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Xplornet Communications Inc. (“Xplornet”) agrees to provide to Customer the services (the “Xplornet Services“) specified in the attached Schedule(s) (the “Schedule(s)“). The parties may from time to time execute additional Schedule(s) covering such further Xplornet Services as may be agreed upon. To facilitate the foregoing, Xplornet agrees to install or otherwise make available to Customer the equipment as set out in and on the terms and conditions contained in this Agreement and the Schedule(s) to provide the Xplornet Services (the “Equipment“). Subject to Customer’s right to terminate this Agreement and section 5.2 of Xplornet’s general terms and conditions (the “General Terms and Conditions of Service”), Xplornet may expand or contract the scope of the Xplornet Services by issuing to Customer amended Schedule(s) at least 90 days in advance of such change. Xplornet may modify, reconfigure, change or replace the Equipment at any time, as it considers necessary or desirable.

2. Fees

Customer agrees to pay to Xplornet fees for its use of the Xplornet Services and the Equipment as specified in the Schedule(s), including, without limitation, the monthly charge for service (“MRC”), the agreed upon non-recurring fees (“NRC”) as applicable, and stated in the Service Schedule collectively known as the customer fees (“Customer Fees”). All pricing is in Canadian funds and does not include any applicable taxes or applicable fees. Xplornet confirms that there are no usage fees applicable for the Xplornet Services unless specified in the Schedule(s).

3. Use of Xplornet Services

Customer agrees that it will receive and use the Xplornet Services only in accordance with and for the purposes specified in this Agreement, Xplornet’s Acceptable Use Policy, and, where applicable, that it will use commercially reasonable efforts to ensure that its clients only use the Xplornet Services in accordance with and for the purposes specified in this Agreement.

4. Use of Equipment

Customer acknowledges and agrees that it will have no right, title and/or interest in the Equipment except to use the Equipment for the purposes of receiving and transmitting telecommunications data. Customer will not itself and, where applicable, will ensure that its clients do not:

  • permit any numbering or lettering displayed on the Equipment to be removed, altered, disfigured or covered up;

  • permit the Equipment to be operated by or come under the possession or control of any person other than the Customer, its agents or employees, or its clients;

  • permit the Equipment to be removed from the site(s) specified in the Schedule(s) (the “Site(s)”);

  • permit the Equipment to be affixed to any land or premises or attached to any personal property; or

  • permit any degradation of the environmental or operating conditions under which the Equipment is to operate, from those conditions in effect at time of installation.

The Equipment shall remain the property of Xplornet, regardless of the manner in which the Equipment may become attached to any land or premises. Customer hereby acknowledges that it received a copy of this Agreement and waives all right to receive from Xplornet a copy of any financing statement, financing charge statement or verification statement filed at any time in respect of this Agreement or the Equipment under any provincial Personal Property Security Act or similar legislation. Customer agrees to do all such acts to execute all such documents reasonably required in furtherance of such statements.

Customer shall ensure that through any of its own acts the Equipment does not become subject to any lien, levy, charge, security interest or other encumbrance whatsoever. In the event of the subjection of the Equipment to any lien, levy, charge, security interest or other encumbrance whatsoever or the removal of the Equipment from the Site(s), Xplornet, without notice and using lawful means, may enter the Site(s) or other place(s) where the Equipment in question is located and take immediate possession and remove it, whether affixed to realty or not, retaining possession and suspending Xplornet Services accordingly until the breach is corrected. Where the Site(s) is on the premises of a client of the Customer, the Customer shall ensure its client’s acknowledgement that Xplornet may enter and remove the Equipment. Xplornet shall not incur any liability to Customer or its clients for or by reason of such entry or taking of possession, whether there is damage to property or otherwise and Customer shall indemnify Xplornet for any such third party claims that may be made against Xplornet.

5. Term of Agreement

This Agreement will commence on the day of initial installation. Xplornet Service is subject to the availability of suitable facilities and requested Xplornet Services. In the event the Xplornet Services set out in the attached Schedule(s) are not available for the initial installation date the subsequent installations will commence at the time of activation. The term for the subsequent Xplornet Services will be pro-rated to align with the months remaining in the original term. The term(s) for the Xplornet Services and the Equipment are set out in the Schedule(s). Unless earlier terminated in accordance with section 5 of the General Terms and Conditions of Service, this Agreement and the Schedule(s) will continue in effect for the duration of the term(s). If Xplornet has not received written notice of termination from the customer sixty (60) days prior to the expiration of the initial term, this Agreement and all associated Schedules will roll over into an additional one year period at the rates and conditions prescribed in the initial term or as otherwise negotiated. The Customer upon thirty (30) days written notice to Xplornet may terminate this additional one year period at any time.

6. Credit

The Customer acknowledges that execution of this Agreement signifies Customer’s acceptance of Xplornet’s initial and continuing credit approval procedures and policies as determined by Xplornet from time to time. Xplornet reserves the right to withhold initiation or full implementation of Xplornet Services under this Agreement pending initial satisfactory credit review and approval thereof which may be conditioned upon terms specified by Xplornet, including, but not limited to, security for payments due hereunder in the form of a cash deposit, guarantee, irrevocable letter of credit or other means, which may be increased upon Xplornet’s request at its discretion. As may be determined by Xplornet in its sole discretion, acting reasonably, at any time, if the financial circumstances or payment history of Customer is or becomes unacceptable, or in the event Customer exceeds its credit limit as determined by Xplornet or indicates difficulties in meeting its payments, Xplornet may require a new or increased deposit, partial payment, guarantee or irrevocable letter of credit, at Xplornet’s option, to secure Customer’s payments for the term of this Agreement. Failure of Customer to provide the requested security shall constitute a material breach of this Agreement and shall provide Xplornet with cause to terminate this Agreement; such termination entitling Xplornet to collect any outstanding amounts forthwith.

7. Agreement

This Agreement is comprised of the following Xplornet Service Schedules:

Primary Terms (Sections I-VII) of this Agreement and General Terms and Conditions of Service

Schedule A – Service Level Agreement and all additional Schedule(s) and amendments to Schedule(s) agreed to by Xplornet and the Customer in writing from time to time or otherwise issued pursuant to the terms of this Agreement.

This Agreement and any executed Schedule(s) contains the entire understanding of Xplornet and Customer with respect to the Xplornet Services and the Schedule(s) described in the attached schedules, and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, between Xplornet and Customer with respect to these Xplornet Services. Customer acknowledges and agrees that its entire right relating to the Xplornet Services and the Equipment are as set forth in this Agreement and hereby waives all other rights that it may have by implication of law or otherwise. In the event of any conflict between the provisions of this Agreement and the Schedule(s), the provisions contained in this Agreement shall prevail, unless otherwise provided for. The terms of this agreement are subject to confirmation of service availability and suitable facilities.