Terms and Conditions

VANCOUVER INTERNET EXCHANGE TERMS OF SERVICE
(VERSION 1.1 – OCTOBER 17, 2017)

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”). The Service Terms together with any Service Orders, and the Policies 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.
1. Definitions
“Affiliates” means the definition of “Affiliates” in the Canada Business Corporations Act;

“Business Days” 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, the identity of
Participants and corresponding Autonomous System numbers. IPv4 and IPv6 Internet Protocol numbers,
and 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
relating to the Service Agreement or Services;

“Exchange Points” means the following physical locations where Services are provided and
Participants can engage in authorized peering activities that comply with Section 2 of the Service
Terms:
VANCOUVER INTERNET EXCHANGE TERMS OF SERVICE (VERSION 1.1 – OCTOBER 17, 2017)

• Harbour Centre Tower, 555 West Hastings Street, Vancouver BC V6B 4N5
o 6th Floor, MMR 6B, Cabinet 3-E “Skyway West 3”
o 21st Floor, Peer1 Hosting
• Harbour Centre Spencer Building, 515 West Hastings Street, Vancouver BC V6B 5K3
o BCNET
• Cologix VAN2, 1050 West Pender Street, Vancouver, BC V6E 4T3
o Suite 212, Cabinet VAN2.2.212.0.A.C023

and any other physical locations that may be substituted for any of the foregoing locations or
added 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.

“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” means policies, rules and regulations passed by VANIX from time to time concerning the
Services and their use;

“Receiving Party” means a Party that receives Confidential Information relating to the Service
Agreement or Services;

“Service Orders” 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 Services;

“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 http://www.vanix.ca domain.

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;
(c) Participants must remain in good standing by paying all applicable Service Fees, as defined in
Section 4 of the Service Terms;
VANCOUVER INTERNET EXCHANGE TERMS OF SERVICE (VERSION 1.1 – OCTOBER 17, 2017)

(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 reconnection charges, as may be included in the Schedule Fee posted on
the Website.

Either Party may terminate the Service Agreement at any time by providing written notice to the
other Party.

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 the fees set out in the “Fee Schedule” published on the Website (“Fees”) in
addition to all applicable taxes (“Taxes”) (combined, Fees and Taxes are referred to as “Service
Fees”). As set out in the Fee Schedule, certain Service Fees are billed yearly, in advance, on a
VANCOUVER INTERNET EXCHANGE TERMS OF SERVICE (VERSION 1.1 – OCTOBER 17, 2017)

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 be issued on January 1st
of each year.

Certain Service Fees relate to one-time charges which are billed retroactively within three (3) to
thirty business days (30) from the day the charges are incurred.

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.
5. Warranties

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 consists of 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.

6. Policies

From time to time, VANIX may establish Policies. VANIX will publish all applicable policies on the
Website. 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.
VANCOUVER INTERNET EXCHANGE TERMS OF SERVICE (VERSION 1.1 – OCTOBER 17, 2017)

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.

8. Indemnifications

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 VANCOUVER INTERNET EXCHANGE TERMS OF SERVICE (VERSION 1.1 – OCTOBER 17, 2017) 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 VANIX’ WRITTEN CONSENT, WHICH SHALL NOT BE UNREASONABLY WITHHELD.

9. Confidentiality

9.1 General Confidentiality

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, in addition
to other available remedies, 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. General

10.1 Amendments. VANIX may amend any part of the Service Agreement at any time, at its sole
discretion. Amendments to the Service Agreement will be posted on the Website. 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

VANCOUVER INTERNET EXCHANGE TERMS OF SERVICE
(VERSION 1.1 – OCTOBER 17, 2017)

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.
10.7 Notices.
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 Kanata, Ontario
K2K 2E3

Email: info@vanix.ca.

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.