VANCOUVER INTERNET EXCHANGE SERVICE TERMS (VERSION 1.2 – SEPTEMBER 9, 2020)
These terms and conditions (“Service Terms”) apply to the use of Services offered by Vancouver Internet Exchange (“VANIX”) to peering participants (individually, “Participant” and collectively, “Participants”). These Service Terms together with any Service Orders (as defined below), and the Policies (as defined below) constitute the “Service Agreement” between VANIX and Participants. In the event of a conflict or inconsistency between the constituent parts of the Service Agreement, the inconsistency will be resolved by first giving precedence to an executed Service Order, then to the Service Terms, then to the Policies.
By using or receiving Services, Participant agrees to the Service Terms.
“Affiliates” means the definition of “Affiliates” in the Canada Business Corporations Act;
“Business Day” means any day other than a Saturday, Sunday or a day which is a statutory holiday in the Province of British Columbia or Canada;
“Confidential Information” means any data, documentation or other information of a proprietary or confidential nature of a Disclosing Party, or which is treated as confidential by a Party whether or not identified as being confidential or proprietary, which is disclosed or made available to the Receiving Party in connection with the negotiation, preparation or performance of this Service Agreement. Confidential Information excludes information which is: (i) in the public domain at the time of disclosure; (ii) becomes publicly available through no fault of Receiving Party; (iii) is known to Receiving Party prior to receipt thereof from the Disclosing Party, free of any confidentiality obligation; or (iv) is available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, if that source or its source is not in breach of any obligations of confidentiality to the Disclosing Party. Confidential Information also excludes Participant’s (or Participant’s employees’, agents’ or representatives’) name, address, phone number, fax number, email address and any data or documentation that is required by Participants to peer with one another at an Exchange Point, including, without limitation: (a) the identity of Participants and corresponding Autonomous System numbers; (b) IPv4 and IPv6 Internet Protocol numbers held by the Participant; (c) Port size(s) subscribed by Participant at VANIX; (d) Participant’s VANIX traffic data characteristics (e.g., as analysed by NetFlow); and (e) contact information for Participants’ peering contacts.
“Contact Information” means Participant’s business name and corporate address as well as the title, phone number, mailing address and email address of all assigned contact persons for the Participant who are designated as the addressees for notices necessary under the Service Agreement;
“Disclosing Party” means a Party (or, if applicable, any of its Affiliates) that discloses Confidential Information to the other Party, that gives the other Party access to Confidential Information or the Confidential Information of which is otherwise obtained by the other Party;
“Exchange Points” means the physical locations listed on the Website from time-to-time where Services are provided and Participants can engage in authorized peering activities that comply with Section 2 of the Service Terms;
“Fee Schedule” has the meaning ascribed to it in section 4 of these Service Terms;
“Laws” means any federal, provincial municipal laws as well as regulations, rules, decisions, orders or policies made or promulgated thereunder or under any successor legislation, all as the same may be amended from time to time;
“Party” means VANIX or Participant;
“Policies” has the meaning ascribed to it in section 6 of these Service Terms;
“Receiving Party” means a Party that receives Confidential Information;
“Service Fees” has the meaning ascribed to it in section 4 of these Service Terms;
“Service Order” means an order form for Services which may be provided by VANIX or its Affiliates to the Participant from time to time and agreed to by both Parties in writing, setting out additional terms and conditions for the provision of the Services listed therein;
“Services” means network services and connections necessary for Participant to establish direct interconnection at the Exchange Points as well as any related support (professional, technical and customer), billing and other services which may be provided by VANIX or its Affiliates to the Participant from time to time;
“VANIX Parties” means VANIX, its Affiliates, partners, licensors, dealers, representatives, suppliers and agents (and their respective employees, officers, directors, shareholders and representatives);
“Website” means all webpages accessible from the website accessible at https://vanix.ca.
2. Participant Obligations and Representations
2.1 Participants must adhere to the following non-technical requirements:
(a) Participants must provide VANIX with Contact Information prior to receiving Services and must ensure that Contact Information on record with VANIX is accurate and up to date at all times;
(b) Participants must bear their own costs for the provision of routing capacity and hardware systems at their own end of links utilizing Services;
(d) Participants must comply with all Policies;
(e) Participants must comply with all applicable Laws;
(f) Participants must not interfere with or cause interference with or disruption to Services, the Exchange Points or other Participants;
2.2 If Participant is an individual, he or she represents and warrants that he or she is of the age of majority in the province of British Columbia, which is 19 years of age, and that he or she possesses the legal right and ability to enter into the Service Agreement and use the Services in accordance with the Service Agreement.
2.3 If Participant is a corporation, Participant represents and warrants that it has the authority and corporate power resulting from all necessary corporate actions to authorize the execution, delivery and performance of the Service Agreement.
3. Term, Suspension and Termination
Subject to the Service Agreement, Services are provided on an ongoing basis for an indeterminate term.
VANIX may at any time without prior notice suspend all or part of Services to Participant where: (1) Participant owes Service Fees and / or Late Payment Charges that are past due; (2) Participant is under default of any of its obligations under the Service Agreement; (3) necessary or perceived as necessary by VANIX, at its sole discretion, to protect the integrity of Services, Exchange Points and the facilities, equipment and networks of VANIX and / or other Participants. Suspensions will be lifted and Services resumed within a reasonable period of time when the underlying cause for suspension has been resolved to VANIX’s satisfaction. VANIX may require Participant to pay Service Fees associated with reconnecting any Services.
Either Party may terminate the Service Agreement at any time by providing written notice to the other Party, but the termination shall only take effect when VANIX ceases providing Services to Participant, which VANIX shall strive to do as soon as possible after the notice if provided.
Upon termination of the Service Agreement by either Party for any reason, Participant must pay all outstanding Service Fees and Late Payment Charges, as defined in Section 4.
If the Service Agreement is terminated by Participant for any reason or by VANIX for cause (i.e. Participant’s breach of the Service Agreement) or due to actual or imminent insolvency or bankruptcy or ceasing to do business in the ordinary course, the portion of Service Fees that have been paid yearly in advance, in accordance with Section 4, are non-refundable.
If VANIX terminates the Service Agreement without cause, Participant will receive a pro-rated refund for the portion of applicable yearly Service Fees for which Services have not been provided.
4. Fees and Billing
Services are subject to applicable fees set out in the Fee Schedule (“Fees”) in addition to all applicable taxes (“Taxes”) (combined, Fees and Taxes are referred to as “Service Fees”). Service Fees are set out in the fee schedule as amended from time to time (“Fee Schedule”). The Fee Schedule shall be posted on the Website, more specifically at https://vanix.ca/fee-schedule/. As set out in the Fee Schedule, certain Service Fees are billed yearly, in advance, on a calendar-year basis. For example, in the first year of Services, the invoice for yearly Service Fees will be prorated based on the number of remaining days in the calendar year (i.e. up to December 31st). Thereafter, annual invoices for yearly Service Fees shall apply on a calendar year basis. Certain Service Fees relate to one-time charges which may be billed before or after the corresponding value related to the Services provided by VANIX.
Participants must pay all invoices for Service Fees in full by the due date printed on the invoice. Any Service Fees not paid when due are subject to late payment charges in the form of interest accruing at a rate of two percent (2%) per month, being 26.82% annually, or the highest rate allowed by applicable law, whichever is lower (“Late Payment Charges”).
VANIX may change the Fee Schedule at any time by giving thirty (30) days written notice to Participants. Any changes to the Fee Schedule will not result in any adjustments and / or refunds to yearly Service Fees that have already been paid in advance. However, changes to the Fee Schedule will apply going forward for subsequent payments of yearly Service Fees.
To the maximum extent permitted by Laws, VANIX does not guarantee or warrant to Participants: (i) the performance, availability, reliability, quality, uninterrupted use, security, pricing of Services; (ii) third-party information, data, files, pictures or content in any form (collectively “Content”), or the availability, accuracy or any other aspect of any information including all data, files and all other information or third party Content in any form, accessible or made available to or by the Participant through the use of the Services.
Participant understands that VANIX may, from time to time, whether according to maintenance schedules or on an emergency basis, need to interrupt the Services for maintenance and other reasons, and that the Participant shall not receive any compensation for such interruptions.
The Service Agreement constitutes the entire agreement between VANIX and Participant. Except for the express warranties set forth in the Service Agreement, VANIX makes no other warranties, express or implied, and disclaims all other warranties, express or implied, including without limitation warranties of title, non-infringement, merchantability and fitness for a particular purpose, availability or reliability of Services, and any warranties arising from a course of dealing, usage, or trade practice.
From time to time, VANIX may establish policies (“Policies”). VANIX will publish all its Policies on the Website, more specifically at https://vanix.ca/policies/. The provision of Services is subject to Participant compliance with the Policies, which VANIX may amend from time to time. Written notice of new and amended Polices shall be provided to Participants. Participant’s continued use of Services after an amendment has taken effect constitutes Participant’s consent to the amendment. If Participant does not agree with a new Policy, Participant may terminate the Service Agreement in accordance with Section 3 of the Service Terms.
7. Limitations of Liability
VANIX PARTIES’ TOTAL CUMULATIVE LIABILITY FOR DAMAGES, EXPENSES, COSTS, LIABILITY, CLAIMS OR LOSSES (COLLECTIVELY, “DAMAGES”) ARISING OUT OF OR IN CONNECTION WITH THE SERVICE AGREEMENT OR THE PROVISION OF SERVICES, WHETHER ARISING IN NEGLIGENCE, TORT, STATUTE, EQUITY, CONTRACT, COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY EVEN IF VANIX PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, IS LIMITED TO DIRECT, ACTUAL, PROVABLE DAMAGES AND WILL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE TOTAL AGGREGATE AMOUNTS PAID BY PARTICIPANT ON A PRORATED BASIS, AS APPLICABLE, TO VANIX FOR THE SERVICE(S) GIVING RISE TO THE DAMAGES (LESS ALL DISCOUNTS AND CREDITS AND AMOUNTS PAID FOR PREVIOUS DAMAGES FOR SUCH SERVICE, IF ANY, FOR THE SPECIFIC SERVICE(S) THAT GAVE RISE TO THE DAMAGES), DURING THE THREE (3) MONTH PERIOD BEFORE THE EVENT GIVING RISE TO THE DAMAGES.
VANIX PARTIES ARE NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THE SERVICE AGREEMENT OR THE PROVISION OF SERVICES (INCLUDING LOST PROFITS, ANTICIPATED OR LOST REVENUE, LOSS OF DATA, LOSS OF USE OF ANY INFORMATION SYSTEM, FAILURE TO REALIZE EXPECTED SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS, OR ANY THIRD PARTY CLAIM), WHETHER ARISING IN NEGLIGENCE, TORT, STATUTE, EQUITY, CONTRACT, COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY EVEN IF VANIX PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
Participant agrees to indemnify, defend and hold harmless VANIX Parties and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of Participant’s representations, warranties, or agreements hereunder; (ii) arises out of the negligence or willful misconduct of Participant; or (iii) is brought against VANIX Parties by a third party in connection with the Services or other matters related to this Agreement.
In claiming any indemnification hereunder, VANIX shall promptly provide Participant with written notice of any claim which VANIX believes falls within the scope of the indemnifications hereunder, at its own expense, assist in the defence if it so chooses, provided that Participant shall control such defence and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the VANIX Parties shall not be final without THE written consent OF VANIX, which shall not be unreasonably withheld.
Confidential Information shall remain the property of the Disclosing Party. The Receiving Party shall use commercially reasonable efforts to protect the confidentiality of all Confidential Information, using at least the same standard of care as it uses to protect its own Confidential Information, but in any event, a reasonable standard of care. Neither Party shall at any time, without the prior written consent of the other Party, disclose or use (except as expressly permitted by, or required to achieve the purposes of, the Service Agreement) the Confidential Information of the other Party. The obligation to keep Confidential Information shall survive termination or expiration of this Agreement, however caused, for a period of five (5) years or, in the case of trade secrets, until such time as the Confidential Information does not qualify as a trade secret. A Party may disclose Confidential Information if required by a governmental agency, by operations of law, or if necessary in any proceeding to establish rights or obligations under this Agreement, provided that the Party required to make the disclosure gives the other Party reasonable prior written notice sufficient to permit that other Party an opportunity to contest such disclosure. The Receiving Party shall cooperate with the Disclosing Party in such party’s reasonable efforts to limit the disclosure by means of a protective order or a request for confidential treatment. Since a breach of this Section 9 of the Service Terms by either Party may cause irreparable harm to the other Party for which monetary damages may be inadequate, the non-breaching Party may seek injunctive relief for any apprehended or actual violation hereof in addition to any other remedies available at law. As soon as practicable, Receiving Party shall notify Disclosing Party of any breach of this Section 9 of the Service Terms.
10.1 Amendments. The Service Terms, as amended from time to time are posted on the Website, more specifically at https://vanix.ca/policies/. VANIX may amend any part of the Service Terms at any time, at its sole discretion and shall provide written notice thereof to Participants. Participant’s continued use of Services after an amendment has taken effect constitutes Participant’s consent to the amendment. If Participant does not agree to an amendment made by VANIX, Participant may terminate the Service Agreement in accordance with Section 3 of the Service Terms.
10.2 Assignment. VANIX may assign all or part of the Service Agreement at any time without prior notice or consent of Participant. Participant may not transfer or assign the Service Agreement or Services without VANIX’ prior written consent.
10.3 Severability. If any part of the Service Agreement is void, prohibited or unenforceable, the Service Agreement shall be construed as if such part had never been part of the Service Agreement; and the remaining provisions thereof shall remain in full force and effect and shall not be affected by the void, prohibited, or unenforceable provision or by its severance therefrom. Furthermore, in lieu of such void, prohibited, or unenforceable provision, there shall be added automatically as part of the Service Agreement a provision as similar in its terms to such void, prohibited, or unenforceable provision as may be possible and be legal, valid and enforceable.
10.4 Survival. All terms and provisions of the Service Agreement, which should by their nature survive the termination of the Service Agreement, including for additional certainty Section 9, shall so survive.
10.5 Relationship of Parties. The relationship between VANIX and Participants is that of independent contractors, and nothing in the Service Terms shall be construed to constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or a common undertaking.
10.6 Consent to receive commercial electronic messages. By entering into the Service Agreement, Participant agrees to receive commercial electronic messages from VANIX. Participant may, at any time, unsubscribe from commercial electronic messages by using the unsubscribe mechanism contained in such messages. However, Services rely heavily on electronic messaging with Participants. Unsubscribing to commercial electronic messages from VANIX may therefore impede or prevent VANIX from delivering Services to Participant.
All notices to VANIX necessary under the Service Agreement shall be given by mail or email at the following coordinates:
Mail: Attention Vancouver Internet Exchange Inc.
320 March Road, Suite 604
All notices to Participant necessary under the Service Agreement shall be given by mail or email using the Contact Information.
10.8 Governing Law and choice of venue. The laws of British Columbia and federal laws of Canada applicable in that province govern the Service Agreement. Participant consents to the exclusive personal jurisdiction of and venue in a court located in Vancouver, British Columbia for any suits or causes of action connected in any way, directly or indirectly, to the subject matter of the Service Agreement.