TERMS AND CONDITIONSThese Terms and Conditions, and
the service schedule(s) that are referenced herein, constitute the
agreement ("Agreement") between ThinkTel Communications, a division of
Distributel Communications Limited, including its affiliates
("ThinkTel") and the undersigned customer (“The Customer”).
This
Agreement governs the provision of and use of specific services provided
by ThinkTel to The Customer, as described in the service schedule(s)
("Service") as well as any hardware, equipment or devices provided by
ThinkTel in connection with the Service (“Hardware”).
1. THE SERVICE1.1 Providing Service.
ThinkTel shall use commercially reasonable efforts to provide the
Service to The Customer. Further, ThinkTel will use commercially
reasonable efforts to minimize disruptions to The Customer’s access to
and use of the Service.
1.2 Prohibited Activities. The
Customer shall refrain from using or allowing the Service to be used
and take reasonable steps to prevent the Service from being used: (a) in
any manner that violates any regulations, decisions, or orders
governing the use of the Service issued or adopted by the Canadian
Radio-television Telecommunications Commission (“CRTC”) or any
applicable governing body; (b) for auto-dialing, continuous or extensive
call forwarding, telemarketing, sending bulk messages, fax or voicemail
broadcasting without prior written permission from ThinkTel; (c) for
criminal or fraudulent activities or activities that would constitute a
public nuisance or infringe on the rights of any other party; (d) in any
manner that interferes with the integrity of the Service or ThinkTel’s
ability to provide services to The Customer, customers, or other parties
or in any manner that exceeds The Customer’s permitted access to the
Service; (e) by unauthorized parties; and furthermore, The Customer
shall not resell the Service without prior written permission from
ThinkTel (collectively, the “Prohibited Activities”).
1.3 Regulatory Obligation.
Without limiting the generality of the above, The Customer is required
to comply with the regulatory obligations described in Telecom Decision
CRTC 94-10, Telecom Order CRTC 96-1229, Telecom Decision CRTC 97-8,
Telecom Decision CRTC 2001-193, Telecom Decision 2007-48 and any
amendments, decisions or orders that the CRTC may issue from time to
time in relation to the Service.
1.4 Hardware. ThinkTel
is not responsible for the loss or damage of any hardware, equipment or
devices except where caused through ThinkTel’s negligence. If The
Customer has purchased or leased Hardware from ThinkTel it shall assume
all risk of loss or damage to the Hardware, once it is shipped to
Customer. The Customer shall be responsible for the use of the Hardware
in connection with the Service. The Customer shall not change or allow
to be changed any identifier, serial number, mark, tracking number, or
stamp, electronic or otherwise of the Hardware or perform a factory
reset of the Hardware without ThinkTel’s prior written permission
(“Tampering”).
1.5 Liability for Unauthorized Use. The
Customer is responsible to safeguard the Service and Hardware against
unauthorized use and Prohibited Activities. The Customer shall
immediately notify ThinkTel if they suspect or become aware that the
Hardware has been lost, stolen or subjected to Tampering or the Service
has been used or will be used for Prohibited Activities. The Customer
assumes liability for all charges incurred as a result of Tampering or
Prohibited Activities prior to notification whether or not authorized by
or caused by The Customer. The Customer has read and understands the
toll fraud prevention guidelines available at: www.thinktel.ca/en/fraud.
1.6 Network Coverage Area.
ThinkTel provides and supports the Service only in Canada, which is
ThinkTel’s network coverage area. ThinkTel’s current Direct Inbound
Dialing (“DID”) and Local Number Portability (“LNP”) footprint is listed
at: www.thinktel.ca/en/about/network. Certain Services are designed to
work with unencumbered, high-speed Internet connections. However, if the
high-speed Internet connection The Customer is using is not within
ThinkTel’s network coverage area, and/or The Customer’s Internet service
provider (“ISP”) places restrictions on the usage of voice over
Internet protocol (“VoIP”) services, ThinkTel does not represent or
warrant that use of the Service by The Customer is permitted by such
jurisdictions or by such ISP. The Customer will be solely responsible
for any violations of laws and regulations resulting from such use.
ThinkTel reserves the right to disconnect the Service immediately if
ThinkTel determines, acting reasonably, that The Customer has used the
Service or the Hardware in violation of the laws of jurisdictions
outside of ThinkTel’s network coverage area.
1.7 ThinkTel’s Intellectual Property Rights in Service.
The Service and Hardware and any firmware or software used to provide
the Service or provided to The Customer in conjunction with providing
the Service to it, or that are embedded in the Hardware, and all
Service, information, documents and materials on ThinkTel’s website is
protected by Canadian and U.S. intellectual property laws and
international treaties. The Customer shall not reverse compile,
disassemble or reverse engineer or otherwise attempt to derive the
source code from the binary code of the firmware or software. ThinkTel’s
website, corporate name, service marks, trade-marks, trade names, logos
and domain names are and will at all times remain its exclusive
property, and nothing in this Agreement grants The Customer any right or
license to use the same. The Customer shall not, without the prior
written consent of ThinkTel, use in advertising, publicity or otherwise,
the name, trade-mark, logo, symbol or other image of ThinkTel or its
affiliates, nor remove any copyright or other proprietary marks on any
documents provided.
1.8 Cancelling or transferring away Telephone Numbers.
The Customer agrees that transferring or porting telephone numbers to
another service provider does not result in an automatic termination of
underlying or associated Services supplied by ThinkTel. In the absence
of termination orders from The Customer ThinkTel will select the most
appropriate billing plan for any remaining Services and The Customer
will continue to be responsible for all the charges and fees associated
with the remaining Services. The Customer shall remain responsible for
all charges and fees for cancelled or transferred telephone numbers
through to the end of the current billing cycle; early termination
provisions of this Agreement apply to telephone numbers and Services as
applicable.
1.9 Telephone Numbers. The telephone
numbers that ThinkTel provides in conjunction with Service to The
Customer may be listed in telephone directories, however, in certain
cases The Customer may need to specifically request listings when
ordering or porting numbers, or after installation as a change order to
the Service. The Customer does not own or have any property rights in
any telephone number provided by ThinkTel in conjunction with the
Service. ThinkTel shall be entitled to change any such telephone number
where ThinkTel determines, in its sole discretion, that such a change is
necessary. ThinkTel shall give The Customer reasonable advance written
notice (via letter, bill insert or email) of such a change, except in
cases of emergency, where verbal notice shall be given, followed by
written notice as soon as is reasonably possible. ThinkTel is not liable
for any costs, damages or other amounts resulting from changes to
telephone numbers.
1.10 Compatibility – Security Systems and Broadband Services. The
Customer may have security systems that are incompatible with
ThinkTel’s Service. The Customer may be required to maintain a telephone
connection through The Customer’s local exchange carrier in order to
use any alarm monitoring functions for any security system. The Customer
is responsible for contacting the alarm monitoring company to test the
compatibility of any security system with the Service. In addition, The
Customer acknowledges that some providers of broadband service may
provide modems that prevent the transmission of communications using the
Service. ThinkTel does not warrant that all broadband services will be
compatible with the Service and expressly disclaims any express or
implied warranties or conditions regarding the compatibility of any
particular broadband service with ThinkTel’s Service. The Service may
not support operator assisted calling (including, without limitation,
collect calls, third party billing calls, 900 or calling card calls).
The Service may not support all N11 services in one or more service
areas. Service delivery is subject to availability of suitable
facilities necessary to provide the Service.
2. BILLING; TERMINATION2.1 Charges, Taxes and Late Payment.
The Customer shall pay all applicable recurring and non-recurring
charges, usage charges, fees and taxes in respect of the Service without
set-off. Invoices for recurring Services will be rendered monthly or at
a frequency consistent with the Service Schedule and usage related
charges will be included in an invoice rendered in the month following
the usage or at a time as soon as reasonably able to do so. The
Customer shall make payments against invoices in full within thirty (30)
days of the date of the invoice. If The Customer disputes any such
charges, fees or taxes reported within an invoice, it shall notify
ThinkTel in writing within thirty (30) days of receiving that invoice or
it shall be deemed that The Customer has waived any right to contest
such charges. Accounts past due will be subject to a two percent (2%)
per month late payment charge (or 26.8% per annum on a compounded basis)
which shall be due and payable upon receipt of such late payment
charges included on a subsequent invoice. ThinkTel reserves the right
to correct any errors in billing for a period of up to six (6) months,
and apply the appropriate charges retroactively.
2.2 Service Suspension or Discontinuance.
ThinkTel reserves the right to suspend, restrict or discontinue any or
all of the Service at any time in its sole and absolute discretion if:
(a) The Customer fails to make any payments due as provided by this
Agreement; (b) The Customer fails to perform as required under this
Agreement or any other agreement with ThinkTel; (c) ThinkTel determines,
in its sole discretion, that The Customer is an unacceptable credit
risk; (d) if, acting reasonably, it believes the Service has been used
or will be used for any of the Prohibited Activities or that Tampering
has occurred or will occur; or (e) it is necessary to comply with any
law, regulation, court order or governmental decision or order; in all
such cases, ThinkTel shall also have the right to immediately terminate
this Agreement without prior notice, retain all payments made hereunder,
deny The Customer any continued use of the Service and impose a
separate charge of $75 for disconnection of each Service and a separate
charge of $75 for reconnection of each Service, if applicable. In the
cases of (a),(b) and (c) above, ThinkTel will provide notice to The
Customer and perform disconnection of Primary Exchange Services in
accordance with the Commissioner for Complaints for Telecommunications
Services (CCTS) Disconnection Code. If any Service is disconnected for
reason of The Customer’s breach of this Agreement, The Customer will be
responsible for all charges through to the end of the current Service
Term, including unbilled charges, collection costs and legal fees and
expenses (on a solicitor and own client basis) plus the disconnection
fee, if applicable, all of which will immediately be due and payable.
ThinkTel may pursue collection for unpaid amounts on disconnected
accounts and may report to and exchange credit and personal information,
without seeking additional consent from The Customer, with any
credit/consumer reporting agency and financial institution relating to
The Customer’s nonpayment of its accounts under this Agreement.
2.3 Customer Termination – Fixed Term.
Where The Customer is purchasing the Service for a defined term of
twelve (12) months or longer (“Fixed Term”), and The Customer terminates
the Service prior to the end of the Fixed Term, unless specified
otherwise on the applicable service schedule, The Customer shall be
responsible for all of the outstanding Service fees associated with the
remaining Fixed Term set forth in the applicable service schedule, plus a
disconnection fee, if applicable, all of which will immediately become
due and payable.
3. 911 SERVICE3.1 Express
Consent Required. 911 emergency service over a VoIP telephone (Broadband
Internet) has certain limitations compared to Enhanced 911 services
available on most traditional telephones. The Customer must provide
express agreement and consent to the conditions and limitations of
ThinkTel’s 911 service located at:
http://www.thinktel.ca/en/pages/911-limitations4. LIABILITY4.1 Limitation and Exclusions. ThinkTel
will not be liable for any delay or failure to provide the Service, at
any time or from time to time, or any interruption or degradation of
voice or data quality. ThinkTel’s aggregate liability to The Customer,
any end user of The Customer or any third party for direct damages
arising out of or in connection with this Agreement shall be limited to
the lesser of: (a) the actual direct damages suffered by the Customer,
and (b) the charges paid by The Customer during the previous calendar
month. IN NO EVENT WILL THINKTEL, ITS AFFILIATES AND THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE FOR, AND THE
CUSTOMER HEREBY WAIVES THE RIGHT TO CLAIM, ANY INCIDENTAL, INDIRECT,
SPECIAL, PUNITIVE, EXEMPLARY, COMPENSATORY OR CONSEQUENTIAL DAMAGES, OR
FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY,
WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR
PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR
INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY
SERVICE PERSONNEL THROUGH THINKTEL’S 911 SERVICE OR TO OBTAIN EMERGENCY
HELP. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH
OF CONTRACT, BREACH OF WARRANTY OR CONDITION, PRODUCT LIABILITY, TORT
(INCLUDING NEGLIGENCE), INTELLECTUAL PROPERTY INFRINGEMENT, STRICT
LIABILITY, AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER
OR NOT THINKTEL WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE
OF DAMAGES.
4.2 Customer Indemnity. The Customer shall
defend, indemnify, and hold harmless ThinkTel, its affiliates, and their
respective officers, directors, employees, agents, and any other
service provider who offers services to The Customer or ThinkTel in
relation with the present Agreement or the service provided from any and
all claims, losses, damages, fines, penalties, costs, expenses, legal
fees, expenses on a solicitor and own client basis, etc. by, or on
behalf of, The Customer or any third party or user of the Service,
relating to this Agreement or the Services, including, without
limitation, the Hardware, or the absence, failure or outage of the
Service.
4.3 Disclaimer. To the extent permitted by
applicable law, and except as expressly stated in this Agreement,
THINKTEL MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABLE QUALITY, FITNESS OF THE SERVICE OR HARDWARE
FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY OR
CONDITION ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF
PERFORMANCE OR ANY WARRANTY OR CONDITION THAT THE SERVICE WILL MEET
CUSTOMER'S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, THINKTEL
PROVIDES NO WARRANTY OR CONDITION THAT THE SERVICE OR HARDWARE WILL
PERFORM OR OPERATE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DENIAL
OF SERVICE (DOS) ATTACKS, RISK OF TOLL FRAUD, SPIT (SPAM OVER INTERNET
TELEPHONY), VOIP PHISHING, DEGRADATION OF VOICE QUALITY OR LOSS OF
CONTENT, DATA OR INFORMATION. NEITHER THINKTEL, ITS AFFILIATES NOR ANY
OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS WILL BE
LIABLE FOR UNAUTHORIZED ACCESS TO THINKTEL OR CUSTOMER’S TRANSMISSION
FACILITIES OR PREMISES OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION,
THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR
INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR ANY OTHER METHOD,
REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF THINKTEL'S
NEGLIGENT STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR
HARDWARE, IF ANY, BY THINKTEL OR THINKTEL'S AGENTS ARE INFORMATIONAL AND
ARE NOT GIVEN AS A WARRANTY OR CONDITION OF ANY KIND.
4.4 Hardware – Third Party Warranty Only.
If the Hardware that has been sold or leased to The Customer by
ThinkTel for use in connection with the Service included a limited
warranty at the time of receipt, The Customer must refer to the separate
limited warranty document provided with the Hardware for information on
the limitation and disclaimer of certain warranties and conditions.
Remedies for breach of any such warranties will be limited to those
expressly set forth in such documentation. IF A LIMITED WARRANTY DID NOT
COME WITH THE CUSTOMER’S HARDWARE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE CUSTOMER IS ACCEPTING THE HARDWARE "AS IS". To the
extent permitted by applicable law, OTHER THAN WARRANTIES FOR THE
HARDWARE EXPRESSLY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE
HARDWARE, THE CUSTOMER’S HARDWARE IS NOT ELIGIBLE FOR REPLACEMENT,
REPAIR OR REFUND, AND THINKTEL MAKES NO WARRANTIES OR PROMISES OF ANY
KIND, EXPRESS OR IMPLIED AND SPECIFICALLY DISCLAIMS ANY WARRANTY OR
CONDITION OF MERCHANTABLE QUALITY, FITNESS OF THE HARDWARE FOR A
PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY OR
CONDITION ARISING BY USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE
OR ANY WARRANTY OR CONDITION THAT THE HARDWARE OR ANY FIRMWARE OR
SOFTWARE IS "ERROR FREE" OR WILL MEET THE CUSTOMER'S REQUIREMENTS. FOR
CERTAINTY, THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR
LIMITATION OF WARRANTY OR CONDITION SET FORTH IN THE DOCUMENTATION
PROVIDED WITH THE HARDWARE.
4.5 Liability for Content.
The Customer will be responsible for any and all liability that may
arise out of the content transmitted by or to The Customer or from any
person using the Service or Hardware, (each such person, a "User"). The
Customer shall ensure that its and its User's use of the Service and
content comply at all times with all applicable laws and regulations and
this Agreement. ThinkTel reserve the right to disconnect or suspend the
Service and remove Customer’s or its Users' content from the Service,
if ThinkTel determines, in its sole and absolute discretion, that such
use or content does not comply with the requirements set forth in this
Agreement or interferes with its ability to provide Service to The
Customer or others. ThinkTel’s action or inaction under this Section
will not constitute any review or approval of The Customer’s or its
Users' use of the Service or Hardware, including the content that may be
transmitted using the Service or Hardware.
4.6 Privacy of Content.
From time to time the Service may utilize, in whole or in part, the
public Internet or third party networks outside of ThinkTel’s control to
transmit (send or receive) voice and other communications and in these
situations ThinkTel does not assume liability for the privacy of that
content or any personal information so transmitted. Furthermore where
The Customer uses the Service to transmit (send or receive) any content
or personal information to or from a third party ThinkTel does not
assume liability for the privacy of that content or personal
information.
5. GENERAL PROVISIONS5.1 Regulatory compliance;
ThinkTel reserves the right to update these Terms and Conditions and
the attached Appendices from time to time in order to ensure regulatory
compliance. The Customer agrees that any such modifications or
amendments made for regulatory compliance purposes will be legally
binding upon the parties and immediately form part of the Agreement when
ThinkTel provides the customer with written notice (via letter, bill
insert or email).
5.2 Amendments; Prices and Terms and
Conditions for services noted in the service schedule(s) are subject to
change upon thirty (30) days written notice (via letter, bill insert or
email) when Service is purchased on a month to month basis, or following
the end of the Agreement’s initial term.
5.3 Severability.
If any part of this Agreement is legally declared invalid or
unenforceable, all other parts of this Agreement will remain valid and
enforceable. Such invalidity or non-enforceability will not invalidate
or render unenforceable any other portion of this Agreement.
5.4 Survival.
The provisions of this Agreement that by their nature are intended to
survive the termination or expiration of this Agreement shall survive.
5.5 Assignment.
This Agreement and the rights and obligations hereunder may not be
assigned in whole or in part by The Customer without the prior written
consent of ThinkTel unless the assignment is pursuant to the sale of all
or substantially all of the assets or shares of The Customer in which
case The Customer shall provide ThinkTel ten (10) days written,
acknowledged, notice of such assignment. ThinkTel may assign all or any
of its rights or obligations under this Agreement: (a) to an affiliate;
(b) to a successor in interest of ThinkTel; or (c) as part of a
corporate reorganization, amalgamation, consolidation or merger; without
obtaining the prior written consent of The Customer. This Agreement
shall enure to and be binding upon the parties and their respective
successors and assigns.
5.6 No Waiver. ThinkTel’s
failure to exercise or enforce any right or provision of this Agreement
will not constitute a waiver of such right or provision.
5.7 Third Party Beneficiary. No
provision of this Agreement provides any person or entity not a party
to this Agreement with any third party beneficiary rights.
5.8 Governing Law.
The Agreement and the relationship between The Customer and ThinkTel is
governed by the laws of the Province of Ontario and the laws of Canada
applicable therein without regard to its conflict of law provisions.
5.9 Privacy.
To the extent that personal information is provided in connection with
this Agreement, The Customer confirms that it consents, and that all
necessary consents have been obtained, to the collection, use and
disclosure by ThinkTel for the following purposes: (i) to provide
Service and other products to The Customer, (ii) administration of this
Agreement, (iii) collecting unpaid debts; and (iv) as otherwise required
or permitted by law or this Agreement. For the purposes of this
section, "personal information" does not include personal information
that is publicly available. ThinkTel only collects, uses and discloses
the personal information of its customers in accordance with its privacy
policy at the time of collection, located at:
www.thinktel.ca/en/privacy.
5.10 Force Majeure. If
ThinkTel is delayed or hindered in, or prevented from, the performance
of any act required hereunder for any reason beyond its direct control,
including but not limited to, strike, lockouts, labour troubles,
governmental or judicial actions or orders, riots, insurrections, war,
acts of God, inclement weather or other reason beyond its control, which
includes other matters that may affect the Service, such as power
outages and interruptions in Customer’s access to the Internet due to
problems experienced by its underlying ISP or broadband service
(“Disruption”) then its performance shall be excused for the period of
the Disruption.
5.11 Authority. The persons
executing this Agreement represent that they have the full power and
authority to enter into this Agreement on behalf of the party that they
represent.
5.12 Language.
Il est convenu par le
présent acte que les parties demandent que ce contrat et tout avis,
consentement, autorisation, communication et approbation soient rédigés
en langue anglaise. It is hereby agreed that the parties
specifically require that this Agreement and any notices, consents,
authorizations, communications and approvals be drawn up in the English
language.
tc-ttsvc-r001-20121030a-en
