In these Business Terms of Service (the “Terms”), “you” and “your” refer to the Customer who signed the Differ Master Services Agreement, and “us”, “we” and “our” refer to Differ Communications Limited or, depending on context, refer to both Customer and Differ Communications Limited.
IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE, AS AMENDED FROM TIME TO TIME, STOP USING THE SERVICE IMMEDIATELY AND NOTIFY US THAT YOU WANT TO CANCEL THE SERVICE.
- Definitions. The following terms, when capitalized, have the following meanings:
“Agreement” collectively means the Differ Master Services Agreement signed by you and us, these Terms, as well as the Schedules.
“Applicable Laws” means any law, statute or regulation applicable to the provision of the Services or the Products, and includes any ruling, decision, ordinance, award, code, directive, order policy, guidelines, requirements or standards issued by any regulatory authority having jurisdiction, including the Canadian Radio-television and Telecommunications Commission (“CRTC’’), Innovation, Science and Economic Development Canada, and any regulatory agency, court or tribunal.
“Authorized Persons” has the meaning set out in Section 8.d.
“Customer Equipment” means any material, equipment or software that you own or that you lease, licence or otherwise obtain from a third party, and excludes the Differ Equipment.
“Damages” means damages, expenses, costs, liabilities, actions, suits, proceedings, claims or losses.
“Differ Equipment” means all material, intellectual property, equipment and software required for you and your End Users to use the Services or Products and that we make available to you and your End Users, and any other equipment, including fibre optic cable, patch panels, transport conductors, switching equipment, any network and facilities, including third party network and facilities, that we use to provide you and your End Users with the Services. Differ Equipment does not include the Products purchased under this Agreement or Customer Equipment.
“Differ Policies” means the policies of Differ available from time to time at Differ.ca, including, without limitation, the following: Acceptable Use Policy (which is incorporated by reference herein and available at Differ.ca, and subject to change from time to time) and includes any additional policies in accordance with Section 8.b.
“End User” means any individual that you authorize to benefit from the Products and Services for their own use.
“EULA” means an end user licence agreement or similar agreement (such as a software licence) entered into between you and the third party who directly provides to you the Third Party Services, or any of our subcontractors who supply products or services as part of the Products or Services. The EULA may be provided as a ‘click-through’ or ‘shrink-wrap’ licence, or a part of a Schedule, and contains the terms and conditions that prescribe conditions of use by you and your End Users, as well as the rights of the third party or subcontractor, as applicable. “Fees” means all applicable fees for the Services and the price for the Products and any other amount payable by you under the Agreement, including termination fees.
“Product” means (i) the hardware, equipment and related components, including any manufacturer embedded software and/or firmware; or (ii) the machine executable computer program, software module or software package or any part thereof (in object code only), including any commercially available software, irrespective of how it is stored or executed; supplied, licensed or sub-licensed by us to you under a Schedule.
“Schedule” means any document that sets out the terms and conditions related to the Services and/or Products you have purchased from us, including the Fees, that are in addition to the terms and conditions that are set out in these Terms. A Statement of Work constitutes a Schedule. A Schedule may be attached to, or incorporated by reference in, the Differ Master Services Agreement at the time of signature or added thereafter by way of amendment executed by you and us.
“Service” means any of the services purchased under the Agreement described in a Schedule or, when applicable, a Statement of Work.
“Service Term” means the period during which a Service is provided, as provided in the relevant Schedule.
“Statement of Work” means a document that sets forth the additional terms and conditions in regard to a Service or Product, including our respective roles and responsibilities, to take into account specific requirements applicable to such Service or Product, including, without limitation, any Schedules or Appendices to the Differ Master Services Agreement.
“Taxes” means sales, use, retail sales, goods and services, harmonized sales, value-added, excise and other similar taxes.
“Third Party Services” means any services, software, applications, hardware, content, or data query functions not provided directly by us under the Agreement, but that may be accessed or obtained by you through our Services and Products or otherwise. - Interpretation
a. Headings. Headings of articles, sections and paragraphs are inserted for convenience of reference only and do not affect construction or interpretation of the Agreement.
b. Extended Meanings. Except where the context otherwise indicates, words importing the singular only include the plural, and vice versa, and words importing gender include all gender. The term “including” means “including without limitation”.
c. Order of Precedence. If there is any conflict between the provisions of the Terms and those of the Differ Master Services Agreement and any Schedule, the provisions of the Terms govern unless otherwise expressly provided for in writing in the Differ Master Services Agreement or any Schedule.
d. Severability. Any provision of the Agreement that may become unenforceable is considered separate and severable from the remaining provisions of the Agreement, which remaining provisions remain in force.
e. Governing laws. The Agreement and any disputes arising out of or related to the Agreement, will be governed by and construed in accordance with the laws of the Province of Nova Scotia, and the applicable federal laws of Canada. We both waive trial by jury.
f. Dispute Resolution. Any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise) arising out of or relating to this Agreement (each a “Dispute”) is conducted only on an individual basis and not in a class or representative action or as a member in a class, consolidated or representative action. You must notify us of a Dispute in writing at: legal.notices@differ.ca. Any action or proceeding arising out of the Agreement must be instituted in the courts of the province of Nova Scotia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such action or proceeding. - Services and Products
a. Applicable Terms. We provide you with the Services and Products on the conditions set forth in these Terms and in any Schedule.
b. Use of Subcontractors for Services. We may use subcontractors or agents to perform the Services but we are not relieved of our obligations by doing so.
c. Software Terms. By installing or using Products, your use and the use by your End Users are governed by the applicable EULA.
d. Change to Services. We may, from time to time, substitute a Service with an alternative service or technology as long as it provides similar functionality as the Service. The definition of “Service” includes such alternative service or technology. We are not responsible if any change in a Service affects the performance of equipment, hardware or software other than the Differ Equipment or cause it to become obsolete or require modification. We will provide you with 60 days’ prior notice of any material change to a Service.
e. Suspension of Services. We may suspend all or part of the Services or access to the Services immediately: (i) if you fail to pay us any amount by the due date pursuant to this Agreement or any other agreement; (ii) to prevent any actual or potential adverse impact to the Differ Equipment; (iii) if we reasonably suspect or determine that you or your End Users do not comply with the obligations set out in the Agreement and such non-compliance may adversely impact the Differ Equipment; (iv) to maintain, repair, improve or ensure the proper operation of the Services or the Differ Equipment; or (v) to comply with Applicable Laws. We generally keep suspensions to a minimum and give you prior notice of such suspensions where reasonably practicable.
f. Third Party Services. This section does not apply to the Products and Services we directly sell to you under the Agreement. You take responsibility for any Third Party Services, including those for which we invoice you for your convenience. We are not responsible for the provision of Third Party Services or to correct or fix any problems or errors relating to or caused by the installation, configuration, modification or use of any Third Party Services or any components thereof.
g. Service Monitoring. We have no obligation, but have the right at any time, to monitor use of the Services as necessary to comply with Applicable Laws or investigate any information, data, files, pictures or content in any form or use of Services as necessary to operate the Services or to protect our rights or property, or those of others.
h. Content. You understand that there is some content accessible through the Services that may be offensive to you or your End Users, or that may not be in compliance with Applicable Laws. You acknowledge that we are not responsible for, and do not own or have any control over the availability, accuracy or any other aspect of any third party content in any form or any type accessible or that may be made available to or by you or your End Users through the use of the Services.
i. Security Measures Accountability. We make no promise that your use and the use by your End Users of the Services is entirely secure and private as it may be possible for third parties to monitor communications or access your data while you or your End Users use the Services. You assume full responsibility for the establishment of appropriate security measures to control access to your equipment and to the information that you or your End Users transmit. In addition, you are solely responsible for taking the necessary precautions to protect your premises, networks and systems, and all software, data and files stored on or otherwise forming part of your networks and systems, against unauthorized access by your employees or any third party, and that such responsibility includes protection against unauthorized access through the Services. We are not liable for any Damages whatsoever relating to your failure to take appropriate precautions as set forth above. - Fees
a. Payment Terms. Payment in full of Fees and applicable Taxes for Services and Products, including Services and Products we may have provided prior to the execution of the Agreement or any amendment thereto, is due within thirty (30) days of the invoice date, without any right to set-off or deduction. If you are legally authorized to purchase Services or Products free of Taxes, you must provide us with satisfactory evidence of such authorization. Fees and Taxes not paid within the prescribed period are subject to a late payment charge at the rate specified in the invoice, which rate may vary from time to time, calculated daily from the invoice date and compounded monthly.
b. Build Costs. If the installation and deployment of a Service result in build costs, including trenching, building access, building diverse routes, or upgrading access capacity, you are liable to pay such costs. We will quote such costs to you and we will not proceed with the required build unless you have approved our quote. If you do not approve the quote, you may, as your sole remedy, terminate such Service without incurring termination fees.
c. Modification to Fees. Unless as expressly set forth in a Schedule, we will not increase the Fees for a Service for the initial Service Term. Notwithstanding the foregoing, (i) if the Services are provided under a month-to-month term, we may modify the Fees by providing you with at least 60 days advance written notice of the change; or (ii) if our costs of providing Services or Products increase as a result of any change to Applicable Laws, then we may increase the Fees in order to reflect such increased costs and make any consequential amendment to the relevant Schedules or, if applicable, Statements of Work that are necessary as a result of the change to Applicable Laws.
d. Disputed Charges. You must contact our customer support team in accordance with Section 12.h within ninety (90) days if you dispute any amount set out on your invoice or any automatic bill payment. Failure to notify us within this period will constitute your acceptance of the invoice or automatic bill payment.
e. Credit Checks. You authorize us to obtain information about your credit history and agree that we may provide information to others about your credit experience with us where it is necessary for us to provide and manage the Services.
f. Administrative Charge and Suspension for Non-Payment. If a payment dispute is resolved against you, or if your automatic bill payment fails, you must pay the amounts due immediately or we will, where permitted under the CRTC Internet Code, suspend the Service until the overdue amounts are paid. Information about the CRTC’s Internet Code can be found at https://crtc.gc.ca/eng/internet/code.htm (“Internet Code”). We may also charge you a late payment charge of 2.5% on the outstanding amount, calculated and compounded monthly from the date of the relevant invoice until the outstanding amount is paid, in addition to a reasonable administrative charge to cover our costs incurred in relation to the non-payment. - Service Term
a. Service Term. The Service Term associated with a Service is set forth in the relevant Schedule (the “Service Term”).
b. Renewal. Each Schedule includes the terms and conditions upon which the initial Service Term may be renewed or extended, including the applicable Fees. If a Schedule does not contain renewal terms and conditions, then, upon the expiration of the then applicable Service Term, the Service is automatically renewed on the same terms and conditions on a year-to-year basis until terminated by you or us on 90 days’ prior written notice. - Termination
a. Early Termination of Service by You. You may terminate a Service at any time by giving us at least 30 days’ prior written notice. If you terminate a Service, all Fees, Taxes and late payment charges due for the Service up to the date of termination are payable by you. Further, you must pay the applicable termination fees set out in the relevant Schedule. If no termination fees are specified in the Schedule, you must pay an amount equal to 50% of the remaining monthly Fees for the Service that you have terminated that would have been payable to the end of the Service Term. You acknowledge that the termination fees are a reasonable estimate of liquidated Damages and are not a penalty. No termination fees are payable by you if you terminate the Agreement or Services for cause as set forth below.
b. No Cancellation or Return of Products. Subject to section 9.a and except as otherwise set forth in any Schedule, we do not accept returns or provide refunds and we charge in full all Products ordered by you.
c. Termination for Cause. Either of us may terminate the Agreement or any Service without liability by giving notice in writing to the other if: (i) the other commits a breach with respect to a material obligation and does not remedy that breach within 30 days after receiving written notice of the breach; or (ii) the other enters into a compulsory or voluntary liquidation, or convenes a meeting of its creditors or has a receiver, trustee or monitor appointed over any part of its assets or takes or suffers any similar action in consequence of a debt, or ceases for any reason to carry on business. Your failure to pay any invoice when due or your failure to comply with the provisions of Section 8.a (Prohibited Use) or Section 8.b (Authorized Use Compliance) of these Terms are breaches of a material obligation. Notwithstanding the foregoing, if we breach a material obligation under a Schedule, and we have not remedied that breach within 30 days after receiving written notice, you are only entitled to terminate the Service or Product covered by such Schedule.
d. Our Additional Termination Rights. We may terminate any Service without any liability if: (i) we decide to cease offering such Service as a generally available service upon reasonable notice; or (ii) any change in Applicable Laws prohibits us or adversely affects our ability to provide the Services or to fulfill our obligations hereunder.
e. Effect of Termination. Termination of the Agreement or a Schedule does not relieve either of us from any liability that accrued before termination became effective. - Property Rights
a. Differ Equipment. The Differ Equipment is at all times and remains our exclusive property or that of our subcontractors, as applicable, wherever located, including on your premises. You or your employees will not, and will not allow anyone else to, reproduce, change, alter or tamper with any serial number or other identifier showing on the Differ Equipment. Upon termination or expiration of the Agreement or Services, you must return the Differ Equipment to us at your expense. You are responsible for the Damage to the Differ Equipment except if the Damage is caused by our negligence or willful misconduct. You need to ensure that the Differ Equipment is stored at all times in a manner and in an environment that conforms to relevant specifications we may provide.
b. Identifiers. Subject to Applicable Laws (including those pertaining to the portability of telephone numbers), you or your End Users have no right, title or interest in or to any network address or identifier such as telephone number, IP address, host name (each an “Identifier”) that we may assign to you or your End Users. We may, on reasonable notice to you, change any Identifier without the obligation to notify any third party of such change.
c. Customer Equipment. The Customer Equipment is at all times and remains your exclusive property or that of the third party from whom you lease, licence or otherwise obtain it.
d. Information. Our respective information, including confidential information, is at all times and remains our respective exclusive property. - Your Additional Obligations
a. Prohibited Use. You are prohibited from reselling, remarketing, transferring or sharing any of the Services or Products.
b. Authorized Use Compliance. You must use the Services and Products in compliance with: (i) Applicable Laws; (ii) the Differ Policies; and (iii) if applicable, any EULA. From time to time, we may establish additional policies, rules and limits concerning use of the Services, and any Products, content, applications or services used in conjunction with the Services. Your use of the Services is subject to these Differ Policies, which are incorporated into these Terms by reference.
c. Customer Equipment/Access to Your Premises. In instances where Customer Equipment, or access to your premises, is required for you to be provided with the Services or Products, you must:
i. unless provided by us under a Schedule, provide all necessary infrastructure (e.g. power and outlets) and ambient environments required for the safe and efficient operation and maintenance of the Differ Equipment on your premises in accordance with the specifications we may provide and all applicable industry standards;
ii. unless provided by us under a Schedule, be responsible for the supply (including obtaining necessary licenses and authorizations), installation and maintenance of Customer Equipment at each site where it is necessary in order to receive the Services;
iii. ensure that Customer Equipment is: (i) installed, maintained, secured and stored in a manner and an environment that conform to the manufacturer’s specifications and any specifications we may provide; and (ii) compatible with the Differ Equipment;
iv. obtain and maintain all third party licenses, authorizations, permissions and consents necessary to permit us to promptly and safely access your premises, so we can perform our obligations and enforce our rights under this Agreement, which includes the installation of the Differ Equipment, a Service or a Product, the access to the Differ Equipment and the repatriation of the Differ Equipment;
v. unless otherwise set forth in a Schedule, be responsible for the preparation of each delivery site for the installation/implementation of a Service or Product.
d. Authorized Persons. The individuals you appoint to act on your behalf for the purposes of this Agreement (each an “Authorized Person”), have authority to order Services and Products, make changes to Services or cancel Services. You are fully liable for all activities performed and decisions made by any of your Authorized Persons in connection with the Services and Products or any other matter in connection with this Agreement. You must notify us promptly in writing of any replacement of any Authorized Person. - Warranty and Disclaimers
a. Services and Products. We perform the Services in a professional and workman-like manner and pass on to you the benefit of any warranties we receive from the Product manufacturer.
b. Risk of Damage. You assume the risks of Damage to any Product that has been delivered to your premises.
c. Disclaimer. Except as expressly stated herein and to the extent permitted by law, the Services and Products are provided without any warranty, express, implied or statutory, including any implied warranty of merchantability or fitness for a particular purpose, non-infringement or any warranty arising from a course of dealing, usage or trade practice. We do not warrant (i) uninterrupted or error-free Services; or (ii) the content, availability, accuracy or any other aspect of any information including all data, files and all other information or content in any form, accessible or made available to or by you or End Users through the use of the Services and Products or via the internet. Furthermore, we are not liable for: (i) any of your acts or omissions or those of your End Users, employees, agents or contractors; (ii) for defamation on your part or on the part of your End Users; (iii) any disruption of any part of the equipment used to provide the Services by third parties; (iv) any infringement of intellectual property rights arising from or in connection with your use of the Products, the Differ Equipment or the Services; (v) any event of Force Majeure; or (vi) any suspension or termination of the Services. - Limitation of Liability
a. Indemnity. You agree to indemnify and hold harmless us from and against any claims, liabilities, losses, damages, costs and expenses (including, without limitation, reasonable legal fees and other litigation expenses) incurred by us arising out of or relating to any: (a) violation, alleged violation or misappropriation of any intellectual property, industrial, contractual, privacy or other rights of a third party; (b) defamation or alleged defamation of a third party; (c) breach of the Agreement; (d) violation of any law or regulation; or (e) negligent, reckless or intentionally wrongful act or omission, by you or any user of your account.
b. EXCLUSION OF INDIRECT AND CONSEQUENTIAL DAMAGES. WE WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOSS OF GOODWILL OR BUSINESS PROFITS, LOST REVENUE, WORK STOPPAGE, LOSS OR CORRUPTION OF DATA, COMPUTER FAILURE, DATA SECURITY BREACH, MALFUNCTION OR ANY LOSSES OR DAMAGES RESULTING FROM THE PURCHASE OR USE OF THE SERVICS.
c. LIMITATION OF LIABILITY. OUR LIABILITY UNDER THE AGREEMENT FOR ANY INDIVIDUAL CLAIM OR FOR ALL CLAIMS IN THE AGGREGATE WILL NOT EXCEED THE TOTAL AMOUNT OF THE FEES PAID BY YOU UNDER THE AGREEMENT OVER THE SIX MONTHS PRECEDING THE CLAIM GIVING RISE TO THE LIABILITY.
d. ALL CLAIMS. THE LIMITATIONS SET FORTH IN SECTION 10b AND SECTION 10c WILL APPLY TO ANY CLAIMS OR DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, OR SERVICES, REGARDLESS OF WHETHER WE WERE INFORMED OR MADE AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND REGARDLESS OF WHETHER SUCH CLAIMS ARE ASSERTED BASED ON CONTRACT, STATUTE, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHER LEGAL OR EQUITABLE CLAIM OR THEORY PROVIDED, EXCEPT IF AND TO THE EXTENT THAT ANY LIMITATION VIOLATES APPLICABLE MANDATORY LAW THAT THE PARTIES CANNOT DEROGATE FROM BY WAY OF CONTRACT.
e. Beneficiaries. Any limitation of liability that applies to us both also applies to our respective employees, directors and affiliates, their employees and directors, the term “Affiliate” having the meaning set out in the Canada Business Corporations Act. - Confidential Information
a. Non-disclosure. Any and all information that is proprietary or confidential in nature and that is disclosed by either of us (the “discloser”) to the other (the “recipient”) concerning the business or affairs of the discloser (including any information, know how, data, patent, copyright, trade secret, process, technique, program, design, formula, marketing, advertising, financial, commercial, sales or programming matters, customer information, written materials, compositions, drawings, diagrams, computer programs, studies, work in progress, visual demonstrations, ideas, concepts, and other data, in oral, written, graphic, electronic, or any other form or medium whatsoever) and the content and existence of the Agreement, needs to be treated as confidential and neither of us will disclose such information, without the prior written consent of the discloser, during the term of the Agreement or at any time thereafter, directly or indirectly, to any individual or legal entity (other than those individuals whose access is necessary to enable the recipient to perform its obligations and exercise its rights under the Agreement).
b. Protection Measures. The recipient must protect the discloser’s confidential information using the same degree of care it normally uses to protect its own proprietary and confidential information, which degree of care will not be less than reasonable and keep it strictly confidential.
c. Exceptions. The above restrictions do not apply if the recipient can demonstrate that the information: (a) is independently developed by the recipient without reference to the discloser’s confidential information; (b) is lawfully received free of restriction from a third party having the right to furnish such information; (c) has become generally available to the public without breach of the Agreement by the recipient; (d) at the time of disclosure, was known to the recipient free of restriction; (e) is subject to an agreement in writing by the discloser to the effect that such information is free of such restrictions; or (f) is legally required to be disclosed provided that the recipient, if not legally prohibited, gives the discloser prompt written notice sufficient to allow the discloser to seek a protective order or other appropriate remedy, and, to the extent practicable, consults with the discloser in an attempt to agree on the form, content, and timing of such disclosure. In the event of a legally compelled disclosure, the recipient may only disclose such confidential information as is required, in the opinion of its counsel, and needs to use commercially reasonable efforts to obtain confidential treatment for any confidential information that is so disclosed.
d. Our Rights under CRTC Decisions and Privacy Laws. Unless you provide express consent or disclosure, all information that we keep on you, other than your name, address and listed telephone number, is confidential and may not be disclosed by us to anyone other than: (i) you; (ii) a person who, in our reasonable judgment, is seeking the information as your agent; (iii) another telephone company, provided the information is required for the efficient and cost-effective provision of telephone service and disclosure is made on a confidential basis with the information to be used only for that purpose; (iv) a company involved in supplying you with telephone or telephone directory related services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose; (v) an agent retained by us in the collection of your account or to perform other administrative functions for us, provided the information is required for and used only for that purpose; (vi) a law enforcement agency whenever we have reasonable grounds to believe that have knowingly supplied us with false or misleading information or are otherwise involved in unlawful activities directed against us; (vii) an agent retained by us to evaluate your creditworthiness, provided the information is required for and is to be used only for that purpose; (viii) a public authority or agent of a public authority, if in our reasonable judgment, it appears that there is imminent danger to life or property that could be avoided or minimized by disclosure of the information. Express consent may be taken to be given by you where you provide: (i) written consent; (ii) oral confirmation by an independent third party; (iii) electronic confirmation through the use of a toll-free number; or (iv) electronic confirmation via the Internet. You consent to us disclosing your information to the CRTC as required for the CRTC to approve any filings related to the Services. Our commitment to protecting customer privacy is outlined in our Privacy Policy, incorporated by reference herein and available at differ.ca/privacy, and subject to change from time to time. Your account information, which may include personal information about your End Users, may be stored or processed in or outside Canada. Such information will be protected with appropriate safeguards but may be subject to the laws of the jurisdiction where it is held.
e. Canada Anti-Spam Legislation Compliance. To the extent that your commercial activities encompass the transmission of electronic messages using our Services, you must strictly comply with Canada’s anti-spam legislation (“CASL”). More specifically, you must comply with sections 6 to 8 of CASL pertaining, among other things, to: (i) the transmission of electronic messages without consent; (ii) the alteration of transmission of electronic messages without express consent (e.g. unwanted redirection or phishing); (iii) the installation of computer programs on another person’s computer without express consent; and (iv) the installation of computer programs that cause an electronic message to be sent (e.g. malware, viruses, and botnets). You will indemnify us and hold us and our Affiliates harmless from any Damage resulting from your failure to comply with CASL. - Miscellaneous
a. Publicity. Neither of you or us may use the name, logo or other identifier of the other in publicity, advertising, press release or other medium, without the prior written consent of the other.
b. Relationship. We both are independent from one another and as such are not in a relationship of principal and agent, partners or joint venturers. Neither of us has the power to obligate or bind the other in any manner whatsoever.
c. Assignment. You may not assign the Agreement or any part of it without our prior written consent. We may assign this Agreement or any of the rights or obligations therein without your consent. If we assign the Agreement or any of its obligations, we will be released from the Agreement or the assigned obligations, as applicable, and the assignee will assume, and be bound by, the Agreement or those obligations, as applicable. If we are subject to a change or acquisition of control, this is not deemed an assignment of the Agreement.
d. Change of Control/Asset Purchase. If you are subject to a change or acquisition of control by a third party or a purchase of all or substantially all of your assets by a third party, this is not deemed an assignment of the Agreement. However, whenever this happens, you need to promptly notify us in writing accordingly, in which case we may proceed with a new credit verification and impose credit limits to you further to such credit verification.
e. No Third Party Beneficiaries. Except as expressly set forth otherwise, the provisions of this Agreement are for our sole mutual benefit, and not for the benefit of any third party.
f. No Waiver. No provision of the Agreement is to be deemed waived by a course of conduct unless such waiver is in writing.
g. Force Majeure. We will not be liable for breach of the Agreement, nor for failure in performance resulting from any cause beyond our control, including, and not limited to: (a) storm, flood, fire, wind, weather, earthquake or other acts of nature or God; (b) lockout, strike or other workforce trouble; (c) epidemic or pandemic; (d) war, rebellion or riot; (e) accident or blackout, or (f) failure of third-party suppliers; or (g) inability to obtain or maintain necessary permissions, authorizations, or permits; or unexpected technical or security issues including a material malfunction of the Network or the Service (“Force Majeure”).
h. Notices. All notices given under the Agreement needs to be in writing and sent by email as follows: (i) to you at the email address set out in the Differ Master Services Agreement; and (ii) to us at support@differ.ca, with a copy to legal.notices@differ.ca. We may each change the email address for notice by promptly notifying the other accordingly.
i. Counterparts. The Agreement may be executed in several counterparts, each of which so executed is deemed to be an original, and such counterparts together constitute one and the same instrument.
j. Electronic Delivery Policy, and Customer Consent, and Notices. You may choose to receive a copy of your Agreement and related documents in paper or electronic copy at any time during the Term, and we will deliver the copy to you in accordance with the Internet Code. You consent to receive all other updates, disclosures, Policies, notices, and other Service-related information (“Notices”) provided by us via paper and/or electronic delivery at our sole discretion. We may deliver or display Notices to you by email or pop-up window, or by posting a message on the Service or our website. You may receive periodic texts, emails, or other communications from us, such as Notices regarding expiration of your account and changes to these Terms. You agree to review and to familiarize yourself with all Notices, and we are not liable for any damage or detriment to you or your property resulting from your failure to do so. Your continued use of any Service following delivery of any such Notice means that you accept and agree to comply with such information, as applicable.
k. Survival. The provisions of these Terms that are by their nature intended to survive termination of the Agreement, shall survive such termination for the maximum period allowable by law.
l. Severability. If any term of this Agreement is to any extent invalid, illegal, or incapable of being enforced, such term shall be excluded to the extent of such invalidity, illegality, or unenforceability. All other terms hereof shall remain in full force and effect.
m. Binding Effect. No legally binding obligation is created until you have signed and delivered the Agreement to us and we have executed the Agreement and returned one copy to you.
n. Language. The parties have required that the Agreement and all documents relating thereto to be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.
END OF THE BUSINESS TERMS OF SERVICE