YOU MUST READ AND ACCEPT THESE TERMS AND CONDITIONS OF USE BEFORE USING THIS erITE OR SUBSCRIBING TO THE SERVICE. THESE TERMS AND CONDITIONS OF USE CREATE AN AGREEMENT BETWEEN YOU AND THE SERVICE PROVIDER EYESURF CORPORATION THESE TERMS AND CONDITIONS OF USE GOVERN YOUR USE OF THIS INTERNET SITE AND THE TELECOMMUNICATIONS AND/ OR LONG DISTANCE AND INTERNET PRODUCTS AND SERVICES OFFERED. EACH TIME YOU USE THIS SITE OR THE SERVICE, YOU ACKNOWLEDGE AND SIGNIFY THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS OF USE. THESE TERMS AND CONDITIONS MAY BE UPDATED AND CHANGED WITHOUT NOTICE TO YOU. THIS SECTION OUTLINES CONDITIONS APPLICABLE TO ALL SERVICES.

1. Use of the Site and the Service

The Site and the Service may be used only by persons who have reached the age of majority and who can form legally binding contracts under applicable law. If you are under the legal age of majority in the jurisdiction in which you live and wish to subscribe to the Service, please have a parent or legal guardian subscribe to the Service on your behalf. Eyesurf reserves the right to suspend or terminate your account if you provide incomplete or inaccurate information at the time of registration or any time thereafter. You agree: (i) not to do anything to interfere with other users of the Service, (ii) not to impersonate any person or otherwise misrepresent your affiliation with a person or entity when using the Service, (iii) not to use the Service in a manner which is a criminal offense or violate the rights of any party, (iv) not to use the Service to send unsolicited messages, and (v) not to use the Service for any unlawful, libelous, defamatory, slanderous, obscene, pornographic, indecent, lewd, harassing, threatening, harmful, abusive, inflammatory or otherwise harmful purpose.

2. Limitation of Liability

Eyesurf exercises no control whatsoever over the content that passes over Eyesurf’s network. Use of any information obtained via Eyesurf, is at User’s risk. Neither Eyesurf, nor any of its affiliates, its licensers, its contractors or their respective employees warrant that the Service will be uninterrupted, like all other ISP’s.

3. Subscription Term

Services are offered on a month-to-month subscription basis. The Service shall be deemed to begin on the date on which Eyesurf activates your Service and shall end on the end of the month. Unless otherwise stated by you, your subscription will automatically renew without further action by you unless you provide Eyesurf with notice as per the Right to Cancel section. A change of address is subject to a $39.95 re-activation fee. Extra installation charges may apply in unusual circumstances. These fees are in addition to the regular service fees.

4. Fees – All Services

4.1. The fees and charges for each Service shall be set out in the description of each Service or bundled Services at www.eyesurf.net

4.2. Additional charges that may apply to Services, which may include access fees or activation fees, shall be listed at www.eyesurf.net

4.3. Eyesurf reserves the right to change fees without notice to you. Your continued use of the Service after a change in fees shall constitute your acceptance of such change in fees.

4.4. All fees and charges shall be charged to you monthly and paid in accordance with your payment methods set up in your Customer Account.

4.5. Charges for the Services are non-refundable. If Customer pays on a monthly basis or on an annual basis, and terminates the Service prior to the completion of the month or the year, as the case may be, there will be no refunds of amounts already paid.

4.6. Your invoices and receipts will be sent to the email account that you provided during sign-up. If you do not have an email account, please call Technical Support to get assistance in setting up a Gmail account

4.7. In the event that Eyesurf is unable to collect payment for any reason, Eyesurf will suspend your access to the Services until payment has been successfully processed, including any outstanding amounts incurred while your service was suspended. Suspended accounts are subject to a re-activation fee of $39.95

4.8. Eyesurf reserves the right to terminate your access to Services if your balance is outstanding for over 10 days, and you have not demonstrated any effort or intentions of resolving your balance (determined at Eyesurf’s discretion). Eyesurf will use its best efforts to provide at least three (3) business days notice of its intent to disconnect access to the Services.

4.9. Any underbilled or unbilled Charge shall be payable by Customer when correctly billed. Eyesurf may bill for Charges up to one (1) year from the date the Charge was incurred.

4.10. Fees – Credit Card Payments

4.10.1. If your credit card expires, your billing address changes, or the card is cancelled and replaced as a result of loss or theft, you must advise Eyesurf at once.

4.10.2. You must notify Eyesurf in writing within ten (10) days of your credit card statement, if you dispute any of Eyesurf’s charges on that statement or such dispute will be deemed waived. Billing disputes should be directed to: [email protected]

4.10.3. Your initial use of the Service authorizes Eyesurf to charge the credit card account number on file with Eyesurf for fees and taxes. This authorization will remain valid until sixty (60) days after you provide Eyesurf with notice of your intention to terminate your subscription to the Service.

4.10.4. In the event that a credit card payment fails, an administrative charge of $5.00 will apply.

4.10.5. In the event that a chargeback is initiated, Eyesurf reserves the right to charge a $35.00 fee to cover the administrative and processing costs of the chargeback. If the chargeback is deemed invalid, Eyesurf reverses the right to dispute and reverse the chargeback. Additionally, Eyesurf reserves the right to suspend access to Services if the chargeback puts the Customer’s account in a delinquent state

4.10.6. In the event that your account is suspended or deactivated due to non-payment, Eyesurf reserves the right to charge the credit card account number on file for the balance owing, including applicable taxes.

4.11. Fees – Preauthorized Debit

4.11.1. By default, PAD payments are processed on the 5th and 15th of the month. In the event that either of these days fall on a Holiday, please allow up to two (2) business days for processing.

4.11.2. In the event that a PAD payment fails, an NSF fee of $20.00 will apply

4.11.3. Your use of PAD payments indicates your agreement with the terms outlined in the signed Eyesurf PAD agreement

4.11.4. PAD payments are automated through Canadian Financial Institutions. If you are unable to make regular payments on the 5th of the payment, please call Eyesurf Billing to arrange alternate payment methods.

4.12. Fees – Networking Fees

4.12.1. In some rurual areas, additional networking fees may apply for our DSL services. These networking fees range from $5/month – $25.00/month depending on how far the Customer’s location is from the serving equipment. The Customer will be notified of any such networking fees prior to service activation, at which point the Customer may choose to continue with activation or cancel services, and request a full refund

5. Accuracy of Information on the Site

Eyesurf strives to provide you with up-to-date and accurate information. However in the event that a misprint or another error does occur, Eyesurf reserves the right correct such misprint or other error, without liability to Eyesurf.

6. Termination of use of Site and Service

6.1. Eyesurf reserves the right, at any time and for any reason, in its discretion, to restrict or terminate your access to the Site and Service at anytime without notice to you. Eyesurf reserves the right to restrict or terminate Service if payment is overdue or if Service is abused. The following list sets out what is deemed abuse: (i) using the Service for telemarketing purposes, (ii) using the Service for crank calling or prank calling purposes, (iii) using the Service for autodialing, modem or faxing (including, fax broadcasting and fax blasting) and/or (iv) using the Service in a manner which is inconsistent with normal expected residential use of the Service.

6.2. In some cases, Eyesurf reserves the right to terminate your access to the Service by providing you with ten (10) days notice. In such an event, Eyesurf may at its discretion refund to you a pro-rated amount of any prepaid amounts received from you based on the number of full months remaining in your prepaid term.

7. Right to Cancel

7.1. The Customer may discontinue their Eyesurf Service at any time for any reason with proper notice as defined below: (i) Cancellation requests must be via telephone (ii) In the case of a monthly subscription, the Customer should use their best efforts to notify Eyesurf and provide a minimum of 10 business days notice to Eyesurf. Account cancellations will occur at the end of the current billing cycle (iii) Cancellations receive no refunds where service has been delivered.

7.2. Customer agrees that services will be disconnected at any time on the disconnection date, not necessarily at the end of the day. If the requested date for cancellation falls on a weekend or Holiday, the earliest business day prior will be the date of disconnection.

8. Privacy

Please see our privacy policy. By accepting these Terms and Conditions of Use, you consent to our collection and use, of your personal information in accordance with Eyesurf’s Privacy Policy without any further notice or any liability to you or any other person.

9. Site and Services are Provided “As Is” and “when available”:

The Site and the Service are provided on an “as is” and “when available” basis, and without any representations of any kind. The operation of the Site and the Service may be affected by numerous factors beyond the control of Eyesurf. Security and privacy risks cannot be eliminated. We reserve the right to restrict destinations deemed to result fraudulent abuse of our network. These areas include but are not limited to 712-432-XXXX, 712-338-7XXX, 712-338-8XXX, 212-444-XXXX, 212-990-XXXX, 212-461-XXXX, 218-862-XXXX, 218-339-XXXX, 218-486-XXXX, 218-548-XXXX, 218-844-XXXX 218-936-XXXX, 218-585-XXXX, 347-677-XXXX.

10. Waiver of Damages and Limitation of Liability

Eyesurf does not guarantee error-free or uninterrupted operation of the services nor shall it be liable for any failure, breakdown, interruption or degradation in a service or in the network or any other network or connection involved in the provision or use of services whatever the cause of such failure, breakdown, degradation or interruption and however long it lasts. Neither Eyesurf nor any of its affiliates, employees, agents or representatives makes any warranties, representations, conditions or guarantees of any nature whatsoever regarding any service, product or Eyesurf facilities provided by Eyesurf to the customer, either express or implied, including, without limitation, those relating to: (i) Fitness for a particular purpose or merchantability with respect to the services; (ii) Network transmission capacity; (iii) The security of any transaction; (iv) The fault tolerance of the services or the suitability of same for high risk activities; or (v) The reliability or compatibility of the Eyesurf facilities and equipment or software of third parties which may be utilized by Eyesurf in providing, or by the customer in using, the services, and all warranties, representations and conditions, express or implied, are, to the extent permitted by applicable law, hereby excluded. The customer acknowledges that is has not relied upon any representation, warranty, condition or guarantee made by Eyesurf.

11. User Information

Unless required by court order Eyesurf will not publish User’s name and will not make such information available to third parties.

12. Non-transferable

The right to use the Service is not transferable.

13. Intellectual Property Notices

Copyright © 2010 Eyesurf Corporation, Eyesurf at Box 48024 Williamsburg Plaza, Kitchener ON N2E 4H0 rights reserved.

14. Intellectual Property Notices

14.1. The Site, the Service and all information and content, images, icons, software, design, applications and other elements available on or through the Site and provided in connection with the Service are the property of Eyesurf Corporation, and others, and are protected by Canadian and international copyright, trade-mark, and other laws. Your use of the Site and the Service does not transfer to you any ownership or other rights in the Site or its content or the Service. “Eyesurf”, together with all associated graphics, logos, and slogans, is a trade-mark of Eyesurf Corporation , and may not be used or reproduced without Eyesurf Corporation’s express prior written permission.

14.2. Other product and company names and logos appearing on the Site may be registered or unregistered trade-names, trade-marks and service-marks of their respective owners. Any use of the trade-names, trade-marks, service-marks and logos (collectively “Marks”) displayed on the Site is strictly prohibited. Nothing appearing on the Site or elsewhere shall be construed as granting by implication, estoppel or otherwise, any license or right to use any Marks displayed on the Site.

15. Governing Law

These Terms and Conditions of Use, your use of the Site and the Services and all related matters are governed solely by the laws of the Province of Ontario and applicable federal laws of Canada.

16. Force Majeure

Neither party shall be liable for any breach of these Terms and Conditions of Use or for any failure in performance resulting from any cause beyond such party’s reasonable control, including, without limitation, fire, flood, storm, strike, lockout or other labour trouble, riot, war, rebellion, accident, blackout, other acts of God or any failure of third party suppliers.

17. Contact Information and Notice

If you have any questions regarding these Terms and Conditions of Use or the Site generally, please contact Eyesurf Support; Phone: 519-804-SURF, or Email: [email protected]

18. Failure to Comply With Terms and Conditions

Eyesurf may deny User access to all or part of the Service without notice if User engages in any conduct or activities that Eyesurf, in its sole discretion believes violates any of the terms and conditions in this Agreement.

19. Shipping and Handling

Unless otherwise specifically stated, the cost of shipping is not included with any orders or returns. The Customer agrees to pay for all shipping and handling of equipment in addition to any fee or charge for the Service. Unless otherwise stated, shipping is $10.00.

20. Miscellaneous

20.1. Customer agrees to notify Eyesurf, if User moves or otherwise changes his or her mailing address or phone number, and to list a truthful name, postal address and telephone number User supplies to Eyesurf.

20.2. Accounts are created upon receipt of payment. Billing period starts upon service installation date. Eyesurf bills one month in advance, except for per-minute long distance usage, which is billed on the first of the next month. Services require payment via credit card only. Call us at 519-804-SURF (7873) to see if other payment methods can be arranged. The Customer is responsible for updating any information on his/her Eyesurf account

21. Eyesurf Long Distance Terms

21.1. You agree to indemnify and hold harmless Eyesurf and its alliance partners for any charges or penalties as a result using the service improperly i.e. calling long distance to the access number for any service. You may access and make use of the Services solely for your own personal, residential use. The Service is to be used for voice only purposes. You may not resell or transfer the Service to any other person for any purpose, or charge any other person for the use of the Service. The Service does not support: (i) “011” calling, except where specified on the rates page (www.eyesurf.net/rates.php), (ii) “1-900”, “1-976” number calling or (iii) “311”, “411”, or other x11 services in any service areas, with the exception of 911 (iv) operator assistance calling.

22. Eyesurf High Speed Internet

22.1. Prohibited Uses:

22.1.1. The Customer may not Send Spam when dialed into the network. The following types of E-mail sent constitute as Spam:

  • 22.1.1.1. Forged E-mails To/From address other than from the actual sender or to the actual recipient.
  • 22.1.1.2. Message subject not related to the E-mail body.
  • 22.1.1.3. E-mail not requested by the recipient.
  • 22.1.1.4. E-mails sent in bulk by sender.
  • 22.1.1.5. Mail bombs.

22.1.2. Post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane, or otherwise objectionable information which contains a virus, cancelbot, Trojan horse, worm or other harmful component.

22.1.3. Allow Users to run Maillist, Listserv or any form of auto-responds from The Customer’s account;

22.1.4. Unauthorized Use of Relay Servers. The Customer agrees that any unauthorized use of any E-mail server located throughout the Internet for the purposes of relaying or distributing messages is prohibited.

22.1.5. Fraudulent Addressing. The Customer agrees that the purposeful distribution of any E-mail message where the return address, originator’s address, or any other identifiable aspect of the message has been purposefully altered is prohibited. The Customer may not purposefully misrepresent the origination information of any E-mail messages sent while using the Eyesurf Service.

22.2. Installation

22.2.1. Eyesurf shall use reasonable efforts to deliver and install the High Speed Internet Service by the estimated activation date. However, delays may occur due to such factors as the Customer’s availability or the acts or omissions of third party suppliers or providers. Eyesurf does not guarantee that Services shall be delivered and installed by a specific activation date.

22.2.2. The Customer demarcation point for the High Speed Services shall be a standard location where all external wiring feeds terminate and connect with inside wiring owned by the Customer. High Speed Internet Services shall be installed up to the Customer demarcation point.

22.2.3. Eyesurf shall not be responsible for any equipment or wiring beyond the demarcation point, save and except for Eyesurf’ customer premise equipment, such as the Eyesurf supplied modem.

22.2.4. Eyesurf shall not be responsible for configuration of customer premise equipment (CPE) above and beyond the standard configuration, nor shall Eyesurf be responsible for configuration of customer-owned devices (CPE, Laptops, PCs, etc.) as Eyesurf does not

22.2.5. Any additional wiring or termination of circuits past the Customer demarcation point shall be the Customer’s sole responsibility. In the event the Customer requests wiring or other work to be performed by Eyesurf, such work will be performed by a Eyesurf authorized installer, and will be billed directly to the customer by the Eyesurf authorized installer.

22.3. Service Interruption Credits

22.3.1. If Services are interrupted for a period of at least 24 hours after notice by the Customer to Eyesurf, an allowance equal to 1/30th of any fixed billing cycle charges for the affected Service shall apply to each full 24 hour period during which the interruption continues. Credit in any billing period shall not exceed the total average monthly charges for that period for the affected Service. No allowance shall apply to any non-recurring or usage charges. The Customer’s sole and exclusive remedy for Service interruption shall be the credit outlined above

22.3.2. The Customer must request credit within thirty (30) days of the validated interruption, failing which the Customer forever waives its right to any credit for such outage. Eyesurf reserves the right to determine in its sole and absolute discretion if an interruption is considered a validated interruption.

22.3.3. At no time will multiple remedies be provided to the Customer for same, similar or related troubles on the same line. Customer payables must be current prior to the Customer receiving any credits

22.3.4. No credit shall be provided for interruptions due to the following:

  • 22.3.4.1. the failure of any component, equipment, wiring, network or system provided by the Customer or a third party;
  • 22.3.4.2. network maintenance by Eyesurf;
  • 22.3.4.3. Force Majeure events;
  • 22.3.4.4. acts or omissions, negligent or otherwise, of the Customer or a third party, or any breach of any term or condition by the Customer of the Master Services Agreement or any schedules or addenda attached thereto.

22.4. ITMP

Eyesurf Fair Share Policy strives to provide its customers with a better Internet experience for everyone.

Eyesurf, like many Internet providers in Canada, may from time to time be required to manage its network so that no application, service or user consumes more than their Fair Share of bandwidth which may impede the use and enjoyment of other users.

Eyesurf’s Fair Share Policy is set out to improve every user’s online experience. For example, improved performance can be noted with: ‘Real-Time’ Browser Applications, Email Applications, Instant Messaging (IM), Online Gaming, Internet Radio, Streaming Video from Youtube, Netflix etc., as well, ‘client-server’ download services like iTunes, Mac Software Updates and Microsoft Windows Updates to name a few.

Eyesurf is working hard to provide a better Internet experience for all Canadians. Fair Share dynamically modifies policies to balance available bandwidth and resources so valued customers get better Internet service – at all times.

Fair Share automatically responds to the changing network environment and subscriber usage patterns in real-time to ensure customers are always getting the fastest speeds possible. During peak times (4:30 P.M. to 2 A.M. EST.), customers may experience extended download or upload times when using Peer-to-Peer (P2P) file sharing, bulk transfers, operating system updates and application updates. Also, the quality of Real Time Entertainment (Netflix, YouTube, Flash Video, etc.) may be impacted when households are running many videos at the same time. Outside of this period, normal speeds can be expected. End-users may consider running these applications longer to complete their activities. Users may also want to consider using these applications or performing updates during the off-peak periods when there is no scheduled traffic management.

The Fair Share Policy is in place to ensure the best quality of Internet is available to the maximum number of users. Eyesurf will update this policy as required from time to time.

23. Eyesurf VIP Home Phone Service

23.1. Service Availability

Customer may qualify for the VIP Home Phone Services, depending on his/her location. Qualification for the VIP Home Phone Services must be verified by contacting Eyesurf Customer Service and receiving confirmation of VIP Home Phone Service availability for Customer’s location.

23.2. Enhanced 911 (E911) Service

23.2.1. As the VIP Home Phone Service is provisioned and operates like traditional Plain Old Telephone Service (POTS), it utilizes Enhanced 9-1-1 identification and location capability. When a Customer dials ‘9-1-1’ while utilizing the VIP Home Phone Service, the call will be routed to the nearest Public Safety Answering Point (PSAP) associated with the municipal address at which Customer has installed the VIP Home Phone Service. The address information and telephone number associated with Customer’s VIP Home Phone Service will been sent along with the call to the PSAP.

23.2.2. When Customer subscribes to the VIP Home Phone Service, he/she must provide detailed and accurate location information, including in-building identification information (such as Suite #) to accurately reflect the exact location of the Customer in the case of a potential emergency. Customer must keep the registered location information current by updating it with Eyesurf.

While Eyesurf strives to follow industry best practices in the operation of Enhanced 9-1-1 services there is the possibility that 9-1-1 services may not fully function in certain circumstances, which may include but not be limited to: power outage(s), network failure, if Customer’s equipment or wiring is malfunctioning, in the event of suspension or disconnection of the VIP Home Phone Service because of billing issues or breach of terms of service, or Force Majeure events.

23.2.3. To reduce the risk that may arise from some of these circumstances, Customer should have a wired phone plugged in at its locations at all times.

23.2.4. The Customer acknowledges and understands that Eyesurf will not be liable to Customer or to any third party for any inability to use the VIP Home Phone Service or to obtain access to 9-1-1 services as a result of the limitations described in this section.

23.3. No 0+, Operator Assisted or 1-900 calls.

The VIP Home Phone Service does not support 0+ or operator assisted calling (including, without limitation, collect calls and third party billing calls). Further, the VIP Home Phone Service does not support 1-900 calls or other similar services. The VIP Home Phone Service does support 411 calls, which shall be charged at a rate to be determined from time to time by Eyesurf, and it also supports 311 calls where available. The VIP Home Phone Service may support certain calling card calls or other companies’ flat rate calling services (depending on dialing requirements), but it will not support 10-10 dial around long distance services.

24. Eyesurf Digital Home Phone Service (“Home Phone Services”)

24.1. Service Description

24.1.1. The features and rates for the Home Phone Services can be found at www.eyesurf.net

24.1.2. Details of the minimum system and access requirements for the Home Phone Services, such as high speed internet, can be found at www.eyesurf.net

24.2. Enhanced 911 (E911) Service. PLEASE READ THE INFORMATION BELOW ABOUT 9-1-1 EMERGENCY SERVICE CAREFULLY!

By using or paying for the Home Phone Services, the Customer acknowledges and agrees to all of the information below regarding the limitations of using the Home Phone Services for dialing 9-1-1. The Customer acknowledges and understands that the Home Phone Service offers a limited 9-1-1 type service and that such 9-1-1 type dialing differs in important respects from traditional 9-1-1 service, as described below. The Customer agrees to advise all users who may place calls over the Home Phone Service from the Customer’s location of these limitations.

24.2.1. Eyesurf 9-1-1 emergency dialing is only supported in software and on Analogue Terminal Adapters (ATAs) or modems provided by Eyesurf for use with the Home Phone Services.

24.2.2. The 9-1-1 call may be routed to a different dispatcher than that used for traditional 9-1-1 dialing. The dispatcher will be located at either the Public Safety Answering Point (PSAP) or with a local emergency service relay provider designated for the address specified by the Customer at the time of subscription or as properly updated by the Customer from time to time.

24.2.3. Eyesurf 9-1-1 emergency dialing has certain limitations relative to Enhanced 9-1-1 service. Enhanced 9-1-1 service is the type of 9-1-1 service that is generally available on most traditional primary exchange telephone services. With Enhanced 9-1-1 service, your address information associated with your telephone number is usually available to the Public Safety Answering Point at the time of your 9-1-1 call. With the Home Phone Services 9-1-1 emergency dialing, your call is being sent via the Internet rather than a traditional phone line, and as the most up to date Customer address information may not arrive with this call, a different method is required to send this Customer address information accurately. This method may involve the use of an intermediary emergency service operator to help ascertain your current location information.

24.2.4. Be prepared to confirm your location and telephone number with the operator who answers the 9-1-1 call since the operator may not have this information. It is also recommended to keep in mind that Eyesurf is your telephone service provider because if necessary, the Eyesurf central call centers can contact emergency services in severe emergency situations to attempt to help. You are also encouraged not to hang up until told to do so, and to call back if you get disconnected, as immediately as possible. Please note that it may take up to three (3) days upon initial activation of service for your address information to fully propagate throughout the 9-1-1 systems.

24.2.5. Home Phone Services 9-1-1 emergency dialing may not be available: during a power outage, network failure, if Customer’s computer, system, equipment or wiring is malfunctioning, in the event of suspension or disconnection of the Home Phone Service because of billing issues or breach of terms of service, due to any disconnection or suspension of underlying broadband access service or due to a Force Majeure event (as defined in this Agreement). Home Phone Services 9-1-1 emergency dialing will also be unavailable during a broadband internet outage. If there is a power outage, the Customer may be required to reset or reconfigure the ATA or modem (as the case may be), prior to being able to use the Home Phone Service, including for 9-1-1 dialing purposes.

24.2.6. 9-1-1 dialing will not function correctly if the Customer moves or changes locations without updating the location information with Eyesurf. In order to have 9-1-1 calls routed correctly, Customer must update his/her service address at least three (3) days prior to moving by updating the information with Eyesurf Customer service by phone or at www.eyesurf.net

24.2.7. Customer must keep the registered location information current by updating it with Eyesurf to help ensure success with the emergency service operator who may assume that Customer is at the last registered address if he/she is not able to speak during a 9-1-1 call. Customer’s registered location information is used to accurately connect to the appropriate emergency response center so that they may trigger the appropriate emergency response.

24.2.8. For technical reasons associated with the possibility of network congestion, there is a possibility that the 9-1-1 call will produce a busy signal or will take longer to answer, as compared to traditional 9-1-1 calls placed from a fixed location known to the emergency service provider.

24.2.9. Customer should inform any household residents, guests and other persons who may be present at the physical location where the Home Phone Service is utilized of the important differences in and limitations of the 9-1-1 dialing as compared with traditional Enhanced 9-1-1 service, as set out above.

24.2.10. Customers traveling outside of Canada will not have 9-1-1 dialing services.

24.2.11. If Customer is not comfortable with the limitations of the Home Phone Services 9-1-1 emergency dialing, Customer should consider having an alternate means of accessing traditional 9-1-1 or Enhanced 9-1-1 services or disconnecting the Home Phone Service.

24.2.12. The Customer acknowledges and understands that Eyesurf will not be liable for any service outage and/or inability to dial 9-1-1 using the Home Phone Services or to access emergency service personnel due to the 9-1-1 dialing characteristics and limitations listed herein. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, Eyesurf, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND UNDERLYING CARRIERS WILL NOT BE LIABLE FOR ANY INJURY, DEATH OR DAMAGE TO PERSONS OR PROPERTY, ARISING DIRECTLY OR INDIRECTLY OUT OF, OR RELATING IN ANY WAY TO THE PROVISION OR NON-PROVISION OF 9-1-1 AND/OR EMERGENCY 9-1-1 SERVICE, INCLUDING WITHOUT LIMITATION ANY INABILITY ON THE PART OF CUSTOMER OR ITS END USERS TO ACCESS 9-1-1 AND/OR EMERGENCY 9-1-1 SERVICE, AND THE CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS Eyesurf, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND UNDERLYING CARRIERS FROM ANY LIABILITIES, CLAIMS, DAMAGES, LOSSES ARISING DIRECTLY FROM THE PROVISION OR NON-PROVISION OF 9-1-1 AND/OR EMERGENCY 9-1-1 SERVICE.

24.3. Porting

24.3.1.

a) Number Transfer (“Porting to Eyesurf”): If the Customer wishes to transfer or port a current telephone number to Eyesurf, the Customer must complete a Letter of Authorization (the “LOA”) and submit it to Eyesurf. The LOA will permit Eyesurf to contact the Customer’s current carrier and request the port of the number to the Eyesurf network. The Customer is responsible to cancel the service agreement with the current carrier, once informed by Eyesurf that the port is complete. Eyesurf will not be responsible for numbers that are lost, charges incurred to reclaim the telephone number, or any other porting fees, should the Customer cancel his/her service before the port is complete. In the event that a Number Transfer is rejected due to any information provided by the Customer, Eyesurf reserves the right to charge a Port Rejection Fee of $50.

b) Number Transfer Away From Eyesurf (“Porting Out”): If the Customer intends to change to another service provider, the Customer may request to take or “port out” the telephone number supplied by Eyesurf to such other service provider. If the Customer asks a new service provider to port a number from Eyesurf, the Customer is recommend to contact Eyesurf after the port is completed so that Eyesurf can ensure billing has been cancelled. The Customer shall remain responsible for any charges and fees associated with that number until the Service is terminated. If the Customer’s Service has been suspended due to non-payment, Eyesurf reserves the right to deny the port-out request. If a port is unsuccessful for any reason, the Service and this Agreement will not terminate and the Customer will continue to be responsible for any charges and fees associated with the Service and the Customer’s account.

24.3.2. Directory listing. The telephone number(s) that the Customer obtains in connection with the Home Phone Service will not be listed in any telephone directories.

24.3.3. No 0+, Operator Assisted or 1-900 calls. The Home Phone Service does not support 0+ or operator assisted calling (including, without limitation, collect calls and third party billing calls). Further, the Home Phone Service does not support 1-900 calls or other similar services. The Home Phone Service does support 411 calls, which shall be charged at a rate to be determined from time to time by Eyesurf, and it also supports 311 calls where available. The Home Phone Service may support certain calling card calls or other companies’ flat rate calling services (depending on dialing requirements), but it will not support 10-10 dial around long distance services.

24.4. Calling Plans & Acceptable Use

24.4.1. Details of the Long Distance Services Calling Package to be included with the Home Phone Service can be found here. Calls made to locations that are not included in the Home Phone Service shall be charged to the Customer’s Account in accordance with the terms and conditions herein.

24.4.2. Certain areas are excluded from our Free Canada and Free United States calling plans. Click here to review these destinations.

24.4.3. Acceptable Use Policy: Eyesurf’s Acceptable Use Policy will help customers understand the intended and permissible use of its service, and to prevent exploitation, fraud and abuse of unlimited calling plans and features. Unlimited long distance plans are for normal residential or personal, non-commercial use only. This means that only the account holder and/or residential family member may use the plan. Eyesurf’s residential and small business customers normally use fewer than 3,000 minutes per month, and do not have any unusual usage patterns. Therefore, a customer’s aggregate (total) usage may be considered outside of normal residential or small business use if it exceeds 3,000 minutes per month. Eyesurf reserves the right to block access to the account or charge standard per-minute fees in the event that the customer breeches Eyesurf’s Acceptable Use Policy. Please contact Customer Service if you feel that your usage patterns will fall outside of this range to discuss alternative solutions

24.5. Installation.

24.5.1. The Customer shall be responsible for the installation of the Home Phone Service. If the customer would like a Eyesurf authorized installer to perform the work, it can be arranged, and will be billed directly to the customer by the Eyesurf authorized installer. Eyesurf’ standard pricing does not include any upgrades in wiring, cabling, routers or other equipment necessary for the Customer’s home to be prepared for installation. Customer will be responsible to make and pay for any required changes or upgrades. In the event that the Customer fails to provide, prepare or maintain its locations and facilities for the installation of the Home Phone Services, Eyesurf shall not be liable for any resulting delay in commencing the Home Phone Services or any service interruption and related damages, and the Customer shall be liable for any additional costs incurred by Eyesurf in order to install or restore the Home Phone Services.

25. Fraudulent Content – Acceptable Use

The Customer agrees to be held responsible for the distribution of fraudulent materials. Eyesurf, reserves the right to bill a users credit card if violating these terms results in costs of any kind to Eyesurf.

26. Restricted Content

The Customer agrees not to post or transmit any of the following restricted contents: Illegal, Abusive or Unethical Activities including pornography, obscenity, nudity, violations of privacy, hacking, computer virus, and any harassing or harmful materials or uses, as determined by us. You agree to indemnify and hold us harmless from any claim resulting from your publications or use of Illegal, Abusive or Unethical materials.

27. Minimum Re-Connect Limit

The Customer understands they cannot log back on for a period of one (1) minute following the termination of their online session.

28. Email Account

Eyesurf does not provide E-mail accounts. Instead, Eyesurf endorses Gmail (www.gmail.com) and recommends that users subscribe to Gmail to receive their invoices. Alternatively, the Customer may also phone our technical support office for assistance in signing up for a Gmail account

30. Equipment/Hardware

30.1. For certain Services, the Customer may purchase or rent hardware or equipment from Eyesurf (“Equipment”).

30.2. The Customer shall cause the Equipment to be operated in compliance with the general operating specifications and standards of the manufacturer, and all applicable laws. The Customer will use the Equipment only in the manner for which it is designed and as a prudent and careful owner would.

30.3. In the case of rented equipment, the Customer will not sell, lease or otherwise dispose of the Equipment (or any part thereof) and will keep the Equipment free of all encumbrances. This does not apply to purchased equipment, so long the Equipment has been paid in full.

30.4. The Customer will bear the risk of loss, destruction or confiscation to the Equipment from the time the Equipment is delivered to the Customer

30.5. The Customer shall not modify the Equipment’s hardware, software, firmware or any other portion of the Equipment, except for what is provided on Eyesurf’s Support page. Any alterations beyond this can hinder functionality of the Equipment, and will not be supported by Eyesurf. In the event that these alterations prevent/alter the functionality of the modem, the customer will be charged a repair fee to be determined by Eyesurf. In the event that the modem cannot be repaired, the customer assumes responsiblity and must pay the full purchase price of the modem.

30.6. In the event of a modem exchange, the Customer will be charged a modem exchange fee as well as any fees for shipping/delivery of new Equipment and/or return of previous Equipment.

30.7. Upon termination of this Agreement, or termination of a certain Service hereunder, the all rented Equipment must be returned to Eyesurf within ten (15) days from the date of termination, failing which, the Customer will be charged the full purchase price of the Equipment. Returned Equipment must include all original cables and power adapters, must not have any physical damage and must be in good working order.

30.8. Eyesurf does not recommend, endorse or support the use of third party hardware not supplied by Eyesurf.

30.9. Purchased hardware receives a one year manufacturer’s warranty. Defective hardware may be exchanged within that time period, however the Customer is responsible for any shipping charges

31. Service Specifications

31.1. Service speed is up to the advertised upload and download speeds listed on Eyesurf’s website; for example, the speed ‘up to 10 Mbps’ means that the Customer can expect speeds up to 10Mbps or less.

31.2. Eyesurf does not make any guarantees on the speed of the Customer’s connection due to the fact that speeds vary on many external factors outside of Eyesurf’s control (including, but not limited to the distance between the Customer’s premise and Eyesurf’s Central Office or remote server).

31.3. Eyesurf shall use reasonable efforts to deliver and install the Service by the activation date. However, delays may occur due to such factors as the Customer’s availability or the acts or omissions of, third party suppliers or providers. Eyesurf does not guarantee that Services will be delivered and installed by the activation date

32. Service Installation and Technician Appointments

32.1. If a technician needs to be dispatched to the customer premise, the customer will be notified by Eyesurf and will need to agree upon an appointment date and timeframe. It is then expected that someone will be home on that date during the agreed upon timeframe in order for the technician to access to the premise. In the event that no one is home and the technician has no access the household, the customer will be charged a fee of $25. This fee also applies if someone is home but refuses the technician access to the house/building. Please note: There is no guarantee that your service will be installed on the provided date, as external factors outside of our control can impede installation. In such case, a follow up installation date would need to be arranged.

32.2. Any additional wiring or termination of circuits past the Customer demarcation point is the Customer’s sole responsibility. In the event the Customer requires wiring to be performed by Eyesurf, such wiring may be performed by Eyesurf at a fee to be determined by Eyesurf. Eyesurf offers no warranties or otherwise guarantees on any inside wiring work, as maintenance is the responsiblity of the Customer

33. Eyesurf Customer Referral Program

33.1. Eyesurf rewards you for providing referrals to our service. Upon each successful referral to any of our bundle (Phone + High Speed Internet) packages, you will receive a credit of $5.00 for each month that your referral is subscribed, for a maximum of 12 months. If your referred customer leaves prior to 12 months, referral credits for that customer will also terminate.

33.2. Referral credits are only valid for referrals to our bundle services (Phone & High Speed Internet bundles)

33.3. The Referrer name and/or telephone number must be supplied at the time of sign up, or within 15 days of signup. Referral credits cannot be backdated after these dates. This also means that referral credits cannot be retroactively applied for existing customers.

33.4. The Referral Program is not valid for customers signed into wholesale agreements

33.5. Eyesurf reserves the right to terminate this promotion at any time for any reason whatsoever. Upon termination, any existing (in-progress) referral credits will still continue to be delivered as promised

34. Your Responsibilities

34.1. The Customer is responsible for getting and maintaining any software required to make use of your Eyesurf connection. Eyesurf provides no warranties for any internet or email or other connection software you may run on your computer. We assume no responsibility for any damages that may result from the use of such software.

34.2. The Customer is responsible for ensuring that use of this account does not result in damage or disruption to Eyesurf internet service. If you suspect someone may be using your account without your permission you are required to notify Eyesurf immediately. Otherwise you are responsible for any damages caused by such unauthorized use.

35. Service Support

35.1. Eyesurf will offer support for configuring internet and email programs, but cannot provide support for other system software.

35.2. Eyesurf will support purchased or rented DSL hardware from Eyesurf but cannot support hardware not purchased or rented from Eyesurf.net.

36. Minimum System Requirements

The Customer is responsible for ensuring that your computer meets the minimum system requirements. For Windows systems: Windows 95 (with original CD), Pentium 90 (Pentium 166 recommended), 32mb ram, 75 MB available on hard drive, free PCI slot for Ethernet card, CD-ROM drive. For Macintosh systems: Mac OS 7.6 with Open Transport 1.2 installed, PowerPC Processor 601, 32mb ram, 75 mb available on hard drive, CD-ROM drive, Ethernet support. If your computer does not meet these requirements Eyesurf is not responsible for any connection difficulties you may have.

Additional Terms and Conditions for Eyesurf High Speed Service

Resale of bandwidth or any other part of the High Speed service provided by Eyesurf, for any purpose, is strictly prohibited

Entire Agreement

These Terms and Conditions of Use constitute the entire agreement between the parties and supersede all prior agreements and discussions regarding the subject matter of these Terms and Conditions of Use.