additional Billing Cycle.
14.2 UTILITYnet may disconnect your PW Data Plan if:
(a) you fail to pay your Invoice when it is due, and
(i) your outstanding payment exceeds $50.00 and has been overdue for more than one month; or
(ii) your outstanding payment is less than $50.00 and has been overdue for more than 2 months;
(b) you fail to provide or maintain a Security Deposit;
(c) you fail to comply with UTILITYnet’s AUP or do anything prohibited by Section 4 (Use of Equipment) of SIMO’s Terms; or
(d) you otherwise breach the terms of this PWS Agreement.
14.3 If you have not cancelled your PWS Agreement and UTILITYnet intends to disconnect your Data Services (“Disconnection”) it will do so according to the requirements of the Wireless Code and will:
(a) provide you with a first notice, a minimum of 14 days before the Disconnection, which will tell you the reason for the Disconnection, any amount owing to UTILITYnet, the date of the Disconnection, the amount you will need to pay to reconnect your Data Services, and will provide contact information for Customer Care to discuss the matter;
(b) provide you with a second notice at least 24 hours before the Disconnection, unless:
(i) we have unsuccessfully, repeatedly tried to contact you;
(ii) the Disconnection is required to protect UTILITYnet’s or SIMO’s network from harm; or
(iii) we have reasonable suspicion that fraud is occurring or likely to occur; and
(c) not complete the Disconnection if you pay the entire amount that you owe to UTILITYnet prior to the Disconnection date, including without limitation, any amount owed for any PW Data Plan, NSF fees, costs for collection or legal fees, a Security Deposit, GST, or any other amount due and payable under this PWS Agreement.
15.0 UTILITYNET’S LIABILITY Top
15.1 UTILITYnet shall not be liable for:
(a) any interruption or unavailability of Data Services or service coverage in Alberta or any other location;
(b) any act or omission of any third party, including without limitation, any connecting carrier or underlying carrier or other provider of connections, facilities or services required to provide you with Data Services, including SIMO ;
(c) your conduct, acts, or omissions;
(d) any event beyond the reasonable control of UTILITYnet including acts of God, inclement weather (including lightning), power failures, labour disputes, riots or civil disputes, war or armed conflict, any law, governmental order, decision or regulation, or order of any court of competent jurisdiction;
(e) UTILITYnet’s failure, for any reason, to activate your PW Data Plan on the Activation date you requested or provided to you by UTILITYnet; and
(f) any damages you incur as a result of the operation or failure of any device, accessory, or equipment owned or provided by the Customer, or other hardware, facilities, or wiring that you use with the PW Products.
16.0 LIMITATION OF LIABILITY Top
16.1 IN THE EVENT OF ANY BREACH BY UTILITYnet, INCLUDING ANY BREACH OF A FUNDAMENTAL TERM OR ANY NEGLIGENCE BY UTILITYnet, YOUR EXCLUSIVE REMEDY SHALL BE TO RECEIVE FROM UTILITYnet PAYMENT FOR ACTUAL AND DIRECT DAMAGES TO A MAXIMUM AMOUNT EQUAL TO THE FEES PAID BY YOU TO UTILITYnet IN THE PAST THREE MONTHS FOR THE PW PRODUCTS.
16.2 UNDER NO CIRCUMSTANCES SHALL UTILITYnet BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS AND LOSS OF BUSINESS OPPORTUNITIES, THAT RESULT IN ANY WAY FROM THIS PWS AGREEMENT, INCLUDING YOUR USE OF THE PW PRODUCTS, OR YOUR RELIANCE ON OR USE OF ANY INFORMATION, SERVICE, MERCHANDISE, OR MATERIAL VIEWED OR PROVIDED ON OR THROUGH USE OF THE PW PRODUCTS, OR THAT RESULT FROM NETWORK OUTAGES, POWER OUTAGES, MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, FAILURES OR DELAYS IN RECEPTION OR TRANSMISSION, OR FAILURE OF PERFORMANCE OF THE PW PRODUCTS.
16.3 UTILITYnet SHALL NOT BE LIABLE FOR, AND YOU SHALL INDEMNIFY AND SAVE UTILITYnet HARMLESS FROM AND AGAINST ALL SUITS, CLAIMS, OR JUDGMENTS HOWSOEVER ARISING OUT OF ANY OF THE FOLLOWING:
(a) CLAIMS FOR DEFAMATION, INFRINGEMENT OF COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS, OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY OR BASED ON ANY OTHER LEGAL THEORY HOWSOEVER ARISING FROM THE MATERIAL, DATA, OR OTHER CONTENT ACCESSED OR TRANSMITTED USING THE PW PRODUCTS;
(b) ANY LOSSES, DAMAGES, EXPENSES, OR COSTS (INCLUDING LEGAL FEES) ARISING OUT OF OR IN CONNECTION WITH ANY CLAIM OR OTHER PROCEEDING, BASED ON A CONTENTION THAT THE USE OF THE PW PRODUCTS BY YOU OR A THIRD PARTY INFRINGES ANY INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY;
(c) YOUR BREACH OF THE AUP, SIMO’S TERMS, OR OTHER APPLICABLE POLICIES; OR
(d) CLAIMS BY THOSE TO WHOM YOU PROVIDE ACCESS TO THE PW PRODUCTS.
16.4 FOR THE PURPOSES OF THIS PART 16, ANY REFERENCE TO “UTILITYnet” SHALL INCLUDE UTILITYnet AND ITS MARKETERS, PARTNERS, RESELLERS, PROVIDERS OR ASSOCIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS, AGENTS, SUCCESSORS, AND ASSIGNS.
17.0 VOIP SERVICE-SPECIFIC PROVISIONS Top
17.1 IF THE PW PRODUCTS WILL BE USED FOR VOICE-OVER-INTERNET-PROTOCOL (“VoIP”) SERVICE (“VoIP Service”), THIS SECTION APPLIES, AND CONTAINS IMPORTANT PROVISIONS, INCLUDING THOSE REGARDING 911 ACCESS. PLEASE READ CAREFULLY.
17.2 VoIP Service allows a Customer to make or receive telephone calls over the Internet to or from the public switched telephone network (“VoIP Calls”). While appearing similar to traditional telephone calling services, the nature of VoIP Calls creates unique limitations and circumstances and the Customer acknowledges that differences exist between traditional telephone service and VoIP Service, including the lack of traditional 911 services and privacy issues.
17.3 VoIP Calls require high speed Internet bandwidth, which will count towards the Customer’s High Speed Data usage.
VoIP 911 Services
17.4 Because of the unique nature of VoIP Calls, emergency calls to 911 through VoIP Service (a “VoIP 911 Call”) will be handled differently from traditional phone service. The following provisions describe the differences and limitations of VoIP 911 Calls:
(a) Placing a VoIP 911 Call. When a VoIP 911 Call is made, the VoIP Service will attempt to automatically route the VoIP 911 Call through a third-party service provider to the Public Safety Answering Point (“PSAP”) corresponding to the address on record for the Customer’s Account. However, due to the limitations of the VoIP system, the VoIP 911 Call may be routed to a different location from that which would be used for traditional 911 dialing. For example, the Customer’s call may be forwarded to a third-party, specialized call centre that handles emergency calls. This call centre is different from the PSAP that would answer a traditional 911 call, and the Customer may be required to provide his or her name, address, and telephone number to the call centre.
(b) How the Customer’s Information is Provided. The VoIP Service will attempt to automatically provide the PSAP dispatcher or emergency service operator (a “Dispatcher”) with the name, address and telephone number associated with the Customer’s Account. However, for technical reasons, the Dispatcher may not be able to capture or retain the Customer’s name, phone number, or physical location. Therefore, when making a VoIP 911 Call, you must immediately inform the Dispatcher of your location (or the location of the emergency, if different). If the caller is unable to speak, the Dispatcher may not be able to locate the emergency.
(c) Correctness of Information. The Customer is responsible for providing, maintaining and updating correct contact information (including name, residential address, and telephone number) associated with the Customer’s Account. If the Customer does not correctly maintain or update this information, VoIP 911 Calls may be misdirected to an incorrect Dispatcher.
(d) Disconnections. The caller must not disconnect the VoIP 911 Call until told to do so by the Dispatcher, as the Dispatcher may not have the Customer’s telephone number or other contact information. If the call is inadvertently disconnected, the caller must call back immediately.
(e) Connection Time. For technical reasons, including network congestion, it is possible that a VoIP 911 Call will produce a busy signal or will take longer to connect compared to traditional 911 telephone calls.
(f) 911 Calls May Not Function. For technical reasons, the functionality of a VoIP 911 Call may cease or be curtailed in various circumstances, including:
(i) Failure of Service or Service Access Device – if the device you are using to access your Data Services, such a mobile phone (“Service Access Device”) fails, or is not configured correctly, or if the Customer’s VoIP Service is not functioning for any reason, including in the event of a power outage, VoIP Service outage, suspension or Disconnection of the Customer’s Data Services for any reason, network or Internet congestion or outage, your VoIP 911 Call may fail. In the event of a power, network, or Internet outage, the Customer may need to reset or reconfigure the Service Access Device before being able to use the VoIP Service again, including for a VoIP 911 Call;
(ii) Changing Location of Service Access Device – if the Customer moves the Customer’s Service Access Device to a location other than that described in the Customer’s Account information or otherwise on record with UTILITYnet; or
(iii) Use outside of Canada or the United States – if the Customer moves the Customer’s System Access Device to a location other than one located in the USA or Canada (excluding Alaska, Hawaii, the Northwest Territories, Yukon, and Nunavut).
17.5 IF THE CUSTOMER IS NOT COMFORTABLE WITH THE LIMITATIONS OF VoIP 911 CALLS, THE CUSTOMER SHOULD USE ALTERNATE MEANS FOR ACCESSING TRADITIONAL 911 SERVICES AND NOT RELY ON THE PW PRODUCTS FOR EMERGENCY CALLS.
17.6 The Customer is responsible for notifying and agrees to notify, any user of the Customer’s VoIP Service, of the nature and limitations of VoIP 911 Calls on the VoIP Service as described herein.
17.7 The Customer acknowledges that UTILITYnet will not be liable for any service outage or inability to place VoIP 911 Calls using the VoIP Service or to access emergency service personnel due to the limitations of VoIP 911 Calls described herein.
Other Specific Types of VoIP Calls
17.8 VoIP Calls to certain special service phone numbers, including 900- and 976- numbers, may be limited and UTILITYnet reserves the right to limit the Customer’s ability to call any such number, at its sole discretion.
17.9 The Customer is prohibited from using any VoIP Service for:
(a) automatic-dialing announcing devices and unsolicited voice and facsimile calls made for the purpose of solicitation; and
(b) any application with continuous or excessive calling patterns for telemarketing (including charitable and political solicitation and polling), fax broadcasting, or fax blasting.
VoIP Privacy
17.10 The Customer acknowledges that VoIP Calls and VoIP Service utilize, in whole or in part, the public Internet and third-party networks to transmit voice and other communications, which transmissions may be intercepted by other parties.
18.0 DISCLAIMERS Top
18.1 BY ENTERING INTO THIS PWS AGREEMENT AND USING THE PW PRODUCTS, YOU CONFIRM THAT YOU, AS THE CUSTOMER (ACCOUNTHOLDER) ARE AT LEAST 18 YEARS OLD, AND THAT YOU GIVE EXPRESS CONSENT FOR USE OF THE PW PRODUCTS BY ANY MINORS WITH ACCESS TO YOUR PW HOTSPOT AND PW DATA PLAN. UTILITYnet does not provide any warranties of any kind with respect to content from the Internet or any other source that you or anyone you permit to use the PW Products may access through them. You acknowledge that there may be programming content or other content accessed through the PW Products that you may find offensive or inappropriate, and you agree that your viewing or use of such content is at your own risk. Some programming or content may not be suitable for minors and you agree to supervise all minors whom you permit to view any programming or access any content from the Internet or any other source, through the PW Products.
18.2 UTILITYnet makes no warranties of any kind regarding:
(a) compatibility or any other warranties of any kind with respect to any mobile telephone, laptop computer, tablet, or other device used in conjunction with the PW Products;
(b) uninterrupted use of PW Products, availability of Data Services, or service coverage in any location, and will not apply any rebate for Data Service interruptions or unavailability;
(c) the ability of your PW Hotspot to update firmware as it may be released by SIMO from time to time;
(d) your ability to contact Customer Care during Business Hours from any location; or
(e) the battery life of the PW Hotspot, the security of the connection, or security of transactions completed, when using the PW Products.
18.3 UTILITYnet DOES NOT WARRANT THAT ANY DATA OR COMMUNICATION SENT BY OR TO YOU WILL BE TRANSMITTED IN AN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME, OR THAT ANY CONTENT OR OTHER MATERIAL ACCESSIBLE USING THE PW PRODUCTS IS FREE OF DEFECT, ERROR, OR VIRUSES. UTILITYnet DOES NOT WARRANT THE CONTENT, INCLUDING WITHOUT LIMITATION, CONTENT OF ANY PROGRAMMING OR ADVERTISING THAT IS ACCESSIBLE USING THE PW PRODUCTS. ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABLE QUALITY WITH REGARD TO ANY MERCHANDISE, INFORMATION, PROGRAMMING, ADVERTISING, CONTENT, OR SERVICE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXCLUDED.
19.0 CONFIDENTIALITY AND PRIVACY Top
19.1 By entering into this PWS Agreement, you also agree to UTILITYnet’s Privacy Policy which can be reviewed on UTILITYnet’s Portable WiFi webpage or your Marketer’s website.
19.2 Subject at all times to its Privacy Policy, UTILITYnet may disclose any information as is necessary to:
(a) satisfy any legal or regulatory requirement or governmental request;
(b) obtain, deliver, operate, service, and market the PW Products; or
(c) protect UTILITYnet, its Marketers, partners, affiliates, or its customers.
20.0 GENERAL Top
20.1 This PWS Agreement is governed according the laws of the Province of Alberta. The parties to this PWS Agreement attorn to the jurisdiction of the courts of Alberta.
20.2 This PWS Agreement shall enure to the benefit of and shall be binding upon the successors, permitted assigns, heirs, executors, and personal and legal representatives of the parties. For the purpose of UTILITYnet, the PWS Agreement shall benefit any party that controls, is controlled by, or is under common control with UTILITYnet.
20.3 You may not assign, resell, or transfer an PW Data Plan or the PWS Agreement to any person or entity without prior written consent from UTILITYnet, which UTILITYnet may withhold at its discretion.
20.4 UTILITYnet does not grant you any right to use UTILITYnet’s or SIMO’s logos, trademarks or trade names in any manner unless UTILITYnet or SIMO (as applicable) give you prior written consent or grant you an appropriate license to use.
20.5 The failure of either party to insist upon strict interpretation of the terms of the PWS Agreement or to exercise any options set out in this PWS Agreement, shall not act as a waiver of any right or option, but the same shall continue to be in full force and effect. No waiver by either party of any breach shall be effective unless expressed in writing.
20.6 Should any provision of this PWS Agreement be illegal or unenforceable for any reason whatsoever, it shall be considered separate and severable from the remaining provisions, which shall remain in force and be binding as though such inoperative provision had not been included.
20.7 Upon termination of this PWS Agreement, all accrued obligations or liabilities and provisions which by their nature are intended to continue beyond such termination, will remain in effect. Without limiting the generality of the foregoing, the terms of UTILITYnet’s AUP applicable to the PW Products shall survive the expiration or earlier termination of the PWS Agreement, and any obligations relating to fees, charges, penalties, or amounts otherwise owed by you to UTILITYnet pursuant to this PWS Agreement will survive any expiration or cancellation of the PWS Agreement.
20.8 These Terms of Service, combined with our PW Sign-Up Form, our AUP, our Privacy Policy, and any other documentation referenced herein, collectively form the PWS Agreement, and represent the entire agreement between you and UTILITYnet. The PWS Agreement supersedes any prior agreements, representations, or warranties, made by or among UTILITYnet, a Marketer, and you.
END OF TERMS
ACCEPTABLE USE POLICY FOR PORTABLE WIFI PRODUCTS (“AUP”)
1 Illegal Activity Top
1.1 Use of the Portable WiFi Products (“PW Products”) for any activity that violates any local, Provincial, Federal, or international law, order, or regulation, is a violation of this AUP and your PWS Agreement.
1.2 Prohibited activities include, but are not limited to:
(a) posting, storing, transmitting, or disseminating unlawful material, including without limitation, child or other pornography, or any content, data, or other material which is libelous, obscene, hateful, unlawful, threatening, offensive, defamatory, discriminatory (based upon gender, age, sexual orientation, religion, ethnicity, race, national origin, disability, or any other characteristic), or which in any way constitutes or encourages conduct that would constitute, a criminal offense;
(b) disseminating material which violates copyright or intellectual property rights. The Customer assumes all risk regarding whether material is in the public domain;
(c) pyramid or other illegal soliciting schemes; or
(d) fraudulent activities, including but not limited to, impersonating any person or entity, using another person’s personal information as your own, or forging anyone’s digital or manual signature.
2 Security Top
2.1 You are responsible for any misuse of the PW Products associated with your Account, even activities committed by any friend, family member, co-worker, employee, guest, or anyone else with access to your Account or the PW Products. You must ensure that others not gain unauthorized access to your Account or the PW Products.
2.2 The PW Products may not be used to breach the security of another user, or to attempt access to anyone’s computer, software, or data, without the knowledge and consent of that person. The PW Products may not be used in any attempt to circumvent the user authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for you, logging into or making use of a server or account you are not expressly authorized to access, and probing the security of other networks. Use or distribution of tools designed for compromising security, such as password guessing programs, cracking tools, packet sniffers, or network probing tools is strictly prohibited.
2.3 You may not interfere with or circumvent any security features of the PW Products, of UTILITYnet, or of a Marketer, or attempt to do so.
2.4 The PW Products may not be used to disrupt or interfere with computer networking or telecommunications services to any user, host, or network, including without limitation, denial of service attacks, flooding of a network, overloading a service, improper seizing and abuse of operator privileges, and attempts to crash a host. The transmission or dissemination of any information or software which contains a virus, worm, or other harmful feature is also strictly prohibited.
2.5 YOU ARE RESPONSIBLE FOR THE SECURITY OF ANY DEVICE YOU CONNECT TO THE PW PRODUCTS, INCLUDING WITHOUT LIMITATION, DATA STORED ON THAT DEVICE. In particular, UTILITYnet recommends that you disable file sharing of any kind and that any files or services you make available for remote access be password protected.
3 Inappropriate Content Top
3.1 UTILITYnet is not responsible for any content you post, store, transmit, disseminate, or access through use of the PW Products. Any content questions or complaints you may have regarding content you access should be addressed to the content provider.
3.2 The Customer acknowledges that the PW Products provide access to content, information, and materials that are uncensored. UTILITYnet makes no representation, express or implied, about such content, information, or material. The Customer acknowledges that some of the content, information, and material that is available using the PW Products and the Internet may be inaccurate, offensive, harmful or in violation of applicable laws. T he Customer further acknowledges and agrees that all those who use the Account, or the PW Products are exclusively responsible for determining the accuracy, suitability, harmfulness, or legality of any content, information, or material received, transmitted, or sent using the PW Products.
3.3 Without limiting the foregoing, UTILITYnet recommends the following for parents or guardians of minors who may be using the PW Products and for whom they are providing consent by allowing such use:
(a) advise each minor to never divulge personal information such as his or her name, phone number, or address over the Internet or using the PW Products, and to never organize meetings with other users of the Internet without the Customer’s strict supervision;
(b) engage parental controls available on any device being used with the PW Products, by a minor; and
(c) supervise the use of the PW Products by minors and require that they inform the Customer as to the materials and information that they access.
3.4 You are responsible for information published to the Web or other Internet services, using your Account and PW Products. UTILITYnet reserves the right to disconnect any PW Data Plan or cancel any Global One-Month PW Data Plan if it is discovered that such plan is being used for posting or otherwise disseminating any information or material that it, in its sole discretion, deems to be, in whole or in part, offensive, indecent, or otherwise inappropriate regardless of whether such material or its dissemination is unlawful.
3.5 UTILITYnet has no obligation to monitor transmissions made through the PW Products. However, UTILITYnet has the right to monitor such transmissions and to disclose the same in accordance with UTILITYnet’s Privacy Policy, and as may be required by law.
3.6 By using the PW Products to publish, transmit, or distribute content, a user is warranting that the content complies with the PWS Agreement, and licenses and authorizes UTILITYnet to reproduce, publish, distribute, and display such content worldwide as may be necessary for the Customer to use the PW Products.
4 Usage Limitations and Restrictions Top
4.1 The use of any of the PW Products requires a valid user Account. Regardless of whether the actual user of the PW Products is the Accountholder, use of any of the PW Products shall at all times be governed by the PWS Agreement. The Accountholder shall be responsible for the actions of any user of the PW Products associated with his or her Account.
4.2 As the Accountholder, the Customer is responsible for the security of all passwords related to it, and the maintenance, confidentiality, and security of the Account.
4.3 The Customer is solely responsible and liable for any and all activities that occur under the Customer’s Account, including all activities of any Authorized User and persons who gain access to the Customer’s Account, whether with or without the Customer’s permission, unless the Customer has promptly notified UTILITYnet of the unauthorized use, and taken all reasonable steps in conjunction with UTILITYnet, to prevent further unauthorized use.
4.4 To that end, the Customer agrees to immediately notify UTILITYnet of:
(a) any unauthorized use of the Customer’s Account, any unauthorized Data Services provided to a third party through the Customer’s Account, or any misappropriation of the password associated with the Customer’s Account; or
(b) any other breach of security with respect to the Customer’s Account or any PW Products associated with it.
4.5 The Customer further agrees to provide assistance to UTILITYnet, as may be requested, to stop or remedy any such breach of security related to the Customer’s Account.
4.6 You must ensure that your activity while using the PW Products does not improperly restrict, inhibit, or degrade any other customer’s use of the PW Products, nor represent (in the sole judgment of UTILITYnet) an unusually large burden on the network itself, such as, but not limited to, peer to peer file sharing programs, serving streaming video or audio, mail, http, ftp, irc, dhcp servers, and multi-user interactive forums.
4.7 You may not charge a fee to any third party to use the Data Services through the PW Products, with a view towards making a profit.
4.8 The PW Products may not be used to send unsolicited bulk or commercial messages. This includes, but is not limited to, bulk mailing of commercial advertising, informational announcements, charity requests, petitions for signatures, and political or religious messages. PW Products are not intended to be used for distributing bulk or commercial messages.
4.9 The PW Products may not be used to collect responses from unsolicited email sent from accounts on other Internet hosts or email services. Doing so violates the PWS Agreement and may also violate the acceptable use policies of other Internet service providers. Moreover, unsolicited email may not direct the recipient to any website or other resource which uses the PW Products.
4.10 Mail bombing is prohibited. You may not send numerous copies of the same or a substantially similar message, nor may you send very large messages or files to a recipient, with the intent to disrupt a server or account. The propagation of chain letters is prohibited, whether or not the recipient wishes to receive such mailings.
4.11 You may not:
(a) make repairs or modifications to, or otherwise alter the PW Hotspot (including using an unauthorized battery);
(b) remove or alter any certification markers affixed to the PW Hotspot; or
(c) attempt to decompile, disassemble, reverse engineer, and/or replicate the PW Hotspot.
5 Consequences Top
5.1 Doing any of the foregoing may result in voiding your Warranty, cancellation of the PWS Agreement, and the Disconnection of your Data Services, as well as any legal action that UTILITYnet or SIMO may choose to initiate.
END OF POLICY