GENERAL TERMS AND CONDITIONS
These Terms and Conditions, and the service schedule(s) that are either attached to or incorporated by reference in these Terms and Conditions, constitute the agreement ("Agreement") between ThinkTel Communications, a division of Distributel Communications Ltd., including its affiliates ("ThinkTel"), and the Customer applicable to the specific services provided by ThinkTel to Customer, and these services are described in the service schedule(s) ("Service"). This Agreement governs the provision of, and the use of the Service, in addition to the use by the Customer of any hardware, equipment or devices ("Hardware”) that is required to be used by the Customer in connection with the Service.
1. THE SERVICE
1.1 Providing Service. ThinkTel shall use commercially reasonable efforts to provide the Service to Customer. ThinkTel will use commercially reasonable efforts to minimize disruptions to Customer’s access to and use of the Service.
1.2 Prohibited Activities. Customer shall comply with all rules and regulations governing the use of the Service issued or adopted by ThinkTel or its affiliates from time to time and that are communicated to the Customer. Customer is required to comply with the regulatory obligations described in Telecom Decision CRTC 94-10, dated 13 June 1994, and Telecom Order CRTC 96-1229, dated 7 November 1996. Local competition, Telecom Decision CRTC 97-8, dated 1 May 1997, Telecom Decision CRTC 2001-193, Telecom Decision 2007-48 as may be modified from time to time. Customer is prohibited from: (a) using the Service or the Hardware for auto-dialing, continuous or extensive call forwarding, telemarketing, fax or voicemail broadcasting or fax or voicemail “blasting”; (b) using the Service or Hardware in any way that is improper or inappropriate, including in a manner that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy rights, or any similar behaviour; (c) using the Service or the Hardware to impersonate another person; send bulk unsolicited messages; use robots, data mining techniques or other automated devices or programs to catalogue, download, store or otherwise reproduce or distribute information from the Service or use any such automated means to manipulate the Service; or (d) using the Service to violate any law, rule or regulation; violate, infringe or misappropriate any third party's intellectual property rights or privacy rights; or exceed Customer’s permitted access to the Service (collectively, the “Prohibited Activities”). ThinkTel reserves the right to immediately disconnect or suspend the Service (a) for fraud detection purposes if ThinkTel determines, acting reasonably, that Customer’s use of the Service is, or at any time was, materially different from its normal usage patterns for the Service, or (b) if the Customer has at any time used the Service or the Hardware for any of the Prohibited Activities. Customer shall not resell the Service, including the Hardware used by Customer in connection with its use of the Service, to another party without ThinkTel’s prior written consent. Furthermore, Customer shall not change the electronic serial number or Hardware identifier of the Hardware or perform a factory reset of the Hardware without ThinkTel’s prior written consent. ThinkTel reserves the right to disconnect the Service if ThinkTel believes, acting reasonably, that Customer has tampered with the Hardware. In the event of such disconnection, Customer will remain responsible for all charges through to the end of the current Service Term, including unbilled charges, plus a disconnection fee, if applicable, all of which will immediately be due and payable. Customer shall not attempt to “hack” or otherwise disrupt the Service.
1.3 Hardware. ThinkTel may either sell or lease Hardware to the Customer pursuant to a service schedule or other agreement between ThinkTel and Customer. If Customer owns the Hardware it shall bear all risk of loss of, theft of, casualty to or damage to the Hardware, once it is shipped to Customer. Customer shall be responsible for its use of the Hardware in connection with the Service.
1.4 Stolen Hardware; Fraudulent Use of Service. Customer agrees to immediately notify ThinkTel in writing (email is acceptable) in the event the Hardware is lost or stolen. The Customer acknowledges liability for all incurred service charges until notification of lost or stolen Hardware has been confirmed to be received by ThinkTel. The Customer understands and recognizes their responsibility in safe-guarding the Service and Hardware against unauthorized use. In the event of unauthorized use of the Service and/or Hardware, the Customer acknowledges their liability for all service charges incurred and will immediately take the necessary measures to terminate and prevent future unauthorized use of the Service and/or Hardware.The Customer must familiarize himself with the toll fraud prevention guidelines available at: www.thinktel.ca/en/fraud.
1.5 Violation of Agreement. Subject to applicable law, ThinkTel may, without obligation, monitor use of the Service for violations of the Agreement. ThinkTel may remove or block any or all communications if ThinkTel has reason to believe that a violation of this Agreement has occurred or if ThinkTel deems it necessary in order to protect the integrity of the Service, as it relates to its use by other ThinkTel customers or otherwise, or ThinkTel, its affiliates, and their respective directors, officers, agents and employees from harm. ThinkTel reserves the right to immediately disconnect the Service without notice, if, in the reasonable exercise of its discretion, ThinkTel determines that Customer has used the Service or the Hardware for an unlawful purpose or in any of the ways mentioned above. In the event of such disconnection Customer will be responsible for all fees and charges due under this Agreement, including a disconnection fee, if applicable, all of which will be immediately due and payable.
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. The Service is designed to work with unencumbered, high-speed Internet connections. However, if the high-speed Internet connection Customer is using is not within ThinkTel’s network coverage area, and/or 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 Customer is permitted by such jurisdictions or by such ISP. Customer will be solely responsible for any violations of local laws and regulations resulting from such use. ThinkTel reserves the right to disconnect the Service immediately if ThinkTel determines, acting reasonably, that 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 IP Rights in Service. The Service and Hardware and any firmware or software used to provide the Service or provided to 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. 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 Customer any right or license to use the same. 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 Fixed Term – Charges. If Customer is purchasing the Service for a defined term of twelve (12) months or longer (“Fixed Term”), and Customer attempts to disconnect Service prior to the end of the Fixed Term, Customer will be responsible for all charges relating to the Fixed Term, including unbilled charges, plus a disconnection fee, if applicable, all of which will immediately become due and payable. These charges shall not apply to any Customer who purchases the Service on a month-to month basis.
1.9 Porting Numbers to New Service Provider. If Customer requests its new service provider to port a number from ThinkTel and Customer has multiple numbers assigned to its account, Customer is required to inform ThinkTel of its intent to terminate all the Services on Customer’s account, prior to the successful completion of the requested port or ThinkTel will select the most appropriate billing plan for any remaining Service, and Customer will continue to be responsible for all the charges and fees associated with the remaining Service. Once the port of the requested number has been completed, Customer will remain responsible for all charges and fees through to the end of that billing cycle, including any cancellation fees applicable to the ported number.
1.10 Phone Numbers. The phone numbers Customer obtains from ThinkTel will not be listed in any telephone directories. Phone numbers transferred from Customer’s local phone company to ThinkTel may however be listed. As a result, someone with Customer’s phone number may not be able to utilize a reverse directory to locate Customer’s listed address. Customer does not own or have any property rights in any phone number assigned to it by ThinkTel in connection with the Service. ThinkTel shall be entitled to change any such number where ThinkTel determines, in its sole discretion, that such a change is necessary. ThinkTel shall give Customer reasonable advance written notice of such a change, except in cases of emergency, where verbal notice shall be given, which will be followed by a written explanation as soon as is reasonably possible. ThinkTel is not liable for any costs, damages or other amounts resulting from changes to phone numbers.
1.11 Compatibility – Security Systems and Broadband Services. The Service may not be compatible with some security systems. Customer may be required to maintain a telephone connection through Customer’s local exchange carrier in order to use any alarm monitoring functions for any security system. Customer is responsible for contacting the alarm monitoring company to test the compatibility of any security system with the Service. In addition, 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 the Service will be compatible with all broadband services and expressly disclaims any express or implied warranties or conditions regarding the compatibility of the Service with any particular broadband service. The Service does not support operator assisted calling (including, without limitation, collect calls, third party billing calls, 900 or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911, which is provided in Section 3 of this Agreement, and 411) services in one or more (or all) service areas. Service delivery is subject to availability of suitable facilities necessary to provide the Service.
2. BILLING; TERMINATION
2.1 Charges, Taxes and Late Payment. The Customer shall pay all applicable charges in respect of the Service without set-off and all applicable federal, provincial, local and other taxes, fees and charges that arise from or as a result of Customer’s use of the Service Such amounts are in addition to payment for the Service and will be billed to Customer. Invoices will be rendered monthly and payment shall be made in full by the Customer within thirty (30) days of the date of the invoice. Charges based upon actual use of the Service shall be invoiced in the month following the month in which the charges were incurred. Customer must notify ThinkTel in writing within thirty (30) days of the billing date if it disputes any charges on that bill or Customer will be deemed to have 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 an invoice therefor. ThinkTel reserves the right to suspend, restrict or discontinue any or all of the Service should any amount remain unpaid seventy-five (75) days after the billing date, and charge a $75.00 reconnection charge. 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 hereunder, as invoiced, or the Customer fails to make any payment for service rendered by ThinkTel or any of its affiliates; (b) the Customer fails to perform or observe any covenant or agreement to be performed or observed by it hereunder or in any other agreement with ThinkTel or any of its affiliates relating to the Service; (c) ThinkTel determines, in its sole discretion, that the Customer is an unacceptable credit risk; (d) the Customer uses, or permits one of its end users to use, the Service in a manner that adversely affects the provision by ThinkTel or its affiliates of the Service to another customer in any way whatsoever or to prevent damage or degradation to ThinkTel’s network or any service components, 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 for disconnection and for reconnection, if applicable. Each and all of the rights and remedies of ThinkTel hereunder are cumulative to, and not in lieu of, other rights and remedies afforded by law and equity. If Service is disconnected for reason of Customer’s breach of this Agreement, 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 Customer’s consent, with any credit/consumer reporting agency and financial institution relating to Customer’s nonpayment of its accounts under this Agreement.
2.3 Customer Termination – Fixed Term. Where Customer has a fixed term for the Service under a Service schedule, Customer may terminate the Service at any time by giving ThinkTel 60 days notice of its intention to terminate. Should Customer exercise its right to terminate the Service for its convenience, Customer shall be responsible for paying 50% of the outstanding fees associated with the remaining term set forth in the applicable Service schedule. The Customer agrees that payment of these termination fees is enforceable and that the termination fee constitutes a genuine pre-estimate of damages to ThinkTel resulting from Customer’s termination for convenience prior to the end of the fixed term and is not a penalty.
3. 911 SERVICE
3.1 Activation and Nature of 911 Service. ThinkTel’s 911 Service is available upon Service activation. Applicable 911 fees are charged as of the Service activation date. The 911 Service provided by ThinkTel differs in a number of important ways from traditional 911 or E911 dialing available with most traditional telephone services – and has specific limitations relative to Enhanced 911 (E911).
3.2 E911 vs. Basic 911 Service. When placing a call to emergency services with E911 or Enhanced 911, the end user’s telephone number and location are automatically transmitted to the operator during the call. With Basic 911 (B911), the end user’s telephone number and location are not automatically transmitted to the operator. The operator at the answering location verbally obtains the pertinent information that identifies the caller’s need and physical location. The operator then determines the appropriate agency and transfers the caller. ThinkTel provides a basic 911 type service.
3.3 911 Service Description. When the end user dials 911, the end user’s call is routed from the ThinkTel network to our emergency services operator. The end user will need to confirm with the operator that they are still located at the address Customer or the end user has registered with ThinkTel. If the end user calls from a location other than the address registered with ThinkTel, the end user will need to provide our operator with a current address or location. The operator will then determine the appropriate emergency agency and transfer the end user’s call accordingly. There may be an additional delay to transfer the end user’s emergency service call to areas not served by traditional 911. When the end user dials 911, they are not to hang up unless told to do so by our operator or the emergency service attendant. If the call is disconnected prematurely, the end user will need to call back to re-establish a connection with the emergency services. Customer must provide ThinkTel with the service address for each activated / ported DID and/or charge number as applicable and ensure each location information is kept current at all times. Only DIDs and/or charge numbers that are provisioned with ThinkTel and have applicable fees paid may be used as the Calling Party ID for 911 calls. The use of any other DID or charge number is a license violation and a public safety hazard. In the event the end user is unable to speak during a 911 call, our operator will automatically dispatch emergency services to the address registered on file. If the end user dials 911 when they are outside of Canada or the United States, our emergency services operator will advise them to hang up and find a local phone line and dial the appropriate emergency services (it may not be 911).
3.4 Power or Broadband Outage. A power failure or disruption may require the end user to reset or reconfigure equipment prior to using the service. Power disruptions or failures or ISP (Internet Service provider) outages or partial outages or service suspension/disconnection, are likely to prevent dialing to emergency service numbers including 911. In the events listed above the end user may need to access a traditional phone or cellular phone to make an emergency call. The customer acknowledges and understands that in the event of an outage, malfunction or any other unavailability of their Internet connection or related equipment, including without limitations, improper modification or any tampering with their computer or related software or hardware, the service may not function; the customer will continue to be billed for the service until the customer or ThinkTel terminate the service in accordance with this Agreement. WARNING: Power disruptions or failures, Internet Service Provider (ISP) outages or unavailability and tampering with the equipment will likely prevent dialing to emergency service numbers including 911.
3.5 Informing Others of the 911 Service Limitations. Customer should inform any persons who may be present at the physical location where Customer utilizes the Service of the limitations of ThinkTel’s 911 Service as compared with traditional 911 service, as set out above. If Customer is not comfortable with the limitations of ThinkTel’s 911 Service, Customer should have alternate means of accessing traditional 911 services.
4. LIABILITY
4.1 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 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 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.
4.2 911 Service – Exclusion of Liability. NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT, CUSTOMER ACKNOWLEDGES AND AGREES THAT THINKTEL, ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, WILL NOT BE LIABLE FOR ANY INJURY, DEATH OR DAMAGE TO REAL OR PERSONAL PROPERTY ARISING DIRECTLY OR INDIRECTLY OUT OF, OR RELATING IN ANY WAY TO THE PROVISION OF 911 SERVICES AND/OR EMERGENCY 911 BY THINKTEL INCLUDING WITHOUT LIMITATION ANY INABILITY ON THE PART OF CUSTOMER OR ITS END USERS TO ACCESS 911 SERVICE AND/OR EMERGENCY 911, OR TO HAVE ACCESS TO EMERGENCY SERVICE PERSONNEL IN THE EVENT OF A SERVICE DISRUPTION FOR ANY REASON WHATEVER, UNLESS IT IS PROVEN THAT THE ACT OR OMMISSION PROXIMATELY CAUSING THE CLAIM, DAMAGE, OR LOSS CONSTITUTES GROSS NEGLIGENCE, RECKLESSNESS, OR INTENTIONAL MISCONDUCT ON THE PART OF THINKTEL.
4.3 Customer Indemnity. 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, 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, including 911 dialling and/or inability of the Customer or any third party or user of the Service to be able to dial 911 or to have access to emergency service personnel, as well as any misroutes of 911 calls.
4.4 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.
4.5 Hardware – Third Party Warranty Only. If the Hardware that has been sold or leased to Customer by ThinkTel, or its designate, for use in connection with the Service included a limited warranty at the time of receipt, 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 CUSTOMER’S HARDWARE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, 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, 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 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.
4.6 Liability for Content. Customer will be responsible for any and all liability that may arise out of the content transmitted by or to Customer or from any person using the Service or Hardware, or both (each such person, a "User"). 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 Customer or others. ThinkTel’s action or inaction under this Section will not constitute any review or approval of Customer’s or its Users' use of the Service or Hardware, including the content that may be transmitted using the Service or Hardware, or both.
4.7 Customer Release. Customer hereby releases ThinkTel from any and all obligations, liabilities and claims in excess of the limitations set forth in this Section 4.
5. GENERAL PROVISIONS
5.1 Amendments; Entire Agreement. This Agreement, and any attached Appendices, may not be modified or amended except in writing and signed by both parties. However, 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 not require the parties’ signatures to be legally binding upon the parties and immediately form part of the Agreement when ThinkTel provides the customer with a copy of same to the addresses listed in the attached service schedule(s). This Agreement, including any amendments to it, and the pricing for Service noted in the service schedule(s) that are either attached to or incorporated constitute the entire agreement between Customer and ThinkTel and governs the use of the Service by Customer and its authorized end users. This Agreement supersedes any prior agreements between Customer and ThinkTel and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
5.2 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.
5.3 Survival. The provisions of this Agreement that by their nature are intended to survive the termination or expiration of this Agreement shall survive.
5.4 No Contra Proferentem. No presumption shall operate in favour of or against either party as a result of any responsibility that either party may have had for drafting this Agreement.
5.5 Assignment. This Agreement and the rights and obligations hereunder may not be assigned in whole or in part by Customer without the prior written consent of ThinkTel. 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; Dispute Resolution. The Agreement and the relationship between Customer and ThinkTel is governed by the laws of the Province of Alberta and the federal laws of Canada applicable therein without regard to its conflict of law provisions. Any dispute between the parties concerning any matter arising under this Agreement shall be submitted to arbitration (except where a party is seeking injunctive or other equitable relief), in accordance with the provisions of the Arbitration Act (Alberta) (the “Act”), and the arbitration award shall be final and binding on the parties. The parties shall appoint a single arbitrator who shall have such technical and other qualifications as may be reasonably necessary to enable the arbitrator to properly adjudicate upon the matter. The arbitration shall be conducted in Edmonton, Alberta unless otherwise agreed by the parties and, except as modified by this Section, in accordance with the Act. The arbitration proceedings shall be confidential and all expenses of the arbitration shall be shared equally by the parties.
5.9 Privacy. The Service utilizes, in whole or in part, the Internet and third party networks to transmit voice and other communications and the Customer is responsible for the security of these transmissions. As a result, ThinkTel is not liable for any lack of privacy which may be experienced with regard to the Service. To the extent that personal information is provided in connection with this Agreement, Customer confirms that it consents, and that all necessary consents have been obtained, to the collection, use and disclosure by ThinkTel and its affiliates, and their respective directors, employees, officers, agents and contractors for the following purposes: (i) providing Service and other products and service 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, if any, in accordance with its privacy policy 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 Notices. Any notices to be given hereunder shall be given by personal delivery, by certified mail, return receipt requested, or by recognized express courier. Notice shall be deemed to have been given upon receipt if personally delivered or upon three (3) days if delivered by certified mail. Notice shall be given to the respective party at the addresses listed in the attached service schedule(s).
5.13 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.
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