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Terms and Conditions

ARTICLE 1 – TERM

1.1 Term

This Agreement shall commence on the Effective Date set out in the agreement and will continue for the period of time set out in Schedule B (the “ Term ”). Each amended Service will specify the commencement date and contract term.

1.2 Renewal

Unless notice to renew and/or extend the Term of any Service and/or this Agreement has been provided by Customer to Morewave, this Agreement and/or any Service shall continue solely on a month to month basis until terminated by either party on 30 days’ notice. For avoidance of doubt, the Term of this Agreement and/or any Service shall solely renew at the end of such Term on a month to month basis until terminated by either party. Morewave reserves the right to increase the fees payable at any time after the end of the Term. Morewave will provide Customer with 30 days’ prior written notice of any increase in fees.

ARTICLE 2 – SERVICES AND SUPPORT

  • Services

During the Term of this Agreement, Morewave will provide to Customer an exclusive right to use the Services described in Schedule A.

  • Support
  1. Morewave will provide maintenance and repair of the Service in accordance with terms set out in Schedule C attached hereto at its
  2. Without limiting the generality of the foregoing, Customer may send Morewave notice of a problem with a Service at any time and Morewave will respond to such notice in accordance with Schedule C
  3. During the Term of this Agreement, Morewave acknowledges that the Services shall meet or exceed, and be consistent with, the specifications set out in Schedule A hereto as the same may be amended from time to time by written agreement of the parties and as may be required by all applicable
  • Acceptance Testing of Data Connectivity Circuits
  1. Morewave shall provide written notice to Customer that Morewave has completed service acceptance testing (the “ Morewave Testing ”) and shall provide Customer with the test results. Customer shall have 10 business days following receipt of such notice from Morewave to conduct testing of the Services in accordance with its reasonable procedures (the “ Customer Testing ”) to verify installation and operation of the Services in accordance with the specifications set out in Schedule A (as amended from time to time in accordance with this Agreement)
  2. In the event that Customer does not conduct Customer Testing in accordance with paragraphs 3(a) above, Morewave shall notify Customer of not providing its verification of the installation and operation, and if Customer has not provided such verification within five (5) business days of Morewave’s notice, Customer shall be deemed to have accepted the Services.
  3. If Customer does not accept Services, Customer shall send a deficiency notice to Morewave no later than 5pm on the 10 th business day following the delivery of the notice confirming completion of the Morewave
  4. Upon receipt of deficiency notice, Morewave will use its best efforts to remedy or correct such deficiencies within 10 business Customer shall then have the opportunity to re-conduct the Customer Testing in according with Article 2.
  5. If Morewave determines, acting reasonably, that a Service deficiency is due to facilities not provided by Morewave on the Customer’s premises such as internal wiring, faulty equipment or any other deficiency, Customer will be responsible for the correction and all costs associated with remedying such deficiency and the Service Commencement Date shall be deemed to be the 10 th business day following the completion of the Morewave
  6. The first day after the date that Customer accepts or is deemed to have accepted the Services is the “Service Commencement Date.”
  7. Section 2.3 applies to new dark fiber services and new dark wave services. The Service Commencement Date is immediate upon notification of installation for new high speed internet access, telephone services, and managed network
  • Quality of Service (“QOS”)
  1. Morewave’s Network (“MWNet”) is engineered to meet a standard service level of 99.99% up time per month as averaged over the calendar month. The MWNet includes the customer access port and the Morewave backbone, comprising Morewave owned and operated routers, switches, interconnects and peering relationships with other Telecom
  2. MWNet does not include local access circuits (i.e. last mile) or the customer Local Area Network (“LAN”), scheduled maintenance events, customer caused outages or disruptions, interconnect to or from other Telcom Provider Networks, or an Event of Force Majeure (Section 1).

ARTICLE 3 – FEES

  • Fees (Monthly Recurring Costs, “MRC”)

Customer shall pay Morewave the fees as set out in Schedule B (the “ Fees ”) for the use, support, repair and maintenance of the Services on the Service Commencement Date. Such Fees are payable within thirty (30) days from the date of the invoice and in accordance with the terms set out in Schedule B.

  • Interest on Fees in Default

 Accounts remaining unpaid for thirty (30) or more days shall be deemed delinquent. If any amount is unpaid and deemed delinquent, Morewave shall notify Customer in writing of any such unpaid amount, and if Customer has not paid such unpaid amount within thirty (30) days of receipt of such written notice, Morewave reserves the right to charge interest of 2% per month on any amount overdue under this Agreement.

3.3 Termination for Default in Payment

Morewave has the right to terminate this Agreement upon ten (10) days prior notice in writing in the event that Fees are more than ninety (90) days past due. Termination for non-payment is without prejudice to all other obligations of the Customer under this Agreement including the obligation to pay all Fees due under the terms of this Agreement.

3.4 Connection Fees (Non-Recurring Costs, “NRC”)

Connections Fees are due and payable within thirty (30) days from the date of the invoice for such fees. Customer will be informed in writing of additional fees required to complete connection of their services, as detailed in Schedule B. Morewave may not invoice Customer additional fees as detailed in Schedule B without prior written agreement from Customer.

ARTICLE 4 – RESTRICTIONS

  • No Third Party Use

Customer acknowledges and agrees that the Services are intended solely to service the needs of the Customer named in the agreement and Customer’s direct tenants.

4.2 No Interference

Customer shall not, and shall not permit any other person under Customer’s control to, remove, repair, modify, disconnect, or otherwise interfere with the Services or Morewave’s property, or any Morewave equipment directly used to provision the Services, without first obtaining the written consent of Morewave.

4.3 Assignment

Customer shall not assign, transfer or sub-license its interest in this Agreement except to an Affiliate without first having obtained the written consent of Morewave, which shall not be unreasonably withheld. For the purpose of this Agreement “ Affiliate ” means entities at least 50% owned by (whether directly or indirectly), under common ownership with, or which own at least 50% of, the party in question and “affiliated” shall be interpreted accordingly.

ARTICLE 5 - TERMINATION

  • Early Termination

The Customer may terminate this Agreement without cause (for any reason or no reason), at any time, by providing thirty (30) days’ prior notice in writing to Morewave. If Customer so terminates this Agreement the Customer shall pay an amount equal to 50% of the total remaining Fees that would have been payable for the Services during the Term of this Agreement, provided their account is not in arrears. The early termination terms and fees may be altered as agreed by Customer and Morewave and detailed in Schedule B.

5.2 For Cause

Either party may terminate this Agreement immediately upon written notice in the event that:

  • The other party materially breaches this Agreement, provided that where such material default is capable of being remedied, the defaulting party shall have thirty (30) days to remedy such default from the receipt of written notice thereof describing the breach in reasonable detail;

or

  • The other party files, or has filed against it, a petition of bankruptcy or makes an assignment for the benefit of creditors, which is not thereafter dismissed within sixty (60) days, or is unable to pay its debt as they fall due for a period of sixty days, or a receiver, manager, liquidator, administrator, or the local equivalent thereof is appointed of all or a substantial part of the other party’s assets and such appointment is not revoked or withdrawn within thirty (30) days of the

5.3 Changes in regulations

Morewave shall give Customer written notice in the event that (a) there is a change or amendment to existing laws or regulations; or (b) any subsequent law, regulation, ruling, order, directive or policy of any court, or governmental or regulatory body (including the CRTC) becomes applicable to Morewave that has a materially adverse effect on Morewave or its operations and that affects its ability to perform this Agreement; or (c) there is any determination that Morewave is not permitted to continue to provide the Services to Customer. Upon receipt of such notice by Customer, the parties will meet to discuss possible options that would allow Customer’s continued use of all or any portion of the Services or the use of alternative Services by Customer in place of the existing Services. If the parties are not able to agree on an alternative for Customer’s continued use of some or all of the Services or the use of alternative Service by Customer in place of the existing Services within 60 days after Morewave’s notice under this Section, then Morewave will have the right to terminate this Agreement upon 30 days’ further notice to Customer, after which this Agreement will terminate without liability.

5.4 Effect of Termination

  • Upon the termination of this Agreement for any reason any amounts owed to Morewave under this Agreement up to the date of such termination will be due and payable within forty-five (45) days; and
  • In the event of termination for cause by Morewave (including termination for non-payment by Customer) the Customer shall pay an amount equal to 50% of the total remaining Fees that would have been payable for the Services during the Term of this Agreement, unless this clause is superseded in Schedule B. Morewave shall not be liable for any incidental or consequential damages as a result of a the termination of the Agreement under this provision, except to the extent arising out of the negligent acts or willful acts of Morewave, its officers, employees or agents.

ARTICLE 6 – INDEMNITY

  • Customer Indemnity

Customer shall indemnify and hold harmless Morewave, its officers, employees and agents from and against any and all claims, causes of action, lawsuits, losses, damages and reasonable expenses including for bodily injury (including death) or personal injury directly arising from Customers’ misuse of the Services, including, claims against Morewave by such persons for interruption of service or lack of service quality, except to the extent of liability arising out of the negligent acts of Morewave, its officers, employees or agents. Customer further releases Morewave from any responsibility or liability related to the confidentiality of any information available by or through Morewave’s systems, except to the extent arising out of the negligent acts or willful acts of Morewave, its officers, employees or agents.

6.2 Morewave Indemnity

Morewave shall indemnify and hold harmless Customer and its Affiliates and each of its and their directors, officers, employees, contractors and agents from and against all claims, causes of action, lawsuits, losses, liabilities, damages, costs and expenses, including attorney's fees and other legal expenses whatsoever advanced by any person for any bodily injury (including death) or personal injury, or any loss, costs or damages of any nature whatsoever that are caused, result, or arise from or are contributed to by reason of any act or omission of, breach of laws or any breach of this Agreement by Morewave, its officers, employees, or agents, except to the extent of liability directly arising out of the independent negligent acts of Customer, its officers, employees or agents.

ARTICLE 7 – LIMITATION OF LIABILITY

  • Limitation of Liability
  • Except with respect to either party’s breach of confidentiality, any gross negligence, willful misconduct or any loss or damage caused by either party’s negligence and as otherwise provided in this section 7.1, each party’s liability to the other shall not exceed the amount payable or paid by the Customer under this Agreement in the two (2) months immediately preceding the event giving rise to the
  • Customer agrees that Morewave will not be liable to Customer for any third party claims related to defamation, copyright or trademark infringement or the violation of any third party rights arising from the misuse of the Services or the material transmitted or received over the Services or any unauthorized misuse of the Services.
  • For any service outage period, Customer will receive an outage credit, or refund as applicable, after the first 4 hours of the outage, calculated as a percentage of the monthly fees for each hour that the outage continues, up to a maximum of the full monthly fees per calendar month. The parties agree that the outage credit or refund is sole remedy provided hereunder in respect of service outages.

7.2 No Consequential Damages

Except with respect to either party’s breach of confidentiality, any gross negligence, willful misconduct infringement of any third party’s intellectual property rights or any loss or damage caused by either party’s negligence, neither Morewave nor Customer shall be liable for the other party’s or any third party’s loss of use, loss of profits, contract production, or of revenue or for increased cost of working or business interruption or any other indirect incidental, special, punitive, exemplary, or consequential loss or damage however caused arising out of or in connection with this Agreement, irrespective of whether such damages have been caused by the negligence or misconduct of Morewave or Customer and whether or not foreseeable at the time of execution of this Agreement.

ARTICLE 8 – REPRESENTATIONS AND WARRANTIES

  • Representation and Warranties of Morewave
  • Morewave represents and warrants to Customer that:
    • The statement of facts contained in recital A is accurate and
    • Unless otherwise indicated, Morewave has or will obtain(ed) and maintain all easements, rights of way, leases, licenses, authorities, permits, arrangements, and other agreements whether written or verbal, relating to the grant of rights and interest in or access to the real property underlying the Services including manholes, access to poles, ducts, inner ducts, conduits or pedestals in connection therewith relating to the Services (collectively, the “Underlying Rights”) and that the Underlying Rights in no way limit or prohibit Customer’s use of the Services for the term of this Agreement or any renewal
    • Morewave will perform its duties, obligations and responsibilities under each Underlying Right, and promptly notify Customer with any notice of default or termination of an Underlying Right it receives from a grantor thereof. If the loss of an Underlying Right by Morewave makes it impossible for Morewave to continue to provide the Services to Customer, the parties will work together to provide an alternative for Customer and failing provision of satisfactory alternative Services, this Agreement will terminate with no further liability to either
  • Except for any representations and warranties expressly set forth in this Agreement, Morewave makes no warranty, representation or condition of any kind concerning the Services provided under this Agreement. MOREWAVE MAKE NO OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY IMPLIED WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF

8.2 Representation and Warranties of Customer

Customer represents and warrants that the statement of facts contained in recital B above is accurate and true.

ARTICLE 9 – MISCELLANEOUS

  • Force Majeure
  • If either of the parties becomes unable to carry out the whole or any part of its obligations under this Agreement for any reason beyond its reasonable control including, without limitation, acts of God, adverse weather, acts of governmental authorities, riots, strikes, fire, flood, epidemics, war, terrorism (including cyberterrorism), failure of public utilities or damage or destruction of any network facilities (each an “Event of Force Majeure”), then the performance of the obligations of the affected party shall be excused during the continuance of any inability so caused, but such inability shall as far as possible be remedied with all reasonable dispatch. Either party shall give immediate notice to the other party upon becoming aware of an Event of Force Majeure. If an Event of Force Majeure continues for a period exceeding three months or such other period as is mutually agreed to by the parties, the other party may terminate this Agreement by giving the affected party seven days’ notice of its intention to do so.
  • Notwithstanding the occurrence of an event of force majeure, to the extent possible, the party affected shall proceed with the performance of its obligations not thereby
  • The provisions of this Section shall not operate to excuse Customer from any obligation to pay money, except to the extent Morewave is not providing the Services.

9.2 Confidentiality

  • Each party agrees (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party will not be in violation of this Section 9.2 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
  • The restrictions on use and disclosure of Confidential Information set out above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain

through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.

  • For the purpose of this Agreement “ Confidential Information ” means all information regarding a party’s business, including confidential, trade secret, and/or proprietary information, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or

9.3 Governing Law and Jurisdiction

The validity, interpretation and performance of this Agreement shall be governed by the procedural and substantive laws of the Province of British Columbia and the laws of Canada applicable therein without regard to conflicts of laws and principles that would require the application of the laws of any other jurisdiction. All claims, suits, proceedings, or disputes arising hereunder shall be brought in and be subject to the sole and exclusive jurisdiction of the courts located in Vancouver, British Columbia.

9.4 Non-Exercise of Rights

The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder.

9.5 Survival

Each provision of this Agreement reasonably intended by its terms to survive termination or expiration of this Agreement shall so survive.

9.6 Non-solicitation

The parties agree that during the term of this Agreement, and for a period of two (2) years thereafter, neither party shall, without the prior written consent of the other party, induce or attempt to induce or influence directly or indirectly, an employee of that other party to leave its employer; provided however, that there shall be no violation if an employee chooses to contact and gain employment through their own initiative or through any newspaper, trade, internet or other advertisements, job fairs, and the like or that is no longer employed by the other party, that has provided notice of resignation, or that has received notice of impending termination.

9.7 Unenforceable Provisions

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be severed from this Agreement with all other provisions remaining in full force and effect.

9.8 Notices

Any notices or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party at the address set forth on the first page of this Agreement or such other address as a party may advise the other from time to time. Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail (return receipt requested), (c) sent via fax or email (with confirmation of receipt), or (d) sent by recognized courier service.

9.9 Enurement

This Agreement will enure to the benefit of and be binding on the successors and assigns of Morewave and Customer.

9.10 Third Party Rights

Nothing in this Agreement is intended to nor shall it be construed as conferring on or giving to any party, other than the parties to this Agreement and their permitted successors or assigns, any rights under this Agreement.

9.11 Headings

The headings contained in this Agreement are for reference purposes only and are not to be used in the interpretation of this Agreement.

9.12 Execution in Counterparts

This Agreement may be executed in counterparts and transmitted by facsimile or electronic mail and each part shall be an original and together they shall constitute an original agreement.

  • Compliance

Both parties hereby agree at all times to comply with all applicable laws, including, but not limited to data privacy/data security laws, import and export laws, legal restrictions, national security controls and regulations of the applicable foreign agency or authority, and any other applicable laws.

  • Subcontracting

Where all or part of the services or obligations is subcontracted, Morewave remains fully liable and responsible (i) for performance of the services and/or obligations, (ii) to ensure that the subcontractor has complied with all of Morewave’s obligations hereunder, and (iii) for the acts and omissions of the subcontractor, its employees and agents.

SCHEDULE C

MAINTENANCE AND REPAIR OF THE SERIVCES

Access

All inspection, maintenance, repair and restoration work respecting the Services will be performed by Morewave or its authorized contractor(s). Customer will have access to connect its equipment at the Points of Presence. Customer will have the right, at its own expense, to have a representative of Customer or its authorized contractor(s) observe any inspection, maintenance, repair or restoration operation respecting the Services provided by Morewave with one week’s prior notice or such shorter notice as may be reasonable and feasible in the case of emergency situations. Customer will ensure that it, and all persons accessing or using the Services, comply with all applicable Morewave access procedures (including adequate notice), government codes, ordinances, rules, regulations and restrictions and that such access does not disrupt the network.

Operation & Maintenance

Morewave will operate and maintain the Service in a manner consistent with the Morewave standards and practices. Basic maintenance will include inspection services, routine remedial maintenance services and ordinary course repairs. Morewave will, to the extent it is reasonably able to do so, give to Customer fifteen

(15) business days’ notice before commencing any work that might be expected to disturb or place at risk the normal operation of the Services. Operation and maintenance does not include repair and restoration described below.

Repair & Restoration

Should the Customer experience a material service deficiency during the service period of this Agreement, that is any failure or interruption of the Customer’s telecommunications services, then Customer will perform diagnostic testing and take reasonable steps to isolate the problem. If it is determined that the source of the problem outside of the customer controlled equipment, then the Customer will contact Morewave Help Desk and notify Morewave of the affected Services, the severity or urgency of the situation, and the level of service Customer is obliged to provide to its end-users, should the Customer have prior written consent to resell Morewave Services.

If Customer is reporting an emergency call, then Morewave will respond accordingly and make commercially reasonable efforts to provide Customer with emergency maintenance and restoration services as may be necessary to inspect, assess, and repair the Services as quickly as possible. It is the intent of Morewave to resolve outages within 4 hours of notification from the Customer. Safety and access restrictions may delay repair to 8 hours or more.

To the extent reasonably practicable, Morewave will ensure that the restored Services meet the same specifications as the Services had prior to the incident giving rise to the restoration services, and in any event, the minimum performance specifications for the Services. Morewave Help Desk will provide timely status updates to Customer of the repair work carried out by Morewave, if reasonable to do so given the severity of the outage and urgency of the repair. Morewave shall provide or cause to be provided, on a 7 days per week, 24 hours per day basis, such repair and restoration work and assistance.

Without limiting the foregoing, Morewave acknowledges and agrees that repair and restoration includes where necessary or desirable in the circumstances the provisioning of a redundant path for connection.


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