Differ Communications Limited (“we”, “us”, “our”) is pleased to welcome you as a customer. Before we get started, please take the time to read this document very carefully. It contains important information and sets out the legal terms and conditions (“Terms of Service”) that apply to your purchase and use of our internet and ancillary services (“Service”), plus any modem, equipment, or accessories (including related specifications and instructions) which we supply to you in connection with the Service (“Starter Kit”).
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.
1.1 Order Form.
Your order for the Service will take effect and will be binding on you when: (a) you submit your online order, and it is accepted by us; (b) your telephone order is confirmed by us by email or other form; or (c) you execute an order provided to you in hard copy paper form which is returned to and accepted by us, whichever occurs first. Regardless of the method that you use to sign up for the Service, you will be provided with a form that sets out details including your contact information, a description of the Service, where and when the Service will be supplied, and the applicable fees and charges (“Order Form”).
1.2 Acceptable Use Policy.
From time to time, we may establish additional policies, rules and limits (“Policies”) concerning use of the Service, and any products, content, applications or services used in conjunction with the Service. Your use of the Service is subject to these Policies, which are incorporated into these Terms of Service by reference.
The Order Form, Terms of Service, Acceptable Use Policy and any other Policies incorporated by reference together form your contract for the Service (“Agreement”). As a condition of using the Service, you agree to and must comply with the Agreement. The Agreement constitutes a binding contract with respect to the provision of the Service and is binding on you and us.
Unless otherwise set out in your Agreement, there is no minimum commitment period for the Service. The Agreement will start on the date that the Service is ordered under Section 1.1 and will end on the date that the Service is cancelled under Section 10.1, or the Agreement is terminated under Section 10.2 (“Term”).
1.6 Compliance with Agreement.
You must ensure that any person who uses the Service under your account or with your authorization complies with the Agreement. You acknowledge that the acts or omissions of all persons who use the Service under your account or with your authorization will be treated for all purposes as your acts or omissions, and you will be liable for any charges or fees incurred by the use of the Service by anyone else.
If there is any inconsistency between the documents that make up your Agreement, the Terms of Service will prevail, followed by the Order Form, Acceptable Use Policy, and any other documents incorporated by reference.
You should keep copies of the Agreement and any sales receipt or other materials relevant to your purchase of the Starter Kit and Service for your records.
2.1 Service Fees.
The fees and charges applicable to the Service and the Starter Kit are set out in your Order Form (“Service Fees”). Unless otherwise specified in your Order Form, the Service Fees do not include upgrades in wiring, cabling, routers, or additional equipment needed for your property to be readied for the Service or installation of the Starter Kit.
2.2 Taxes, Fees, Surcharges.
In addition to the Service Fees, we may collect or request reimbursement for taxes and other fees and surcharges required by law. You are responsible for any additional government fees, license or permit fees, and any other duties, fees, charges or surcharges imposed on, incident to, or based upon the provision, sale, or use of the Service or the Starter Kit.
2.3 Discounted Service.
We may offer discounted Service Fees (“Discounted Service”) to you or other persons. We may start and cease offering the Discounted Service or may change the terms, including the eligibility criteria for the Discounted Service, at any time. If we discontinue the Discounted Service, standard pricing will apply to your Service for subsequent billing cycles.
2.4 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 Service.
The Service Fees are due and payable in full from the date of your invoice. You authorize us to charge your approved payment method for: (a) a one-time connection charge for the Starter Kit, including shipping and handling and applicable taxes; and (b) monthly recurring charges in advance, including applicable taxes, for the Service selected in your Order Form, starting from the date of activation of the Service (on a pro-rata basis) and on the first day of each month thereafter until cancellation or termination of the Service under these Terms of Service.
2.6 Approved Payment Method.
You authorize us to set up automatic bill payments using the approved payment method set out in your Order Form (either electronic funds transfer, credit or debit card). Use of a credit or debit card is subject to the terms and conditions in your card holder agreement, including any fees that may be charged by the card issuer.
2.7 Changes to Payment Method.
It is your responsibility to ensure that the credit card or financial institution account information that you provide to us remains valid and current and that we are able to continue charging or debiting it to pay for the Service. If there is a change to your bank or card account information, including expiration date, you must update your payment information via your account portal on our website to enable is to process your payments, and to avoid any suspension or termination of the Service or additional charges. We may also update your payment method data with information provided by the payment service providers. You authorize us to continue to charge your payment method following any update to your information.
2.8 Receipts and Invoices.
We will send invoices and payment receipts to the email account specified in your Order Form.
2.9 Billing Disputes.
You must contact our customer support team in accordance with Section 11.1 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.
2.10 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 Canadian Radio-television Telecommunications Commission’s (“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.
You understand and agree that we may use interconnected telecommunications equipment, services, facilities, or cabling owned by third parties to provide the Service (“Network”). We may, in our sole discretion and without your consent, migrate the Service to another Network or change our suppliers, as and when it becomes necessary. You expressly agree that any such migration or change does not constitute amendment or material change to the Service or the Agreement.
The Service is available only in those areas to which the Network extends and where the Service has been rolled out by us. Service availability is also subject to the availability of appropriate facilities and is dependent on the availability of suitable technology at the property at which you wish to obtain the Service.
3.3 Activation Date.
We cannot guarantee the Service will be activated by a specific date. We will strive to activate the Service by the estimated activation date set out in your Order Form, however, delays can occur due to external factors, including your availability, the Network, or the acts of third-party suppliers. We will not be liable to you or to any third party for any claims, damages, losses or expenses if the Service is not installed or activated on the estimated activation date.
3.4 Access to Property.
You authorize us and our representatives to enter or have access to your property as necessary to install, access, improve, repair, remove, and disconnect the Service, the Starter Pack or the Network. We will advise you in advance of the date and approximate timeframe that our technician will attend to activate the Service. If no one is at the property, or access is refused for any reason, we may charge you a reasonable administrative charge to cover our costs incurred in relation to the unsuccessful activation.
4.5 Demarcation Point.
We will install the Service up to the location in your property where external wiring feeds terminate and connect with inside wiring owned by you (“Demarcation Point”). We are not responsible for any wiring beyond the Demarcation Point, and any additional wiring or termination of circuits required beyond the Demarcation Point is your sole responsibility. If wiring work is required, upon written request from you we may arrange a technician to perform such work, and the associated costs will be included in a subsequent invoice or directly charged by our authorised technician.
4.6 Service Speed.
Service speed depends on advertised upload/download speeds listed on our website. We cannot guarantee the speed of your connection as Service speeds vary on external factors outside of our control.
4.1 Supply of Starter Kit.
The Starter Kit will be shipped to you at the address set out on your Order Form. It shall be deemed to have been delivered in good working condition unless you give us notice to the contrary within 5 days of receiving the Starter Kit.
The Starter Kit is owned by us and remains our property at all times. You may not sell, lease, mortgage, transfer, assign or encumber the Starter Kit. At the end of the Term, you must return the Starter Kit to us in good working condition in accordance with Section 10.3.
4.3 Starter Kit Set-Up.
You are responsible for setting up the Starter Kit in accordance with the specifications and instructions provided. We assume no liability for any damage or losses caused by your failure to install the Starter Kit in accordance with the applicable specifications and instructions. If set-up support is required, upon written request from you we may arrange a technician to set-up the Starter Kit, and the associated costs will be included in a subsequent invoice or directly charged by our authorised technician.
4.4 Loss or Damage to Starter Kit.
You must take reasonable care and implement any necessary measures to secure and protect the Starter Kit. If your Starter Kit is lost, stolen, damaged, destroyed or otherwise removed from your property, you must immediately contact our customer support team in accordance with Section 11.1, or you may be liable for payment for unauthorized use of the Service. You will be charged an additional fee to replace the Starter Kit, including shipping and handling, and applicable taxes.
4.5 Modifications to Starter Kit.
You must use the Starter Kit in compliance with the applicable specifications and instructions, manufacturer’s standards and applicable laws. Unless you have our prior consent, you must not modify, disassemble, reconfigure or alter any components, software, firmware or any other piece of the Starter Kit. Modifications may hinder the functioning of Starter Kit and, if they prevent or alter the capacity of the Starter Kit, you will be charged for any necessary repairs. If the Starter Kit is unrepairable, you will be charged the full cost of that Starter Kit, less any connection charge paid by you for the Starter Kit.
4.6 Limited Remedies.
Subject to Sections 4.3, 4.4 and 4.5, if the Starter Kit fails to work in accordance with the specifications and instructions provided, and we receive a valid, detailed, written warranty claim from you within twelve (12) months from the date of receipt of the Starter Kit (“Warranty Period”), we will either replace or repair your Starter Kit with a new, different or refurbished item or part, which will be covered for the greater of three (3) months or the remainder of the original Warranty Period. Normal wear and tear or deterioration, or superficial defects, dents, or marks that do not impact performance of the Starter Kit are not covered by the warranty set out in this Section 4.6. The limited remedies prescribed in this Section 4.6 are your sole and exclusive remedies in case of any defects or deficiencies with the Starter Kit.
4.7 Additional Equipment.
We may give you the option of purchasing or renting additional equipment from us. Any equipment purchased or rented will be subject to additional terms and conditions agreed by you and us.
5.1 Software Updates and License Terms.
Software copies and updates installed on the Starter Kit are licensed to you on a non-exclusive, non-transferable, limited and revocable basis, for use as installed on the Starter Kit and subject to any applicable software end-user license agreement (“EULA”). A copy of the applicable EULA will may be included with the Starter Kit or presented during the installation process, and you must review and agree to the terms and conditions of the EULA before using the software. You must download and install upgrades, patches or more recent versions of any applicable software upon our request. Unless otherwise agreed, the EULA will end when the Service is cancelled, or the Agreement terminated. We reserve all intellectual property rights and other rights and interests in the Starter Kit, the Service, and the software, and grant no license, except as expressly granted in these Terms of Service.
We are not responsible configuring other system software or equipment on your property, nor any device including mobile phones, laptops or personal computers (“Device”). You are responsible for ensuring that your Device meets minimum system requirements for the Service. If your Device does not meet these requirements, we are not responsible for any connection challenges experienced.
5.3 Third Party Software.
Other than software contained in the Starter Kit, you are responsible for acquiring and maintaining any software required to make use of the Service. We cannot provide warranties for internet, email, or other connection software you run on your Device and assume no responsibility for damages resulting from the use of such software. We recommend that you back up all existing files by copying them to another storage medium prior to the installation of the Starter Kit and any software required for the Service.
6.1 Changes to Contact Details.
You must notify us of any changes to your name or contact details including your mailing address, telephone number, or email address.
6.2 Changes to the Service.
We may change the Service, Starter Kit or Service Fees, or any terms and conditions set out in the Agreement, from time to time. We will seek your consent before making any such change where required by the CRTC’s Internet Code. Otherwise, we will provide you with at least sixty (60) days’ notice of these changes in writing before they come into effect and, by continuing to use the Service after the changes come into effect, you agree to them.
Except as otherwise set out in these Terms of Service, we provide the Starter Kit and Service on an “as is” basis. We disclaim all warranties, conditions and representations including any implied warranty or condition of merchantability, fitness for a particular purpose, and non-infringement.
7.2 No Warranty.
We do not make any warranty, representation, or guarantee of any nature regarding the Service or the Starter Kit, either express or implied, including those relating to: (a) Network transmission capacity; (b) the fault tolerance of the Service or its suitability for high risk activities; (c) the security of any content or transaction passing over the Network; (d) any information obtained using the Service; or (e) the reliability and compatibility of our facilities or equipment, or software of third parties, which may be used by us to provide the Service, or by you in using the Service. You acknowledge that the Service is not suited or intended as a mission-critical or safety-of-life service.
7.3 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”).
8.1 Calculation of Service Rebates.
You must contact our customer support team in accordance with Section 11.1 to report a failure, breakdown or unavailability of the Service (“Outage”). Subject to Sections 8.3 and 8.4, if the Service suffers a continuous Outage for more than a period of 24 hours after you notify us, you may claim a rebate equal to 1/30th of the monthly recurring Service Fees paid for the affected Service for every full 24-hour period during which the Service Outage remains (“Service Rebate”). Service Rebates will not apply to any one-off, non-recurring or usage charges and will not exceed the total average monthly charges applicable to the affected Service.
8.2 Claim Request.
You must request any Service Rebate to which you are eligible within thirty (30) days of any Outage, after which you are deemed to have waived your right to claim a Service Rebate for that Outage. We will, in our sole and absolute discretion, determine if a failure, breakdown or unavailability of the Service is considered a valid Outage.
We are not responsible any Outage of the Service, or any Network used to provide the Service, resulting from: (a) repair of the Starter Kit or connection of the Service by anyone other than us or our authorized agent; (b) planned or emergency maintenance on the Service or the Network; (c) problems with your electrical power; (d) the failure of any component, equipment, wiring, network or system provided by you or a third party outside of our control; (e) use of the Service in combination with Devices not provided or approved by us; (f) acts or omissions, negligent or otherwise, by you or third-party; or (g) your breach of the Agreement (“Excluded Events”).
8.4 Sole Remedy.
Service Rebates are your sole and exclusive remedy for any Service Outage and multiples resolutions will not be provided for a single Service Outage. Service Rebates are not payable where the Outage results from an Excluded Event or Force Majeure set out in Sections 8.3 and 7.3, or if your account is in arrears.
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.
9.2 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 SERVICE OR THE STARTER KIT.
9.3 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 SERVICE FEES PAID BY YOU UNDER THE AGREEMENT OVER THE SIX MONTHS PRECEDING THE CLAIM GIVING RISE TO THE LIABILITY.
9.4 ALL CLAIMS.
THE LIMITATIONS SET FORTH IN SECTIONS 9.2 AND 9.3 WILL APPLY TO ANY CLAIMS OR DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, SERVICE OR STARTER KIT, 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.
10.1 Service Cancellation.
You may cancel the Service at any time by contacting our customer support team in accordance with Section 11.1. To the extent permitted by applicable law and CRTC’s Internet Code, we may cancel the Service with at least thirty (30) days’ prior written notice to you. Following cancellation of the Service, we will issue to you a pro-rated refund of any Service Fees paid in advance for the Service calculated from the date of cancellation.
10.3 Starter Kit Return.
If the Service is cancelled under Section 10.1 or this Agreement is terminated under Section 10.2, you will forfeit any and all rights to the Starter Kit and the Service. The Starter Kit must be returned to us in good working order within thirty (30) days from the date of termination or cancellation, including all components, original cables and power adapters. If you fail to return the Starter Kit in good working condition within thirty (30) days, or if it is damaged in any way and unable to be repurposed, you will be charged the full cost of that Starter Kit, less any connection charge paid by you for the Starter Kit.
11.1 Customer Support.
Customer support is available by contacting us on 1-855-5-DIFFER and follow the prompts for support or via email@example.com. You can also contact our Customer Support Team by creating a service ticket through your account portal if you have any questions, comments or complaints. You acknowledge and agree that any customer support provided over the phone may be recorded for training and quality purposes.
11.2 Technical Support.
Questions and problems arising from the installation, operation and use of software and hardware not supplied by us, other than in relation to basic connectivity to the Service through supported software on systems meeting the minimum system requirements, are outside the scope of our technical support. Out-of-scope support may be provided in our sole discretion and may involve referral to third party suppliers or websites. We shall not be liable for such referrals, or any technical support provided by a third party, and disclaim liability for any damages arising.
If you have a complaint about the Service, the Starter Kit or your Agreement, you must first try to resolve it directly with us. We want to resolve your complaint quickly and fairly and will work with you in good faith to do so.
11.4 CCTS Referral.
If you have contacted us and have been unable to reach a satisfactory resolution, the Commission for Complaints for Telecom-television Services (“CCTS”) may be able to help you. CCTS is an independent agency whose mandate is to resolve complaints of consumers about their telecommunications services, free of charge. To learn more about CCTS, you can visit its website at www.ccts-cprst.ca or call toll-free at 1-888-221-1687.
11.5 Dispute Resolution.
If your complaint has not been resolved within 60 days of advising us, you may initiate legal proceedings. 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.
11.6 Governing Law.
These Agreement and any disputes between us 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.
You must comply with all laws and regulations applicable or related to the performance of your obligations under this Agreement.
12.2 Entire Agreement.
The Agreement, as amended from time to time, constitutes the entire agreement and understanding between you and us for the Service and supersedes all prior agreements written or oral, with respect to the same subject matter.
The provisions of these Terms of Service that are by their nature intended to survive termination of the Agreement, shall survive such termination including Sections 2.9, 2.10, 5.1, 7.1, 7.2, 8, 9, 10.3, 11.5, 11.6 and 12.4.
12.5 Electronic Delivery Policy, 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 of Service. 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.
We may assign our rights and obligations under the Agreement without your consent. You may not assign or transfer the Agreement without our prior consent.
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.
12.8 No Waiver.
No waiver of any breach of the Agreement will be a waiver of any preceding or succeeding breach. No waiver by us of any right under the Agreement will be construed as a waiver of any other right and we are not required to give notice to enforce strict adherence of the Agreement. A waiver must be provided in writing by our authorized representative to be effective.
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.