1.1 Providing Service. Provider shall use commercially reasonable efforts to provide the Service to The Customer. Further, Provider 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-dialling, continuous or extensive call forwarding, telemarketing, sending bulk messages, fax or voicemail broadcasting without prior written permission from Provider; (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 the ability of Provider 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 Provider (collectively, the “Prohibited Activities”).

1.4 Hardware. Provider is not responsible for the loss or damage of any hardware, equipment or devices through the Customer use of the Provider services.

1.5 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 Provider. In the absence of termination orders from The Customer, Provider 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.

1.6 Telephone Numbers. The telephone numbers that Provider 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 Provider in conjunction with the Service. Provider shall be entitled to change any such telephone number where Provider determines, in its sole discretion, that such a change is necessary. Provider 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. Provider is not liable for any costs, damages or other amounts resulting from changes to telephone numbers.

1.7 Compatibility – Security Systems and Broadband Services. The Customer may have security systems that are incompatible with Provider 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. Provider 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 broadband service with Provider 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.

BILLING & TERMINATION

2.1 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 Provider 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. Provider 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. Provider 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 Provider; (c) Provider 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, Provider 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, Provider will provide notice to The Customer and perform disconnection of Primary Exchange Services in accordance with the Commission for Complaints for Telecom-television 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.

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.

911 SERVICE

3.1 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 Provider 911 service.

Activation and Nature of 911 Service. Provider 911 service is available upon Service activation. Applicable 911 fees are charged as of the service activation date. The 911 service provided by Provider 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).

E911 vs. Basic 911 Service. When placing a call to emergency services with E911 or Enhanced 911 the user’s telephone number and location are automatically transmitted to the operator during the call. With Basic 911 (B911) the 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. Provider provides a basic 911 type service.

911 Service Description. When the user dials 911 the user’s call is routed from the Provider network to our emergency services operator. The user will need to confirm with the operator that they are still located at the address the Customer has registered with Provider. If the user calls from a location other than the address registered with Provider, the 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 user’s call accordingly. There may be an additional delay to transfer the user’s emergency service call to areas not served by traditional 911. When the 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 user will need to call back to re-establish a connection with the emergency services. The Customer must provide Provider with the service address for each activated and/or 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 Provider 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 constitutes a violation of this Agreement and a public safety hazard. In the event the user is unable to speak during a 911 call our operator will automatically dispatch emergency services to the address registered on file. If the 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 telephone line and dial the appropriate emergency services (it may not be 911).

Power or Broadband Outage. A power failure or disruption may require The Customer 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 a user may need to access a traditional telephone or cellular telephone to make an emergency call. The Customer acknowledges 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 Provider terminate the service in accordance with this Agreement.

Informing Others of the 911 Service Limitations. The Customer must inform users and potential users of the limitations of Provider VoIP 911 service as compared with traditional 911 service, as set out above. If a user is not comfortable with the limitations of Provider VoIP 911 service, The Customer should arrange an alternate means of accessing traditional 911 services.

Limitation of Liability and Indemnification Pertaining to 911 Service. Neither Provider, its affiliates or any of their respective officers, directors, employees, or agents may be held liable for (i) any claim, damage, or loss (including but not limited to profit loss), or (ii) any damage as a result of service outage, data loss. The Customer hereby waives any and all such claims or causes of action, arising from or relating to any service outage and/or inability to dial 911 from his Customer telephone line or to access emergency service personnel unless it is proven that the act or omission proximately causing the claim, damage, or loss constitutes gross negligence, recklessness, or intentional misconduct on the part of Provider. Subject to the provisions of this agreement, Provider does not provide any other warranties of any kind either express or implied, including without limitation the warranties of merchantability and fitness for a purpose. The Customer agrees to defend, indemnify, and hold harmless Provider, its affiliates, and their respective officers, directors, employees, agents, legal representatives and any other service provider that offers services to the Customer or Provider in relation with the present agreement or the service provided, from any and all claims, losses, damages, fines, penalties, costs, expenses, legal fees, etc., by, or on behalf of, the Customer, any third party or user of the Customers’ service relating to the absence, failure or outage of the service, including 911 dialling and/or inability of the Customer or any third party or user of their service to be able to dial 911 or to have access to emergency service personnel, as well as any misrouting of 911 calls.

VoIP 911 Service – User Tips

* In an emergency, dial 911 to reach an emergency centre operator.
* Be prepared to provide your physical location, call-back number, and nature of the emergency.
* Do not hang up unless instructed by the call centre operator.
* If you get disconnected, please redial 911. The operator, if they have your number, will also attempt to call you back.
* Ensure that your VoIP service and Internet service is configured and initialized correctly.
* Inform all other users and potential users of the limitations of VoIP 911 service and about these user tips.
* Display the VoIP 911 warning sticker on the telephone set or in a location that is clearly visible to all users and potential users.

LIABILITY

4.1 Limitation and Exclusions. Provider 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. Provider 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 PROVIDER, 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 PROVIDER’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 PROVIDER WAS INFORMED OF THE LIKELIHOOD OF ANY DAMAGES.

4.2 Customer Indemnity. The Customer shall defend, indemnify, and hold harmless Provider, its affiliates, and their respective officers, directors, employees, agents, and any other service provider who offers services to The Customer or Provider 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, PROVIDER 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, PROVIDER 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 PROVIDER, ITS AFFILIATES NOR ANY OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO PROVIDER 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 PROVIDER’S NEGLIGENT STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR HARDWARE

5.0 GENERAL PROVISIONS

5.1 Regulatory compliance. Provider 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 Provider 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 Provider unless the assignment is pursuant to the sale of all or substantially all the assets or shares of The Customer in which case The Customer shall provide Provider ten (10) days written, acknowledged, notice of such assignment. Provider may assign all or any of its rights or obligations under this Agreement: (a) to an affiliate; (b) to a successor in interest of Provider; or (c) as part of a corporate reorganization, amalgamation, consolidation or merger; without obtaining the prior written consent of The Customer. This Agreement shall ensure to and be binding upon the parties and their respective successors and assigns.

5.6 No Waiver. Failure by Provider to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.

5.7 Governing Law. The Agreement and the relationship between The Customer and Provider is governed by the laws of the Province of British Columbia and the laws of Canada applicable therein without regard to its conflict of law provisions.

5.8 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 Provider 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. Provider only collects, uses and discloses the personal information of its customers in accordance with its privacy policy at the time of collection as per above.

5.9 Force Majeure. If Provider 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.

5.10 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.

5.11 Language. Il est convenu par le present acte que les parties demandent que ce contrat et tout avis, consentement, autorisation, communication et approbation soient rediges 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.