1.
Service Description:
1.1.
The Cybervale (CL)
Asymmetric Digital Subscriber Line (ADSL) High Speed Internet Access Service
("Service") is an Internet access service that provides dedicated
connections from a Customer's premises to the Internet via Digital Subscriber
Line local facilities and CL's Business partner’s Internet network.
1.2.
At the originating
Customer’s premises, the Customer's equipment places data into Internet
Protocol ("IP") packets and gives each packet a terminating address,
registered IP packets are routed over the Internet network to the terminating
Internet location or peering point with another Internet service provider.
1.3.
This service is
available to persons with a Cable & Wireless post paid fixed line. It is
the sole responsibility of the customer to ensure that the phone lines are in
working condition. CL makes no commitment and is in no way accountable for
service disruption as result of disconnected phone lines.
1.4.
Minimum Service
period” 12 months for residential customer and 24 months for business
customers.
1.5.
The Service may not
be compatible with devices such as home security systems, medical alerts, door
bell answering service, or other similar automatic reporting systems using
telephone lines.
1.6.
Payment becomes due
the 1st of each month.
1.7.
Failure to make
payment within five (5) days will result in suspension of service with full
months charges applicable for the discounted service.
2.
Equipment
2.1.
The Customer
requires a modem and splitter/filter kit in order to access the service.
2.2.
The customer may
source the modem and splitter/filter on his own or acquire it from CL in
accordance with CL’s terms and conditions.
2.3.
The Customer is
responsible for the configuration and installation of the said modem and splitter
unless the said equipment is purchased from CL.
2.4.
Where the Customer
sources the modem and splitter/filter kit the Customer should ensure that they
are configured and installed at the time of Service installation, as billing
for the Service commences immediately on installation.
2.5.
If equipment is purchased from CL, title to
the equipment will pass to Customer upon CL's receipt in full of payment
therefore. Risk of loss for or damage to each item of equipment will pass to
Customer upon its delivery to Customer. Modems purchased from CL are subject to
a ninety (90) day warranty from the date of installation limited to defects
other than those caused by the customer’s use or misuse of the product or acts
of God or electrical surges.
2.6.
After the expiration
of the warranty or if the damage to the item is not covered by the warranty In
the event that CL determines that an item of equipment requires replacement,
Customer will be responsible for replacing it with a functionally equivalent
new or used item of equipment.
2.7.
The customer shall
be responsible for obtaining and installing all other software or equipment
that which are or may become necessary to access the Service and to operate its
computer.
2.8.
Customer will, at
his/her own expense, be responsible for all site preparation activities
necessary for installation of the Service.
3.
Charges:
3.1.
Customer will pay
all applicable charges for the Service and will also pay any charges related to
the equipment if equipment has been purchased from CL.
3.2.
Charges will be
prepaid on a monthly basis. The charges do not include applicable taxes and may
be revised by us from time to time upon thirty (30) days advance notice to
Customer.
3.3.
The monthly charges
will be billed from the date on which the Service is first provisioned for
Customer's use.
3.4.
The Customer shall
be liable to for any and all costs and/or expenses incurred directly or
indirectly, including reasonable attorney's fees and expenses, in the
collection or attempted collection of any amounts due from the Customer.
4.
4.1 Terms and
Termination:
The term of the Service ("Term") will start
as of the billing effective date ("Term Start Date") and will
continue on a month-to-month basis.
5.
Cancellation/termination
charges;
5.1.
If you purchase our
service at our discounted rates, you shall be required to retain active service
with us for a minimum service period. And if you fail to retain active service
for the minimum service period, You will be liable for the payment of the
difference between the discounted rate and the actual cost of the service in
addition to 50% of the outstanding rental for the remainder of the minimum
service period, plus the full sum of any other fee or cost that was waived.
5.2.
In addition to any
other remedies available, CL may immediately (without notice and without liability
to the Customer) discontinue the provision of Service if any of the following
occurs: (a) CL deems in its absolute discretion that it is necessary to
discontinue the Service in order to protect against its fraudulent or illegal
use or to otherwise protect CL its equipment, network or facilities; (b) CL
receives complaints or claims from third parties regarding the Customer's use
of the Service; or (c) the Customer fails to comply with its obligations
pursuant to this Agreement or (d) Customer fails to pay the applicable charges
for the Service or any other service supplied to the Customer by CL on or
before the Final Date.
5.3.
CL will endeavour to
give Customer notice regarding the reason(s) for suspension or termination as
soon as reasonably practicable after such suspension or termination.
6.
General
6.1.
CL is not
responsible for the installation, maintenance, compatibility of performance of
any third party equipment or software not provided by CL, and if such third
party equipment or software impairs the Service, (i) Customer remains liable
for payment, and (ii) if it is likely to cause hazard or service obstruction,
Customer will eliminate such likelihood at CL 's request.
6.2.
It is acknowledged
and agreed by the parties hereto that the bandwidth for each product set out in
this Agreement is the maximum bandwidth which can be achieved on the circuit
and cannot be guaranteed by CL. CL will however, use all reasonable efforts to
achieve the highest possible level of Service at all times.
6.3.
Customer will give
CL and its suppliers, servants and/or agents reasonable access to its premise
at all reasonable times.
6.4.
Customer will not
misuse the Service (Permit any use of the Service which is unlawful, harassing,
or which infringes upon another's intellectual property rights, or which
otherwise constitutes network abuse), and the Customer will be responsible for
any such misuse.
6.5.
Although CL may
configure the Service so as to provide some security features, the Customer
shall be solely responsible for providing for any security or privacy that it
may desire for its computer network and any data stored on that network or
accessed through the Service. The Customer acknowledges and assumes all
liabilities relating to, and risks associated with, unauthorized access by a
third party via the Service to such computer network and data.
6.6.
CL may communicate
security issues to Customer from time to time when misuse is observed or
reported by others.
6.7.
CL has no obligation
to monitor the Service; however, CL may monitor the Service and disclose
information gained from such monitoring in order to (i) satisfy any law,
regulation or other governmental request, (ii) operate the Service and
administer CL's networks, or (iii) protect itself or its subscribers.
6.8.
CL reserves the
right to refuse to post or to remove any information or materials, in whole or
in part, that in its sole discretion are unacceptable, undesirable, or in
violation of clause 6.4 of this Agreement.
6.9.
The Customer shall not use the Service for any purpose which contravenes
the Telecommunications Act, 2000.
7.
Warranties and Liabilities -
7.1.
Customer understands that, except for certain services specifically
identified as CL services, CL does not operate or control the Internet.
7.2.
CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR ITS USE OF THE INTERNET.
7.3.
CL MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATION OR
ENDORSE-MENTS REGARDING ANY MERCHANDISE, INFORMATION, PRODUCTS OR SERVICES
PROVIDED THROUGH THE INTERNET.
7.4.
CL does not in any manner warrant any item of equipment provided by CL;
CL will, however, transfer to Customer (to the extent permitted by an equipment
supplier) any warranty provided by such supplier, with CL retaining the
authority to exercise Customer's rights hereunder until the discontinuation of
service.
7.5.
THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS
AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT OR IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.6.
NO ADVICE OR INFORMATION GIVEN BY CL 'S EMPLOYEES, AGENTS OR CONTRACTORS
(INCLUDING WITH RESPECT TO ANY EQUIPMENT THAT MAY BE RECOMMENDED FOR PURCHASE
AND/OR USE WITH THE SERVICE) SHALL CREATE A WARRANTY.
7.7.
CL shall not be liable for, and is excused from, any failure or delay in
service due to acts of God, acts of civil or military authority, riots, civil
unrest, acts of the public enemy, war or threats of war, accidents, fires,
explosions, earthquakes, floods, unusually severe weather, epidemics, or due to
any other cause beyond its reasonable control.
7.8.
UNDER NO CIRCUMSTANCES SHALL CL OR ITS AFFILIATES BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT
FROM CUSTOMER OR CUSTOMER'S USERS' USE OF OR INABILITY TO ACCESS ANY PART OF
THE INTERNET OR RELIANCE ON OR USE OF INFORMATION, SERVICES OR MERCHANDISE
PROVIDED ON OR THROUGH THE SERVICE, OR THAT RESULT FROM MISTAKES, OMISSIONS,
INTERRUPTIONS, LOSS, THEFT, OR DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN
OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE.
7.9.
Notwithstanding anything to the contrary stated herein, CL's maximum
liability hereunder will not exceed an amount equal to the total of the monthly
recurring charges paid by Customer hereunder for the twelve (12) months
preceding the month during which such liability arises.
7.10. Customer shall defend,
protect and hold harmless CL and its affiliates from and against any
liabilities, actions, losses, costs, or claims incurred by them as a result of
(i) any use or misuse of the Service (whether by Customer or any other party),
or (ii) any claims arising out of the use of any third party equipment or
software with the Service based on the alleged infringement or misappropriation
of any intellectual or other property rights of any third party.
7.11. CL and Customer expressly
agree that this Agreement does not give rise to any third party being a third
party beneficiary or being entitled to any rights whatsoever.
7.12. In the event an action is
brought by CL against Customer to enforce this Agreement, in addition to any
other remedy available to CL, Customer shall reimburse CL for reasonable
attorneys’ fees and expenses of any kind or nature incurred in connection
therewith.
7.13. Customer may not resell the
Service or otherwise assign or transfer this Agreement or any rights or
obligations without the prior written consent of CL.
7.14. In the event that one or
more of the provisions herein is for any reason held to be illegal or
unenforceable, this Agreement will be revised only to the extent necessary to
make such provision(s) legal and enforceable; provided, however, that this
Agreement as revised is consistent with the parties' original intent.
7.15. Either party's failure to
insist upon strict performance of the terms of this Agreement or to exercise
any rights or remedies hereunder shall not waive any of its rights to require
strict performance of such terms, to assert any of the same rights, or to rely
on any such terms any time thereafter.
7.16. This Agreement is made in,
and governed by and subject to the laws and the jurisdiction of the courts of
Jamaica.
7.17. Any cause of action
Customer may have with respect to the Service must be made within one (1) year
after the claim or cause of action arises or such claim or cause of action will
be barred.
7.18. CL and Customer are
independent contracting parties, and this Agreement will not constitute the
parties as principal and agent, partners, joint ventures, or employer and
employee.
7.19. No Customer purchase orders
or similar documents will vary or add to the terms of this Agreement.
7.20. This Agreement constitutes
the entire understanding of the parties with respect to the subject matter
hereof, and it supersedes all prior or contemporaneous oral or written
agreements, understandings and representations.
7.21. CL may at any time on
giving thirty 30 days notice to the Customer vary these terms and conditions
and the Customer will be bound by such variation if the Customer uses the
Service thereafter.