Network Service Terms and Conditions
The TERMS AND CONDITIONS herein (these “Terms”) govern your use of the Nextcom Services and Equipment. The Agreement and any other materials incorporated by reference (collectively, the “Materials”) together with these Terms constitute our agreement with you (“Network Services Agreement”). You may have more than one Agreement with us. If there is any inconsistency between the Materials and these Terms, these Terms will prevail. The Agreement may be amended from time to time which changes will become effective upon posting to the Nextcom website or to your account. The following provisions are incorporated into and form part of the Agreement:
(a) "we", "us", "our", and "Nextcom" mean Nextcom Communications Inc. and its affiliates; (b) "you" and "your" mean a Nextcom account holder; (c) "Equipment" or “Device” means any radio, device, accessory or other product approved and provided by Nextcom that is active on your account with Nextcom; (d) "Services" means all services Nextcom provides to you or agrees to provide to you; (e) "Agreement" means the Network Services Agreement, a copy of which is accessible at www.nextcommobile.com; and (f) "Users" means your employees, representatives and other individuals who use any of the Services on or through your account with Nextcom.
2. Polices and Acceptable Use
Nextcom has established policies, rules and limits concerning use of the Services, Equipment and any products, applications or software used in conjunction with the Services or Equipment. Your use of the Services is subject to these Policies, which are incorporated into these Terms by reference. You must cause your Users to comply with the Terms and all other documents which form part of the Agreement including Nextcom's policies, practices and procedures (the "Policies"), a copy of which is accessible at www.nextcommobile.com. You and your users expressly agree not to use any of the Equipment or Services in any manner that is illegal, fraudulent, threatening, abusive, defamatory or obscene, or in a way that could damage or adversely affect Nextcom or any our networks, property, services, reputation, customers or suppliers.
You must purchase, install, maintain and update, at your cost, the Equipment required to access the Nextcom network and use the Services. Nextcom does not manufacture its Equipment and therefore shall provide hardware support only according to the manufacturers standard warranty provided (the “Covered Products”), and covers only material defects. Any physical, cosmetic, moisture damage, any damage to the antenna, display or keypad, or any other damage caused by not using or protecting the products as described in the documentation provided with those products is not covered by the manufacturers warranty. Only Nextcom certified technicians can assess damage; if the Covered Products are opened by anyone other than Nextcom's certified technicians, the foregoing manufacturer’s warranty will be void. All warranty claims must be made by returning the defective product to Nextcom within the warranty period. If, at its own discretion, Nextcom concludes that your product is covered under warranty, Nextcom will repair or replace the product at Nextcom's expense. Nextcom warrants that the Covered Products will operate in accordance with the Services. Nextcom may update or change the software, firmware, settings, specifications and features of the Equipment from time-to-time, and you hereby authorize Nextcom to do so. You will not sell, lease, mortgage, transfer, assign or encumber the Equipment without the express consent of Nextcom. You do not and will not have any proprietary, ownership or any other right to any identification number, phone number, SIM number or other identifier Nextcom assigns to you or your users or to your Equipment or your account. You and your users must not alter or tamper with any identification, signaling or transmission component or feature of the Equipment used in connection with the Services. You are solely responsible for your account with us and for maintaining the security of all of your and your users' account numbers, names and passwords.
4. Network Coverage
Nextcom does not guarantee uninterrupted wireless radio telecommunication services in any of Nextcom’s markets. Service may be temporarily limited or refused due to radio and cellular network limitations, environmental conditions, force majeure, network interference or any other reason within or outside of Nextcom's control. Wireless network coverage is not available everywhere and you hereby acknowledge there are gaps in the coverage areas that, along with other factors beyond Nextcom's control (e.g., network problems, software, structures, weather, geography, topography, etc.), may result in dropped and/or blocked connections, slower call set-up or transmission speeds, or otherwise impact the quality of Service. Emergency services such as 911 may not be not available on all Nextcom’s networks. Other Services that rely on location information, such as GPS navigation, depend on your Equipment and Service package options. You will be responsible for any and all charges related to roaming outside of the stated coverage areas in materials provided by Nextcom.
5. Credit Approval and Deposits
All accounts are subject to credit approval. In addition to information supplied by you, you hereby consent to Nextcom obtaining credit information from trade references and credit reporting agencies and such other sources as Nextcom deems necessary or appropriate. Based on the credit report and other factors Nextcom deems relevant to your creditworthiness, including, without limitation, your payment history and/or usage patterns, Nextcom may, at its sole discretion, at any time, withdraw or change the Agreement, place restrictions or conditions on you and your users' use of Services or assess a security deposit on our Equipment or other form of payment guarantee. Such deposit shall be subject to increase or decrease as Nextcom deems necessary and shall not accrue interest. Such deposit is not a credit against any payment obligations. Nextcom will refund any deposits upon termination of the Agreement, as applicable. You may receive the Services prior to completion of a credit review or security deposit request. In providing Services, Nextcom does not waive its right to demand a security deposit or complete a credit review. Nextcom reserves its right to interrupt, suspend or discontinue Services if delays in providing our security deposit demand. In no event shall Nextcom be liable to you or to any third party by reason of interruption, suspension or discontinuation of Service.
6. Term and Early Termination
The term of the Agreement starts on the Contract Start Date noted one the Agreement and shall continue until the Contract End Date unless terminated in accordance with the provisions of the Agreement or applicable law. Upon expiration of the term, the Agreement will continue thereafter on a month-to-month basis until such time as you renew or extend the term of the Agreement, you enter into a new Agreement with Nextcom or the month-to-month arrangement is terminated by either you or Nextcom. For any Equipment you terminate prior to the end of the term of the Agreement, or which Nextcom terminates prior to the end of the term of the Agreement for cause, you will be charged the lesser of: (a) an early termination fee of S200.00 per Device, or (b) the monthly and other fixed fees you otherwise would have paid to Nextcom for the remainder of the term of the Agreement for that Device. Other fees and charges may apply on termination. Services are provided based on periods of one month and are prepaid in advance. You may terminate the Agreement at any time by providing written notice of termination to Nextcom at least 10 days prior to the last day of the month. The Services will be in effect until the last day of the month and you will be responsible for all fees and charges up to and including the last day of the month in which the Services were terminated, including all early termination fees and other fees and charges, as applicable. There is no credit or refund for any unused Services.
7. Rates, Charges and Payment
During the term, you agree to pay the Rates and Charges set out in the Agreement. Unless otherwise specified and agreed and approved in advance, all fees, rates and charges shall be remitted to Nextcom via Pre-Authorized Debit (PAD) with your financial institution and which shall be attached and form part of the Agreement. You are liable for all charges to your account. If payment of an amount due is not received by us on the required payment date specified herein, it will be subject to a late payment charge of 2% per month, calculated and compounded monthly on the delinquent amount (26.82% per year) from the date of the first billing period on which the delinquent amount appears until the date we receive such amount in full. You agree that we can charge any unpaid and outstanding amounts, including any late payment charges, on your account via PAD. Administrative charges may be levied for administration or account processing activities in connection with your account, including as a result of the following: (a) collection efforts due to non-payment; (b) returned or rejected PAD payments; (c) change of your financial institution or banking arrangements; and/or, (d) restoring network service if non-payment resulted in suspension. Any questions or discrepancies regarding charges must be reported to us within thirty (30) days of the date of payment or billing statement. Failure to notify us within this time period will constitute your acceptance of such charges.
8. Pre-Authorized Debits
You agree to participate in and hereby authorize Nextcom Communications, or any of its successors or assigns, to draw a debit in paper, electronic or other form for the purpose of making payment related to Nextcom monthly service fees and other charges on the account indicated in this Agreement (the “Account”) at the financial institution indicated in the Agreement (the “Financial Institution”). You authorize the Financial Institution to honor and pay such debts. The Agreement and your authorization are provided for the benefit of Nextcom Communications and your Financial Institution and are provided in consideration of your Financial Institution agreeing to process debits against your Account in accordance with the Rules of the Canadian Payments Association. You agree that any direction you may provide to draw a Pre-Authorized Debit, and any Pre-Authorized Debit drawn in accordance with the Agreement, shall be binding on my as if I signed by you, and, in case of paper debits, as if they were cheques signed by you. You may revoke or cancel the authorization provided in this Agreement at any time upon notice being provided to Nextcom Communications by you in writing. The Agreement applies only to the method of payment and you agree that revocation or cancellation of the Agreement does not terminate or otherwise have any bearing on any contractual obligation that exists between you and Nextcom Communications. Nextcom Communications shall use best efforts to cancel the Pre-Authorized Debit in the next business, billing or processing cycle but shall within not more than 30 days from the notice cease to issue any new Pre-Authorized Debits. You understand that you may obtain a sample cancellation form, or further information on your right to cancel a Pre-Authorized Debit Agreement, at your financial institution or at www.cdnpay.ca. You agree that your Financial Institution is not required to verify that any Pre-Authorized Debit has been drawn in accordance with the Agreement, including the amount, frequency and fulfillment of any purpose of any Pre-Authorized Debit. You agree that delivery of the Agreement to Nextcom Communications constitutes delivery by you to your Financial Institution. You agree that Nextcom Communications may deliver the Agreement to its financial institution and agree to the disclosure of any personal information which may be contained in the Agreement to such financial institution. You agree to waive any pre-notification requirements and to abide by any modification to any pre-notification requirements as agreed to with Nextcom Communications. You certify that all information provided with respect to the Financial Institution and your Account is accurate and you agree to inform Nextcom Communications, in writing, of any change in the Account information provided in the Agreement at least ten (10) business days prior to the next due date of a Pre-Authorized Debit. In the event of any such change, the Agreement shall continue in respect of any new account to be used for Pre-Authorized Debits. You have certain recourse/reimbursement rights if any debit does not comply with the Agreement, such as the right to receive reimbursement for any debit that is not authorized or is not consistent with the Agreement and you may obtain more information on your recourse/reimbursement rights by contacting your financial institution. You warrant and guarantee that all persons whose signatures are required to sign on the Account have signed the Agreement. In addition, you warrant and guarantee, where applicable, that you have the authority to electronically agree to commit to this Agreement by secure electronic signature and that your secure electronic signature conforms to the requirements of Rule H1. You agree that Nextcom Communications will be administering the Pre-Authorized Debit Plan. You agree to comply with the Rules of the CPA or any other rules or regulations which may affect the services described herein, as may be introduced in the future or are currently in effect and you agree to execute any further documentation which may be prescribed from time to time by the CPA in respect of the services described herein.
9. Monitoring and Disclosure
Nextcom has no obligation to monitor any information or content accessible, transmitted or posted through or to the Services. Nextcom may monitor your use of the Services electronically from time to time and disclose to any third party any information necessary to: (a) satisfy any legal, regulatory or other government request, (b) operate or provide the Services, or (c) protect Nextcom,our customers and subscribers in accordance with the Policies. Nextcom reserves the right to refuse, remove or limit access to, any information or content in whole or in part that violates the Agreement or is otherwise objectionable by Nextcom in its sole discretion.
10. Suspension and Termination
Nextcom may suspend, without notice to you, the Agreement, including any Service provided under the Agreement, or terminate the Agreement at any time if you or any of your users: (a) fails to pay any amount owing to Nextcom as and when due; (b) harasses or threatens any of Nextcom's officers, employees, contractors or representatives; (c) provide false, inaccurate or unverifiable information to Nextcom; (d) interferes with any of the Services or Nextcom's operations or network; (e) uses (or is suspected to have used) any Services or Equipment in any manner restricted by or inconsistent with the Agreement (including the Policies or any document which forms part of the total Agreement) or applicable law; (f) breaches any term or provision of the Agreement (including any document(s) which forms part of the Agreement); (g) becomes insolvent or bankrupt; (h) modifies or alters Equipment from its manufacturer specifications; or (i) uses non-authorized Equipment on any Nextcom network. Additionally, Nextcom may, without notice to you, suspend any Service and/or terminate the Agreement at any time if we believe, in our sole discretion, that terminating the Agreement is necessary to protect the interests of Nextcom or any of our customers, suppliers, networks or Equipment.
11. No Warranties
Nextcom does not guarantee or warrant the performance, availability, coverage, uninterrupted
use, security or operation of the Services, the Equipment, or any products, content, applications, services, connections or networks used or provided by us or third parties. You bear the entire risk as to the use, availability, reliability, timeliness, quality, security and performance of the Services, and, to the maximum extent permitted by applicable law, Nextcom will not be liable to you or to any third party for: (a) any direct, indirect, special, consequential, incidental, economic or punitive damages (including loss of profit
or revenue, financial loss, loss of business opportunities, loss, destruction or alteration of data, files or software, breach of privacy or security property damage, personal injury, death or any other foreseeable or unforeseeable loss, however caused) resulting or relating directly
or indirectly from or relating to the Services, even if we were negligent or were advised of the possibility of such damages; (b) the denial, restriction, blocking, disruption or inaccessibility of any Services; (c) any lost, stolen, damaged or expired Equipment; (d) any acts, errors, omissions or delays in relation to connecting to or from a telecommunications carrier or any limitation connected thereto; or (e) any claims or damages resulting directly or indirectly from any claim that the use, intended use or combination of the Services or any material transmitted through the Services infringes the intellectual property, industrial, contractual, privacy or other rights of a third party. These limits are in addition to any other limits on Nextcom's liability set out elsewhere in the Agreement and apply to any act or omission of Nextcom, whether or not the act or omission would otherwise be a cause of action in contract, tort or pursuant to any statute or other doctrine of law.
12. Indemnification and Liability
You will indemnify and hold harmless Nextcom, its officers, directors, employees and representatives from and against any claims, losses, damages, costs and expenses (including, without limitation, reasonable legal fees and other litigation expenses) incurred by Nextcom relating to your violation, alleged violation or misappropriation of any intellectual property, industrial, contractual, privacy or other rights of a third party or any alleged libel or slander by a third party against you. Notwithstanding anything to the contrary contained herein or in any part of the Agreement, Nextcom's total liability to you under the Agreement or in connection with the Services and/or Equipment will be limited to the fees you paid to Nextcom under the Agreement for one (1) month.
13. Law and Dispute Resolution
The Agreement is governed by and construed in accordance with the laws in effect in the Province of Alberta. All disputes arising out of or in connection with the Agreement will be referred to and exclusively resolved with finality by arbitration administered in accordance with the provisions of the Alberta Arbitration Act by the Alberta courts of law in Calgary, Alberta; provided however, that a party may apply to a court of competent jurisdiction for interim protection or equitable relief such as an interlocutory or interim injunction.
Except as otherwise provided for in the Agreement, you will provide Nextcom notice by either phoning or writing Nextcom. Nextcom will provide you notice either in writing with your invoice, by notice in writing to you at your last known billing address or by the last known e-mail address you have provided to Nextcom. To contact Nextcom:
(a) in person or by mail: #127, 11929-40 Street SE, Calgary, AB T2Z 4M8
(b) by e-mail: firstname.lastname@example.org
The invalidity or unenforceability of any term or provision of the Agreement will not affect any other term or provision of the Agreement; if any term or provision is found to be invalid or unenforceable, the remaining terms and provisions of the Agreement will continue in full force and effect. Further, the parties will negotiate in good faith to substitute into the Agreement, such term and provision that will be as close as possible to the intention of any invalid or unenforceable term or provision.
You may not assign or sub-license the Agreement or any of your rights under the Agreement or the Services without Nextcom's prior written consent, which may not unreasonably be withheld. The Agreement is assignable by Nextcom without your consent.
The Agreement will enure to the benefit of and be binding upon you and upon Nextcom and upon your and Nextcom's lawful successors and permitted assigns.
Last Updated: July 2018