CUSTOMER AGREEMENT / TERMS OF SERVICE

In respect to internet and telecommunications services provided by Netfox Communications Corporation (‘Netfox’), all services are prepaid with the exception of pay per use long distance and toll free and are charged immediately, identified as “Netfox Communications” on the Credit Card and Bank statements.

For all new registrations, the first month’s charge and/or activation fees are non-refundable. A refund will only be given to accounts that cannot receive service. Delays in activation due to improper information provided by you the customer, home wiring, central office or telephone line problems, or anything of the like do NOT qualify as non-serviceable events. Netfox must be allotted the opportunity to complete its troubleshooting before a refund/credit will be issued.

Netfox or any of its agents or third party providers are only responsible to bring/provide DSL service to the locations demarcation point. Under no circumstance or condition are any of the above responsible for any inside wiring, internal repairs or equipment. FTTN orders include the installation of a POTS splitter and sync verified to the jack. Cable installations include verification of a signal to the modem, if one is available during the install.

Netfox or any of its agents or third party providers cannot be held accountable or responsible under any circumstance or condition for any cancellation fees or costs incurred by you from you previous service providers.

A charge of fifteen dollars ($15.00) will be applied for any payment returned by the bank.

Netfox may interrupt service without prior notice for the following reasons: a) If the customer is in default of payment at the agreed upon dates and/or; (b) If at any time, for cause, such as, but not limited to: violation of the Internet Use Policy.

Netfox reserves the right to cancel service for chronic late payments, even if the account has been brought up to date.

The customer shall pay to Netfox all expenses related to the reinstatement of the services following an interruption whereas such expenses may be incurred directly by Netfox or any third party for the benefit of the customer, or of Netfox. In the event the account is sent into 3rd party collection, all expenses incurred shall be the responsibility of the customer.

In the event where a customer is not billed for service due to an error or omission on the part of Netfox, the customer is still liable for all charges going back to the opening of their account.

Netfox does not refund for partial months. Accounts cancelled any time during the month are deemed to be cancelled as of the end of the paid up or billed for period, regardless of when the customer requests service disconnection. In the event the customer requests cancellation after payment has been collected for that month, a refund will be issued minus $10.00 ‘late cancellation fee’ to cover credit card/banking charges and labour cost. If an account has been cancelled mid-month due to non-payment, the full amount is still owing for that month.

Our designated billing date is the 23rd of each month. Customers will insure they have funds available in their accounts as withdrawals can take place anytime after 24 hours of receiving their bill. We reserve the right to add/change/remove these dates at any time.

A $5 dollar or 2% charge, whichever is greater may be applied against delinquent accounts. Please ensure that the email provided is valid and regularly checked, as all notifications will be sent via email.

A Diagnostic Maintenance Charge occurs when Bell has been dispatched to check your line and they find no fault between the Central Office and the demarcation point on your house. The customer is responsible for payment of those charges, which are currently $110.00 + tax.

ITMP’s– The Internet Service provided by Netfox in certain areas may be subject to Internet Traffic Management Policies (ITMPs) imposed by the underlying Carrier under TPIA or GAS agreements, or by Netfox itself, in order to offer Services at competitive prices.

For Services in Ontario and Quebec: Most of the network facilities that make up the Internet are shared by many users at the same time. This is also true for the network facilities used by Netfox’s High Speed Internet Service. While Netfox is constantly investing in its network in order to ensure a high quality Internet service, significant increases in traffic demand may occasionally result in congestion on such shared networks. Netfox has designed its Internet Quality Management system to minimize the impact for most users during congestion periods. Netfox’s Internet Quality Management system works by identifying types of Internet traffic that are more sensitive to congestion and delays and prioritizing such traffic when necessary. The system identifies traffic types at all times in order to react immediately in case of network congestion. Normally no prioritization of traffic occurs as the network capacity is more than sufficient to handle the traffic volume. However during congestion periods, delivery of the more time-sensitive traffic will be prioritized to ensure an overall high quality internet experience for the most users possible. Internet traffic is identified and, if necessary, prioritized based on three groups. The highest priority is given to applications that are very time-sensitive, such as gaming and VoIP. The second priority group consists of traffic that is also sensitive to congestion, such as web browsing, social networking and video streaming. The third group includes applications that are traditionally less popular with our end-users as a whole. Normally all internet traffic will be delivered at full speed. During congestion periods, End users should see no change in the quality of their Internet experience when using time-sensitive Internet applications. End users using less time-sensitive applications may notice a decrease in their download/upload speeds until the temporary network congestion has passed.

LIMITATION OF LIABILITY: The services, equipment and software are provided ‘as is’ and ‘as available’ without warranties or conditions of any kind. Without limitation, Netfox does not warrant the performance, availability, uninterrupted use of the phone or internet, your connection to the phone or internet, equipment, the services, or any software provided by Netfox or its licensors. NETFOX’S MAXIMUM LIABILITY FOR NON-PERFORMANCE OF SERVICES WILL BE NO MORE THAN ONE MONTHS COST OF SUCH SERVICES.

Prices are subject to change at any time without notice.

High Speed DSL/FTTN.

A $110.00 servicing fee may apply to customers using our Dry Loop DSL service if additional work is required at your location.

Under no circumstance or condition is Netfox or any of its agents or third party providers responsible to disconnect/cancel your current provider during your transition to Netfox.

Netfox agrees to provide up to 3 e-mail addresses with all internet plans.

Long Distance.

You agree to be responsible for paying Us for all long distance calls made from the phone numbers that You subscribed to with Us, whether or not You authorized the calls.

Billing is calculated by adding the total number of used long distance minutes and multiplying by your contracted rate. Calls are billed for a minimum of 30 seconds, and 6 second increments thereafter. Unused plan minutes do not carry forward.

We may cancel or temporarily block long distance services without prior notice and without incurring liability if we believe such action is necessary to protect against fraud or abuse of services.

“Unlimited Residential Long Distance Package” – For the purposes of this agreement, our Unlimited Residential Long Distance Packages are designed for the sole use of residential customers for personal use only. Use of this Pricing Plan for the purposes of carrying on business and earning revenue is a violation of the Terms of this agreement. If individual long distance usage exceeds 1500 minutes per month on a regular basis, or we suspect that the account is being used for business purposes, we reserve the right, at our sole discretion, to either (a) terminate your service without notice, or (b) increase the monthly fee for your unlimited plan, (c) change your Pricing Plan to a per minute plan, or (d) change your Pricing Plan to a Business Unlimited Plan.

“Unlimited Business Long Distance Package” – For the purposes of this agreement, our Unlimited Business Long Distance Packages are designed for the sole use of business customers for voice traffic only. You may NOT use this service for the purposes of (i) connecting to a network via phone line that requires long distance charges, (ii) connect to a dial up internet account requiring a long distance number, and (iii) inbound or outbound call centres. Use of this service to connect to a network or internet service that requires long distance charges is a violation of this agreement. If long distance usage exceeds 2500 minutes per month per line on a regular basis, we reserve the right, at our sole discretion, to either (a) terminate your service without notice, or (b) increase the monthly fee for your unlimited plan, or (c) change your Pricing Plan to a per minute plan.

ATOP IPTV Service

ATOP is an online IPTV subscription service providing its members with access to online television and other audio-visual entertainment content on Standard or High definition quality streamed over a Virtual Private Network (VPN). We offer a variety of subscription plans at varying price levels, including special promotional plans or subscriptions with limitations on the number of TV-channels/movies during a month. We reserve the right in our sole and absolute discretion to make changes from time to time and without notice in how we operate our service. Any description of how our service works should not be considered a representation or obligation with respect to how the service will always work. We are constantly making adjustments to our service and often these adjustments are not completely captured within these Terms of Use.

TV/VOD STREAM DELIVERY SPEED

We utilize a province wide network of local broadband providers to send and receive content you have selected through the subscription. Based on performance data from the broadband provider and our own analysis, we have determined that the large majority of our members are able to receive their Video at 10 Mbps or higher to view un-buffered and live video.

PLANS AND CONTRACT RESTRICTIONS

In case any of the TV channels shut down their operations or in case of any dispute between the TV channels and ATOP, the same TV channel will not be transmitted by ATOP; no partial / full refunds are done by ATOP to the customers. We do not provide refunds or credits for any partial-month Subscription period or unwatched content.

PLANS AND PACKAGES

ATOP offers various plans and packages on its website to Subscribers. Detail information of current plans and packages are always available on our website. ATOP reserves the right in our sole and absolute discretion to make changes from time to time and without notice to the plans and packages.

ONGOING SUBSCRIPTION

Your ATOP subscription will continue in effect unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews each month in order to avoid billing of the next month’s subscription fees to your Payment Method. We will bill the monthly subscription fee plus any applicable tax to the Payment Method you provide to us during registration (or to a different Payment Method if you change your account information).

DISCLAIMERS OF WARRANTIES AND LIMITATIONS ON LIABILITY

THE ATOP SERVICE, INCLUDING TV CHANNELS/VOD FEATURES, AND FUNCTALITIES ASSOCIATED HEREWITH, THE WEBSITE AND ITS CONTENTS, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND AND WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE ATOP SERVICE, THE WEBSITE AND ITS CONTENTS. ATOP DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE ATOP SERVICE. INCLUDING SHIPMENT OF STB WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT ATOP MAY ELIMINATE OR OTHERWISE MODIFY ANY OR ALL ASPECTS OF THE ATOP SERVICE AT ANY TIME, WITHOUT COMPENSATION OR NOTICE TO YOU.

Without limiting the foregoing, we assume no liability or responsibility for any of the following:

i. content contained on or defects from the ATOP service, including damage or defects occurring or caused during shipment;
ii. errors or omissions in the content delivered by the ATOP service or on the ATOP website;
iii. recommendations or advice of Customer Service;
iv. any failures, mis-shipments, delays, or interruptions in the shipment of STB;
v. any failure or interruption in the availability of the ATOP service and/or website, including availability of our watch instantly functionality;
vi. delivery and or display of any content contained on the ATOP website or through the ATOP service, including any movies via our VOD;
vii. any losses or damages arising from the use of the content provided on the ATOP website or the ATOP service itself. TO THE EXTENT ALLOWABLE BY LAW, WE AND OUR LICENSORS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, INCLUDING, FOR EXAMPLE, WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. In addition, we do not represent or warrant that the information accessible via our site is accurate, complete or current. We do not make any representations with respect to the content contained on movies from the ATOP service or the descriptions of any movie content contained on our website. We do not represent or guarantee that your use of the ATOP service and website will be free from interruption, loss, corruption, attack, viruses, interference, hacking, or other security intrusion and we disclaim any liability with respect thereto. No oral or written information or advice given by us or our authorized representative shall create a warranty or otherwise constitute a representation binding upon ATOP or its affiliated parties.
In no event shall ATOP or Netfox, their shareholders, directors, officers, or employees be liable (jointly or severally) to you for personal injury or any special, incidental, indirect or consequential damages of any kind, or any damages whatsoever resulting from loss of use, data or profits, business interruption or any other commercial damages or loss, whether or not advised of the possibility of damage, and on any theory of liability, arising out of or in connection with the use or performance of the ATOP website, its contents or the ATOP service, features or functionalities associated therewith. In no event shall our total liability to you for all damages for losses arising from the use or inability to use our website, its contents or the ATOP service, including any TV Channels, features or functionalities associated therewith (other than as may be required by applicable law in cases involving personal injury) exceed the amount of one month’s subscription fee on your subscription plan. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. If any applicable authority holds any portion of this section to be unenforceable, then liability will be limited to the fullest possible extent permitted by applicable law.

LIMITATIONS ON USE

You must be 18 years of age or older to become a subscriber of the ATOP service. While individuals under the age of 18 may utilize the service, they may do so only with the involvement of a parent or legal guardian. Unless otherwise specified, our subscription service and the content on the ATOP website, including content viewed through our STB, are for your personal and non-commercial use only and we grant you a limited license to access the ATOP website for that purpose. You may not download (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms of Use), modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from, the ATOP website, without our express written consent. ATOP does not promote, foster or condone the copying of digitally delivered content, or any other infringing activity. You may not frame or utilize any framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of ATOP without our express written consent.

COPYRIGHT

The ATOP streams and all content included on the ATOP Web site and delivered to subscribers as part of the service, including movies you can watch, text, graphics, logos, designs, photographs, button icons, images, audio/video clips, data compilations, are the property of ATOP, or its suppliers and are protected by Canadian and international copyright laws or other intellectual property laws and treaties. The compilation of all content on ATOP site is the exclusive property of ATOP, and protected by Canadian and international copyright laws. Content shall not be reproduced or used without express written permission from ATOP, or its suppliers. ATOP reserves the right to terminate your subscription hereunder if ATOP, in its sole and absolute discretion, believes that you are in violation of this paragraph, The use of the ATOP service is solely for your personal and non-commercial use. Please see the instructions at the end of these Terms of Use for notifying us of the presence of any allegedly infringing content on the ATOP website.

TRADEMARKS

ATOP and its logo are registered trademarks of ATOPTV. The ATOPTV logo, ATOPcom.com are trademarks or service marks of ATOP. The ATOPTV website, including but not limited to its graphics, logos, page headers, button icons, scripts and service names constitute trade dress of ATOP. The trademarks, service marks and trade dress of ATOPTV may not be used or reproduced without prior written approval from ATOP and may not be used in connection with any product or service that is not affiliated with ATOP, in any manner that is likely to cause confusion among customers, in any manner that dilutes the rights of ATOP, or in any manner that disparages or discredits ATOP. Other trademarks that appear on the ATOPTV website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by ATOP. Any images of persons or personalities contained on the ATOPTV website are not an indication or endorsement of ATOP or any particular product or our service unless otherwise indicated.

Equipment Purchases & Warranties

Netfox will honour the manufacturers warranty on all equipment sold to the end user that has failed due to a manufacturers defect within the warranty period. Customer agrees to return the defective unit upon receipt of the replacement. Netfox will pay shipping costs to send out the replacement unit and customer will pay shipping costs to return the defective unit to Netfox.

The customer may incur an additional charge if a unit is returned that has suffered obvious damage caused by impact, fire, water, electricity or neglect. In these situations customer would be liable for the replacement cost of the new modem plus shipping. Netfox will not accept returned items sent COD.

Customer Obligations

a.The Customer shall: i.for any Customer or third party provided equipment or software, arrange for the supply, installation and maintenance of such equipment, if applicable, and ensure that such equipment or software is installed and maintained according to the manufacturer’s specifications and the customer’s specifications, if any;
ii.understand that service is available where technology permits. Rates do not include installation by a technician and costs to correct internal wiring problems at customers’ premises.
iii.ensure at all times that the Netfox Communications Provided Equipment and Customer or third party provided equipment is stored in a manner and in an environment which conform to the relevant equipment manufacturer’s specifications;
iv.be responsible for the loss of and risk or damage to the Netfox Communications Provided Equipment except where caused by the negligence or willful misconduct of Netfox Communications;
v.provide all necessary infrastructure, including without limitation, power outlets, grounding and anti static environments required for the safe and efficient operation and maintenance of the Netfox Communications Provided Equipment and the Customer or third party provided equipment in accordance with Canadian Standards Association or other specifications or regulations as applicable; and
vi.permit Netfox Communications or its Third Party Providers prompt and safe access to its premises for the purpose of performing its obligations under the service(s) provided or disconnecting and removing the Netfox Communications Provided Equipment.

b.The Customer, its agents, employees or representatives shall not commit any act or cause or permit any act to be committed or provide any services which will conflict with or affect in any way the provision of the Services by Netfox Communications.
c.The Customer agrees not to tamper with, alter or otherwise rearrange the Services nor shall it permit or assist others to abuse or fraudulently use the Services including but not limited to using the Services (i) in any manner which interferes unreasonably with the Services or Netfox’s network, or access thereto by other persons; or (ii) for any purpose or in any manner directly or indirectly in violation of applicable laws or in violation of any third party rights.
d.The Customer shall solely be responsible for use of the Services by any of its employees, officers, directors, agents as well as its end users and agrees to take all necessary measures to ensure that such persons use the Services in accordance with these terms and conditions. The Customer agrees to comply with (i) the Internet Use Policy set forth herein, which policy may be amended by Netfox Communications from time to time; to the extent the Customer is receiving an Internet based service, and (ii) any third party software license terms and conditions in respect of software used by the Customer in connection with the use of the Services.
e.The Customer shall be solely responsible for obtaining necessary licenses and/or authorizations for all software and equipment, which are not provided by Netfox Communications. Netfox Communications shall not be responsible if any changes in the Services cause equipment, hardware or software not provided by Netfox Communications to become obsolete, require modification or attention, or otherwise affect performance of same. Netfox Communications shall provide the Customer with one (1) month’s notice of such changes.
f.Netfox Communications reserves the right to take all actions, including immediate suspension of the Services, which it considers necessary to assure compliance with the Customer Obligations. The Customer will be responsible for all additional costs, liabilities and expenses incurred by Netfox Communications resulting directly from a breach by Customer of this Section.

Warranty

1.Customer acknowledges that Netfox Communications does not warrant uninterrupted or error free Services or the content, availability, accuracy or any other aspect of any information including, without limitation, all data, files and all other information or content in any form or of any type, accessible or made available to or by Customer or its end users through the use of the Services. Netfox Communications shall be permitted from time to time to interrupt the Services in order to provide maintenance to the Services, as more specifically set out in the Schedules.
2.The warranties provided in this Agreement are in lieu of all other warranties and conditions. The Customer hereby waives all other warranties and conditions, express, implied or statutory, including any warranty of merchantability, fitness of a particular purpose, or availability or reliability of the Services.

Termination

1.Either Party may, at its option, terminate this Agreement effective 5 days after notice or prior opportunity to cure the default if the other party makes or is deemed to have made a general assignment for the benefit of creditors under the Bankruptcy and Insolvency Act (the “Act”), or if a petition is filed against it under the Act (and is not removed within thirty (30) days after the filing thereof), or if it shall be declared or adjudicated bankrupt, or if an application is made in respect of it under the Companies’ Creditors Arrangement Act, or if a liquidator, trustee in bankruptcy, custodian, receiver, receiver and manager, moderator, or any other officer with similar powers shall be appointed of or for it (and is not removed within thirty (30) days, if such appointment was not voluntary), or if it shall commit any act of bankruptcy or institute proceedings to be adjudged bankrupt or insolvent or consents to the institution of such appointment or proceedings, or if it admits in writing an inability to pay debts generally as they become due or becomes an “insolvent person” as that term is defined in the Act.
2.Netfox may terminate this Agreement in the event that the Customer is in breach of any material term of this Agreement (other than a failure to pay an amount when due) and shall fail to remedy such breach within two (2) days after receiving written (by email, mail or fax) notice thereof from the Netfox. Notwithstanding the foregoing, if the breach is not capable of being remedied within such two (2) day period, the period in which the breach may be remedied shall be extended for an additional period of three (3) days, provided that the Customer has used and continues to use all reasonable commercial/personal efforts to cure the breach in a timely manner.
3.Netfox may terminate this Agreement in the event the Customer fails to pay any amount payable hereunder when due and fails to remedy such breach within two (2) days after receiving written (by email, mail or fax) notice thereof from Netfox.
4.Customer may terminate this Agreement in the event Netfox fails to provide the service requested hereunder when due and fails to remedy such breach within five (5) days after receiving written (by email, mail or fax) notice thereof from Customer. The sole remedy for such breach is the value of up to one (1) months service, unless mutually agreed by both parties.
5.For the purposes of this Agreement, in the event that Customer does not perform its respective obligations, responsibilities or provide the deliverables agreed to in this agreement, and such breach is not cured within the two (2) day period referred to in section 4(b) above, Netfox may, at its option, immediately terminate this Agreement and all fees under this Agreement, shall be immediately due and payable to Netfox.
6. Cancellations are deemed to be for the end of the current paid up period. To cancel for the end of the current month, Netfox must be notified at least 2 days prior to the customers billing date. If the invoice has been generated but payment not yet collected we can still cancel for the end of that month. If payment has been collected we can cancel for the end of the month and a refund will be issued, minus a $10.00 late termination fee to cover payment processing charges incurred by Netfox. Once into a paid up month, services can be disconnected for any day but no refunds will be issued. If we are advised a month ahead that you wish to cancel mid month the following month, we can prorate your invoice so that you are only charged up to your cancellation day.

Remedies

1.SUBJECT TO SECTION 4, NETFOX’S AND THE THIRD PARTY PROVIDERS’ TOTAL CUMULATIVE LIABILITY, IF ANY, TO THE CUSTOMER FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE PROVISION OF THE SERVICES WILL IN NO EVENT EXCEED THE TOTAL AGGREGATE MONTHLY CHARGES (NET OF ALL DISCOUNTS AND CREDITS) PAID BY THE CUSTOMER DURING THE PERIOD SUCH DAMAGES WERE INCURRED, SUCH PERIOD NOT TO EXCEED THREE (3) MONTHS, FOR THE SPECIFIC SERVICES THAT ALLEGEDLY GIVE RISE TO THE DAMAGES.
2.CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AGAINST NETFOX COMMUNICATIONS IN RESPECT OF THE SERVICES AND THIS AGREEMENT SHALL BE AS STATED IN THIS AGREEMENT.

Limitation of Liability

UNDER NO CIRCUMSTANCES WILL NETFOX COMMUNICATIONS OR THE THIRD PARTY PROVIDERS BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EXPENSES, COSTS, LIABILITY, LOSS, OR DAMAGE WHATSOEVER, INCLUDING, LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOSS OF USE OF ANY INFORMATION SYSTEM, FAILURE TO REALIZE EXPECTED SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING IN NEGLIGENCE, TORT, STATUTE, EQUITY, CONTRACT, COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY EVEN IF NETFOX COMMUNICATIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. CUSTOMER AGREES, ACKNOWLEDGES AND CONFIRMS THAT THE LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION ARE FAIR AND REASONABLE IN THE COMMERCIAL CIRCUMSTANCES OF THIS AGREEMENT AND THAT NETFOX COMMUNICATIONS WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR CUSTOMER’S AGREEMENT TO LIMIT NETFOX’S AND ITS THIRD PARTY PROVIDERS’ LIABILITY IN THE MANNER, AND TO THE EXTENT, PROVIDED FOR HEREIN.
1.NETFOX COMMUNICATIONS AND THE THIRD PARTY PROVIDERS ASSUME NO LIABILITY ARISING FROM (i) THE USE OF THE SERVICES FURNISHED BY NETFOX COMMUNICATIONS IN COMBINATION WITH SERVICES, PRODUCTS OR EQUIPMENT PROVIDED BY CUSTOMER OR ANY THIRD PARTIES AND (ii) THE FAILURE BY THE CUSTOMER TO PERFORM ITS OBLIGATIONS.
2.SECTIONS 3 AND 4 OF THIS AGREEMENT SHALL APPLY EVEN IN THE EVENT OF A BREACH OF CONDITION, A BREACH OF AN ESSENTIAL OR FUNDAMENTAL TERM, OR A FUNDAMENTAL BREACH OF THIS AGREEMENT.