This Wholesale Master Services Agreement (this "Agreement") is entered into by and between The Internet Centre Canada Inc., an Alberta corporation ("The Internet Centre", "we", "us" or "our") and the wholesale customer identified in a Service Order (the "Reseller", "you" or "your"). It governs the telecommunications and related services we provide to you for resale (the "Services").
This Agreement applies where you purchase Services in order to provide telecommunications or Internet services to your own customers. Where you purchase a service solely for your own use and not for resale, that service is governed by our Business Services Agreement rather than this Agreement, unless the applicable Service Order states otherwise.
"Service Schedule" means a schedule to this Agreement that sets out the service description and service-specific terms for a category of Services. The Service Schedules in effect are listed in section 3 and are incorporated into this Agreement by reference.
"Service Order" means a written or portal order, quotation or order form, accepted in accordance with section 4, that identifies a Service, its Minimum Service Term, its charges, and the Service Schedule that governs it.
"Affiliate" means an affiliated body corporate as defined in the Canada Business Corporations Act.
"Minimum Service Term" means the minimum commitment period for a Service, beginning on its activation date, as stated in the applicable Service Order.
"Monthly Recurring Charge" or "MRC" means the recurring monthly fee for a Service, excluding usage, taxes and one-time charges.
"End User" means a person who obtains a service from you that is provided in whole or in part by means of the Services, and who uses that service for its own purposes and not to provide telecommunications services to others.
"Third-Party Costs" means charges we incur from an underlying carrier or supplier to provide a Service to you, including wholesale access, loop, transport, installation and disconnection charges.
"CRTC" means the Canadian Radio-television and Telecommunications Commission, and "CCTS" means the Commission for Complaints for Telecom-television Services.
"Business Day" means a day other than a Saturday, Sunday or statutory holiday in the Province of Alberta.
This Agreement consists of: (a) these general terms and conditions; (b) each Service Schedule applicable to a Service you purchase; (c) the documents incorporated by reference in this Agreement or a Service Schedule, including our Acceptable Use Policy and Privacy Policy; and (d) each accepted Service Order.
The Service Schedules are:
If a Service Schedule conflicts with these general terms and conditions, the Service Schedule governs for the Services it describes. If a Service Order conflicts with these general terms and conditions or a Service Schedule, the general terms and conditions or the Service Schedule govern, except where the Service Order expressly states that it amends a specific provision and is signed by both parties. For certainty, wherever this Agreement or a Service Schedule states that a matter (such as rates, service levels, notice periods, limits or technical parameters) is as set out in the Service Order, the Service Order governs that matter, and that is not a conflict. If an incorporated policy conflicts with this Agreement, a Service Schedule or a Service Order, those documents govern for the Services.
You may order Services by submitting a Service Order in a form we accept, including through our wholesale portal where available. A Service Order becomes binding when we accept it, and we may decline a Service Order where facilities, capacity or an underlying carrier service is not available, or on credit grounds under section 8. Target delivery dates are estimates unless a Service Order states a committed date.
Moves, additions, changes and disconnections to an existing Service may be requested through our wholesale portal, by email to a contact we designate, or by a further Service Order. A change to the quantity, configuration or features of a Service implemented at your request and reflected on a subsequent invoice is binding without a formal amendment if you continue to use the Service after receiving that invoice; this mechanism does not amend the legal terms of this Agreement or a Service Schedule.
Resale scope. We grant you the right to resell the Services, or services you create using the Services, to End Users. You may not resell the Services to another reseller, carrier or wholesale purchaser without our prior written consent.
Your name, not ours. You will market, sell, bill and support your services under your own name and brand. You will not use our name, trademarks or brand without our prior written consent, and you will not state or imply to End Users that they are customers of The Internet Centre or that you have any relationship with us other than the purchase of wholesale services. We make the same commitments regarding your name and brand.
The End User relationship is yours. You have sole responsibility for your End Users, including ordering, installation coordination, billing, collection, support, complaint handling and termination. We have no obligation to deal with your End Users, and we will refer any End User who contacts us back to you. You will cooperate with us, and will obtain your End Users' cooperation, as reasonably needed to install, maintain, repair and remove Services at End User premises.
No agency. This Agreement does not create any agency, partnership, joint venture or employment relationship. Neither party may bind the other.
This Agreement takes effect on the date of the first Service Order accepted between the parties or, where the parties execute this Agreement directly, the date stated on its signing page (the "Effective Date") and continues for an initial term of one (1) year, and thereafter month to month until terminated by either party on at least ninety (90) days written notice. Termination of this Agreement does not shorten any Minimum Service Term then in effect: the Agreement continues to govern each such Service until its Minimum Service Term expires, but no new Service Orders may be placed after notice of termination is given. Services that are month to month when this Agreement terminates end on the Agreement's termination date, without separate notice.
Each Service has the Minimum Service Term set out in its Service Order, beginning on its activation date. Unless the Service Order states otherwise, at the end of its Minimum Service Term a Service continues month to month at the then-current rates, and either party may cancel it on at least thirty (30) days written notice. We may change the rates for a month-to-month Service on at least sixty (60) days written notice.
Invoicing. We invoice Monthly Recurring Charges monthly in advance, and usage and one-time charges monthly in arrears, in Canadian dollars. Payment in full is due by the due date shown on the invoice or, if none is shown, within thirty (30) days of the invoice date. Overdue amounts bear a late payment charge of 2% per month (26.82% per year) from the due date.
No set-off. Amounts due are payable without set-off or deduction, except amounts withheld under a bona fide dispute raised in accordance with this section.
Back-billing. We may invoice unbilled or under-billed recurring or usage charges within twelve (12) months of the date they were incurred, and any other charge within one hundred and fifty (150) days of the date it was incurred.
Disputes. You may dispute a charge in good faith by giving us written notice identifying the charge and the basis of the dispute, with supporting documentation, within ninety (90) days of the invoice date. You must pay all undisputed charges when due. The parties will work to resolve a dispute within sixty (60) days of notice; an unresolved dispute may be escalated under section 22. If a dispute is resolved in your favour we will credit the amount with interest at the late payment rate from the date paid; if it is resolved in ours, you will pay the amount with interest from the original due date.
Pass-through changes. Where a Service depends on an underlying carrier service or a regulated wholesale rate, we may pass through increases or decreases in those Third-Party Costs, and changes flowing from a CRTC tariff or decision, on at least thirty (30) days written notice, effective no earlier than the date the change applies to us. If pass-through increases raise the total Monthly Recurring Charge for a Service by more than ten percent (10%) over any twelve (12) month period, you may cancel the affected Service on thirty (30) days written notice, without the early termination charge in section 14.
We may verify your creditworthiness before accepting this Agreement or any Service Order, and you consent to us obtaining credit information for that purpose. If you fail to pay undisputed charges when due, or there is a material adverse change in your financial condition, we may require reasonable assurance of payment in the form of a security deposit or letter of credit of up to three (3) months of Monthly Recurring Charges plus reasonably estimated monthly usage charges, and may decline new Service Orders until it is provided. We may set off amounts you owe against any deposit. Deposits do not bear interest unless required by law, and the unused balance is returned within sixty (60) days of final settlement of your account.
Charges are exclusive of taxes. You will pay all applicable GST, HST, PST and similar transaction taxes, and all government levies, regulatory fees and 9-1-1 fees applicable to the Services or their resale, other than taxes on our net income. If you claim an exemption you will provide valid supporting documentation, and you will reimburse us for any assessment (with interest and penalties) resulting from an invalid exemption claim.
For clarity, contribution charges, CRTC telecommunications fees and similar regulatory assessments payable by you in respect of your own revenues are your responsibility, and those payable by us in respect of ours are our responsibility.
Both parties. Each party will comply with the Telecommunications Act (Canada), the decisions, regulatory policies and other requirements of the CRTC, and all other laws applicable to it. If a legal or regulatory change prohibits, restricts or materially alters our ability to provide a Service, we may amend or withdraw the affected Service on at least forty-five (45) days written notice, or such shorter notice as the legal or regulatory change allows, and neither party will have further liability for the withdrawn Service other than charges accrued; no early termination charge applies to a Service withdrawn under this paragraph.
Registration before service. You represent that you are, and will remain, registered with the CRTC on the applicable registration list (including as a reseller of telecommunications services or of high-speed retail Internet service) before we activate any telecommunications Service you will resell, unless registration is not required for your actual offering or you qualify for a registration exemption and have identified the basis to us in writing. You will provide evidence of registration on request, and will notify us in writing immediately if your registration lapses, is suspended or is revoked. We may suspend or decline Services while you are required to be registered and are not.
Obligations that follow the Services. As a condition of receiving the Services, you will comply, at your own cost, with every regulatory obligation that applies to your offering of services to End Users, including as applicable:
You will provide us, on reasonable request, with confirmation of your compliance with this section. If your non-compliance exposes us to regulatory action, or an authority directs us to act, we may suspend the affected Services on notice to you and, where the non-compliance is not cured within thirty (30) days, terminate them.
Our own 9-1-1 duty. As an underlying provider, we are required by the CRTC (Telecom Regulatory Policy CRTC 2016-12) to communicate the 9-1-1 obligations to you, to monitor your compliance with them, and to report actual or suspected non-compliance to the CRTC. You acknowledge that we will do so, and that a report made in good faith under that requirement is not a breach of any confidentiality obligation in this Agreement.
Lawful access. Each party will comply with lawful demands of courts and law enforcement applicable to it, and will maintain the capabilities required of it to assist with lawful interception and disclosure demands applicable to the services it provides. Where a demand relating to an End User is directed to us, we may refer the requesting authority to you, and will notify you unless prohibited by law.
Audit. No more than once in any twelve (12) month period, or at any time where a regulator requires it of us, we may, on ten (10) Business Days written notice, audit your records demonstrating compliance with this section 10 — including 9-1-1 notices and consents, know-your-customer records for Numbers, and evidence of registration. You will provide the requested records within a reasonable time; section 17 (Confidentiality) applies to everything provided.
You will comply with, and will require your End Users to comply with, our Acceptable Use Policy and any use restrictions in the applicable Service Schedule. You will not, and will not permit any End User to: tamper with the Services or our facilities; use the Services in a way that damages or interferes with our network or other customers' use of it; use the Services to avoid payment of charges; or use the Services to transmit content or conduct activity that violates applicable law.
You are responsible for all use of the Services provided to you, whether or not authorized by you, including fraudulent use and use by compromised End User systems, and for all charges resulting from that use. You will maintain reasonable security and fraud controls appropriate to the services you offer, and will notify us promptly of any suspected compromise affecting the Services. We may, but are not obliged to, apply protective measures such as usage limits, destination blocks or rate limits, and we will tell you when we do.
You will operate a support function for your End Users, and will perform first-level diagnosis before referring a fault to us. We provide support to you, not to End Users, through the contact methods and hours stated in the applicable Service Schedule or Service Order.
You will maintain commercial general liability insurance of at least two million dollars ($2,000,000) per occurrence, and any additional coverage stated in a Service Order, for as long as you receive Services, and will provide certificates of insurance on request.
Where a Service is delivered at an interconnection point, network-to-network interface or demarcation point identified in a Service Schedule or Service Order, each party is responsible at its own cost for its facilities and equipment on its side of that point. We are not responsible for the performance of equipment, software or services we do not provide, including your platform and your End Users' equipment.
Where installation at your premises or an End User premises is required, you will obtain (or ensure the End User obtains) safe and timely access and all landlord, building and third-party consents, and will prepare the site in accordance with our reasonable instructions. You are responsible for loss of or damage to our equipment at your or an End User's premises, other than normal wear. Equipment we provide remains our property and must be returned within thirty (30) days of the end of the Service, failing which you will pay its replacement cost.
We may suspend some or all Services if an undisputed invoice remains unpaid ten (10) days after we give you written notice of non-payment. We may suspend affected Services immediately and without notice where reasonably necessary to: prevent fraud or protect the safety of persons; protect our network, facilities or other customers from damage or interference; comply with a law, court order or direction of a regulator or other authority; or respond to your or an End User's violation of law or of the Acceptable Use Policy. We will limit any suspension to the Services and scope reasonably required, restore service promptly once the cause is resolved, and may charge a reasonable reconnection fee. Suspension does not relieve you of payment obligations.
If you terminate a Service for convenience before the end of its Minimum Service Term, or we terminate it for your uncured material breach (including non-payment), you will pay us, as a genuine pre-estimate of our loss and not as a penalty, an early termination charge equal to the sum of:
When we waive it. We will waive the early termination charge in either of the following cases: (a) you cancel a Service because we have made a material adverse change to it; or (b) during the Minimum Service Term you replace it with another Service from us having a Monthly Recurring Charge no lower and a remaining term at least as long. Upgrading should not cost you a termination charge.
Either party may terminate this Agreement, a Service Schedule or a Service Order by written notice if the other party materially breaches it and fails to cure the breach within thirty (30) days of written notice (ten (10) days for non-payment). Either party may terminate immediately by written notice if the other becomes insolvent or bankrupt, makes an assignment for the benefit of creditors, has a receiver appointed, or is wound up or dissolved, to the extent permitted by applicable insolvency law.
You may terminate a Service at any time on at least thirty (30) days written notice to billing@incentre.com, subject to the early termination charge in section 14 where it applies.
End User transition. On termination or expiry of a Service used to serve End Users, the parties will cooperate in good faith for a reasonable transition period of up to ninety (90) days — at the rates then in effect — to migrate End Users without avoidable interruption, including supporting number porting and access migrations. Transition assistance is conditional on your payment of accrued and ongoing charges and any reasonable assurance of payment we require under section 8, and does not limit our suspension rights or our legal and regulatory obligations. We have no obligation to notify your End Users, and no responsibility to them, on termination.
All facilities, equipment, software, systems, IP addresses (except as stated in a Service Schedule) and documentation we use to provide the Services remain our property or that of our suppliers. Telephone numbers are not property of either party and are governed by Wholesale Schedule 4 and the rules of the numbering authorities. This Agreement grants you no intellectual property rights other than the right to use the Services as described.
Each party will use the other's confidential information — including non-public rates, Service Orders and quotations, network and technical information, and business information not generally known (the published text of this Agreement and the Service Schedules is not confidential) — only to perform this Agreement, will protect it with at least reasonable care, and will not disclose it to third parties other than employees, affiliates and professional advisers with a need to know who are bound to confidentiality. These obligations continue for three (3) years after this Agreement ends. They do not apply to information that is or becomes public without breach, was lawfully known before disclosure, is independently developed, or must be disclosed by law or to a regulator, in which case the disclosing party will give the other prompt notice where lawful to do so. Either party may disclose information to the CRTC or the CCTS as required to handle a complaint or comply with a regulatory requirement. Neither party will issue a press release or public statement about this Agreement or the relationship without the other's prior written consent.
As between the parties, you control the relationship with your End Users and their personal information. Information you provide to us about End Users (such as service addresses, 9-1-1 records and porting data) may be used by us only to provision, operate, support, bill and secure the Services and to comply with law, and we will protect it in accordance with our Privacy Policy and applicable privacy law. Each party will notify the other without undue delay of any breach of security safeguards affecting information of the other party it holds.
You will indemnify and hold us harmless from third-party claims, and resulting damages, costs and reasonable legal fees, arising out of: (a) your or your End Users' use or resale of the Services, including any claim by an End User relating to services you provide; (b) your breach of section 10 (Regulatory compliance), including any failure to give the 9-1-1 notices and obtain the consents required for VoIP services; (c) content transmitted or activities conducted using your services; and (d) your equipment and facilities.
We will indemnify and hold you harmless from third-party claims, and resulting damages, costs and reasonable legal fees, arising out of: (a) a claim that the Services as provided by us infringe a Canadian patent or copyright, except to the extent the claim arises from your modifications, your combinations with things we did not supply, or use in breach of this Agreement; and (b) bodily injury, death or damage to tangible property caused by our negligence or wilful misconduct. If an infringement claim occurs or appears likely, we may procure the right to continue the Service, modify or replace it so it is non-infringing, or, if neither is commercially feasible, terminate the affected Service without further obligation to provide it, subject to our indemnity obligations above and a refund of prepaid unused charges.
The indemnified party must give prompt written notice of a claim, allow the indemnifying party to control the defence and settlement (provided any settlement releases the indemnified party without admission or payment by it), and cooperate reasonably at the indemnifying party's expense.
We will provide the Services with reasonable skill and care. Except as expressly stated in this Agreement, a Service Schedule or a Service Order, the Services are provided without warranties, representations or conditions of any kind, express or implied, including fitness for a particular purpose, and we do not warrant uninterrupted or error-free operation. Service level commitments and the credits stated for them, where set out in a Service Schedule or Service Order, are your sole remedy for the service failures they measure.
NEITHER PARTY IS LIABLE TO THE OTHER FOR LOSS OF PROFITS, REVENUE, BUSINESS, GOODWILL OR DATA, FAILURE TO REALIZE SAVINGS, COST OF SUBSTITUTE SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER ARISING, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT ADVISED OF THE POSSIBILITY. EACH PARTY'S TOTAL AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO THE CHARGES PAID OR PAYABLE FOR THE AFFECTED SERVICES IN THE THREE (3) MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO THE LIABILITY (OR, WHERE THREE MONTHS HAVE NOT YET ELAPSED, THE CHARGES PAYABLE FOR THE FIRST THREE MONTHS). THIS LIMITATION IS CUMULATIVE AND NOT PER INCIDENT.
These exclusions and limits do not apply to: your obligation to pay charges; either party's indemnity obligations under section 19; a breach of section 17 (Confidentiality); or your liability to third parties or to a regulator arising from a breach of section 10 (Regulatory compliance). Nothing in this Agreement excludes liability that cannot be excluded under applicable law. Each party acknowledges that these allocations of risk are reflected in the rates and are reasonable between sophisticated commercial parties.
Neither party is liable for a failure or delay caused by events beyond its reasonable control, including power grid failures, fibre cuts by third parties, failures of underlying carriers' networks, labour disruptions, civil disturbance, acts of government, fire, flood and natural disasters. The affected party will use reasonable efforts to mitigate and resume performance. If a force majeure event prevents a Service for sixty (60) consecutive days, either party may cancel the affected Service without further liability beyond charges accrued to the start of the event. Payment obligations for Services already rendered are not excused.
The parties will first attempt to resolve any dispute arising out of this Agreement through good-faith negotiation. On written request of either party, a senior executive of each party will meet (in person or remotely) within ten (10) Business Days to attempt resolution. If the dispute is not resolved within fifteen (15) Business Days of that referral, the parties may, by mutual agreement, refer it to binding arbitration before a single arbitrator under the Arbitration Act (Alberta), seated in Edmonton, Alberta, with the arbitrator bound by the limitations of liability in this Agreement. If either party declines arbitration, each party may pursue its remedies in court. Nothing in this section prevents either party from seeking interim or injunctive relief, or from referring a matter within the CRTC's jurisdiction to the CRTC.
This Agreement is governed by the laws of the Province of Alberta and the federal laws of Canada applicable in Alberta, without regard to conflict of laws principles. Subject to section 22, the parties submit to the exclusive jurisdiction of the courts of Alberta.
Assignment. Neither party may assign this Agreement without the other's prior written consent, not to be unreasonably withheld, except that either party may assign it to an affiliate or in connection with a sale or reorganization of its business, on written notice, provided the assignee is capable of performing it.
Notices. Notices must be in writing and are effective when delivered: by email to the notice addresses stated in the Service Order (with no bounce or delivery-failure message), on the Business Day sent if sent before 5:00 p.m. Mountain Time, otherwise the next Business Day; by personal delivery or courier, on delivery; or by registered mail, four (4) Business Days after mailing. Our notice address is The Internet Centre Canada Inc., 4130 95 Street NW, Edmonton, AB T6E 6H5, support@incentre.com; cancellation and billing notices go to billing@incentre.com as section 15 and the Service Order provide.
Language. The parties confirm their express wish that this Agreement and all documents related to it, including notices and Service Orders, be drawn up in English. Les parties confirment leur volonté expresse que la présente convention, ainsi que tous les documents s'y rattachant, soient rédigés en langue anglaise.
Electronic signatures. Each party consents to entering into this Agreement, each Service Order and related documents electronically. An electronic signature applied through the signing service we use has the same effect as a handwritten signature, and the signing service's certificate of completion may be produced as evidence. This Agreement may be signed in counterparts.
Regulatory adaptation. Nothing in this Agreement is to be construed as contravening a requirement of the CRTC or other regulator of competent jurisdiction. If any part of this Agreement is found to contravene such a requirement, that part is deemed amended to the minimum extent necessary to comply, and the parties will adjust the Agreement so as to preserve its original commercial intent.
Severability; waiver; survival. If a provision is unenforceable, the remainder stays in effect. A waiver is effective only if express, written and signed, and no failure to enforce is a waiver. Provisions that by their nature survive termination — including accrued payment obligations, the audit right in section 10, sections 14, 15 (End User transition), 17, 18, 19, 20, 22 and 23 — survive.
Entire agreement. This Agreement, together with the documents it incorporates by reference and each accepted Service Order, is the entire agreement between the parties regarding the Services and supersedes prior understandings on that subject. Except as expressly permitted in this Agreement (including rate changes and pass-through changes under sections 6 and 7), amendments must be in writing and agreed by both parties.
The Internet Centre Canada Inc.
4130 95 Street NW, Edmonton, AB T6E 6H5, Canada
Email: support@incentre.com · Phone: 780-450-6787