This is an agreement ("Agreement") between Infinet Communications Group Inc. dba Digital Voice™ ("we," "us" or " Digital Voice™") and the user ("you," "user" or "Customer") of Digital Voice™'s communications services ("Service") and any IP adapter or gateway devices, ("Device" or "Equipment") used to provide the Service. VoIP Hiway is an authorized reseller of Digital Voice. BY ACTIVATING OR USING THE SERVICE, YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ AND UNDERSTAND FULLY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. EMERGENCY SERVICES- 911 DIALING
1.1 Non-Availability of Traditional 911 or E911 Dialing Service.
VoIP services allow you to make or receive telephone calls over the Internet. The nature of VoIP telephone calls, while appearing similar to traditional telephone calling services, create unique limitations and circumstances. You acknowledge and agree that differences exist between traditional telephone service and VoIP telephone services, including the lack of traditional 911 emergency services. Because of the unique nature of VoIP telephone calls, emergency calls to 911 through your VoIP service will be handled differently than traditional phone service.
The 911 Dialing feature of the Service is different in a number of important ways from traditional 911 or E911 service as described herein and on our website page for 911 Dialing under "Features," and below. You shall inform any household residents, guests and other third persons who may be present at the physical location where you utilize the Service of (i) the non-availability of traditional 911 or E911, and (ii) the important differences in and limitations of the Digital Voice™ 911 Dialing feature as compared with traditional 911 or E911 dialing. The documentation that accompanies each Device that you purchase should include a sticker concerning the potential non-availability of traditional 911 or E911 dialing (the "911 Sticker"). It is your responsibility, in accordance with the instructions that accompany each Device, to place the 911 Sticker on each Device that you use with the Service. If you did not receive a 911 Sticker with your Device, or you require additional 911 Stickers, please contact our customer care department at 1-877-229-0578 x 33.
1.2 Registration of Physical Location Required.
For each phone number that you use for the Service, you must register with Digital Voice™ the physical location where you will be using the Service with that phone number. Failure to register your physical location may result in suspension of your service as per section 3.4. When you move the Device to another location, you must register your new location. If you do not register your new location, any call you make using the 911 Dialing feature may be sent to an emergency center near your old address. Please note that if you are updating your billing or shipping address, you will need to specify that you also wish to update your 911 registered address at the same time. You will register your initial location of use when you subscribe to the Service. Thereafter, you may register a new location by following the instructions from the "911" registration link on your Digital Voice™ web account page. For purposes of the 911 Dialing feature, you may only register one location at a time for each phone line you use with the Service. Please note that when you update your 911 registered address, it may take up to 72 hours for that update to complete. You should not consider an update successful unless and until you receive an email from us confirming the new 911 Dialing registered address for that phone line.
1.3 Re-Activation Required if You Change Your Number or Add or Port New Numbers.
If you change your phone number or if you add or port new phone numbers to your account, you will need to check that your 911 registered address is correctly updated to your new number. Failure to do so may result in 911 calls misdirected to an old or incorrect address.
1.4 How Emergency Personnel are Contacted.
We contract with a third party to use the address of your registered location to determine the nearest emergency response center and then forward your call to a general number at that center. When the center receives your call, the operator may not have your address and may not have your phone number. You may therefore be asked to provide your address and phone number in order to get help. You hereby authorize us to disclose your name and address to third-party service providers, including, without limitation, call routers, call centers and public service answering points, for the purpose of dispatching emergency services personnel to your registered location.
1.5 During a 911 emergency call
When you are on a 911 emergency call, you must not disconnect the call until told to do so by the dispatcher, as the dispatcher may not have your number or contact or address information, or may want to verify any such information that they may have. If you are inadvertently disconnected, you must call back immediately. Failure to do so may result in emergency services misdirected to an old or incorrect address, or possibly not sent at all when no address information is available.
1.6 Service Outages.
(a)Service Outages Due to Power Failure or Disruption. 911 Dialing does not function in the event of a power failure or disruption at your location or our servers location or both. If there is an interruption in the power supply, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to utilizing the Service.
(b)Service Outages Due to Internet Outage or Suspension or Termination of Broadband Service or ISP Service. Service outages or suspensions or terminations of service by your broadband provider or ISP will prevent all Service, including 911 Dialing, from functioning.
(c)Service Outage Due to Suspension or Termination of Your Digital Voice™ Account. Service outages due to suspension or termination of your account will prevent all Service, including 911 Dialing, from functioning.
(d)Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts. Your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. In that event, provided that you alert us to this situation, we will attempt to work with you to resolve the issue. During the period that the ports are being blocked or your Service is impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Service, including the 911 Dialing feature, may not function. You acknowledge that Digital Voice™ is not responsible for the blocking of ports by your ISP or broadband provider or any other impediment to your usage of the Service, and any loss of service, including 911 Dialing, that may result. In the event you lose service as a result of blocking of ports or any other impediment to your usage of the Service, you will continue to be responsible for payment of the Service charges unless and until you terminate the Service in accordance with this Agreement.
(e)Service Outages Due to any failures that may arise from the facilities or equipment used by Digital Voice™ or other telecommunications service providers with whom Digital Voice™ is interconnected ("other providers"). This includes any acts, mistakes, omissions, interruptions, delays, errors, defects or misrouting of communication by Digital Voice™ or other providers. Such outages may affect or prevent all Service, including 911 Dialing, from functioning.
(f)Other Service Outages. If there is a Service outage for any reason, such outage will prevent all Service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement.
1.7 Network Congestion, Reduced Speed for Routing or Answering 911 Dialing Calls.
There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Service as compared to traditional 911 dialing over traditional public telephone networks.
1.8 Possible Lack of Automatic Number Identification.
It may or may not be possible for the local emergency personnel to automatically obtain your phone number when you use 911 Dialing. Our system is configured to send the automatic number identification information; however, one or more telephone companies, not us, route the traffic to the emergency response center and that center may not be capable of receiving and passing on that information. As a result, the operator who answers your 911 Dialing call may not be able to automatically obtain your phone number and call you back if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your phone number, or if the Service is not operational for any reason.
1.9 No Automated Location Identification.
In most service areas, it is not possible at this time to transmit to the local emergency response center the address that you registered for 911 Dialing. You will need to state the nature of your emergency promptly and clearly, including your location (and possibly your telephone number), as the operator will not have this information. Emergency personnel will not be able to find your location if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your location, or if the Service is not operational for any reason.
1.10 Disclaimer of Liability and Indemnification.
We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither Digital Voice™ nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 911 Dialing service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless Digital Voice™, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel.
1.11 Alternate 911 Arrangements.
If you are not comfortable with the limitations of the 911 Dialing service, you should consider having an alternate means of accessing traditional 911 or E911 services or terminating the Service.
2. SERVICE
2.1 Term
Except for customers on one year contract, this Agreement will automatically renew on a monthly basis for customers on monthly billing cycles and on a 6-month basis for customers on 6-month billing cycles, as described in section 3.1. You will be responsible for additional full charges for the entire billing cycle, including, without limitation, all unbilled usage charges if applicable, all of which will immediately become due and payable, unless you provide written notice of cancellation to Digital Voice at least ten (10) days before the end of your current term.
Customers on one year contract may cancel Service before the end of the one (1) month free trial (if customer received a free trial), or after twelve (12) months of the Activation Date without penalty. If Customer on one year contract cancels the Service for any reason after the one (1) month free trial and before twelve (12) months of service, a $50 cancellation fee will be applied upon cancellation. After the one-year contract ends, customer may retain the contract pricing but will revert to a monthly term and monthly billing cycle as per above.
Digital Voice will pursue collection for unpaid amounts or disconnected accounts and may report to credit bureaus.
2.2.1 Residential Use
If you are subscribing to Digital Voice™'s Residential services, the Service and Device are provided to you as a residential user, for your personal, residential, non-business and non-professional use. You cannot use the Service or Device for any commercial or governmental activities, profit-making or non-profit, including but not limited to home office, business, sales, tele-commuting, telemarketing (including without limitation charitable or political solicitation or polling), autodialing, continuous or extensive call forwarding, bulk faxing or any other commercial activities. You cannot resell or transfer the Service or the Device to any other person for any purpose, or make any charge for the use of the Service. Digital Voice™ reserves the right to immediately terminate or modify the Service, if Digital Voice™ determines, in its sole discretion, that Customer's Service is being used for non-residential or commercial use.
2.2.2 Business Use
If you are subscribing to Digital Voice™'s Small Business services, the Service and Device are provided to you as a small business user. You cannot resell or transfer the Service or the Device to any other person for any purpose, or make any charge for the use of the Service. You cannot use the Service or the Device for auto-dialing, continuous or extensive call forwarding, telemarketing (including without limitation charitable or political solicitation or polling), bulk faxing or any other activity that will result in excessive use of the Service. Digital Voice™ reserves the right to immediately terminate or modify the Service, if Digital Voice™ determines, in its sole discretion, that Customer's Service is being used for any of the aforementioned activities.
2.3 Prohibited Use of Service and Device
Digital Voice™ reserves the right to terminate your Service without notice if you violate any of the following acceptable use policies.
2.3.1 Compliance to Local Laws
You cannot to use Digital Voice™ Service and Device for transmitting or receiving any communication or material of any kind that would (i) constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. Digital Voice™ reserves the right to terminate your service immediately and without advance notice if Digital Voice™, in its sole discretion, believes that you have violated any of the above restrictions. You further agree that Digital Voice™ may forward your personal information or any communications you made through Digital Voice™ to appropriate authorities for investigation and prosecution if we believe that you have violated any of the above restrictions. You agree to indemnify and hold harmless Digital Voice™ against any liability resulting from misuse of your Service and Device.
2.3.2 Unauthorized Use of Firmware or Software
Any Device provide to you will contain firmware or software protected by trademark, copyright or other intellectual property laws. You agree to use the firmware or software only to receive the Service. Digital Voice™ will not provide any passwords, codes or other information or assistance that would allow you to use the Device for any other purpose.
You will not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
2.3.3 Unauthorized Use of Device or Service
You will not erase or modify any serial numbers or equipment identifiers on the Device. You will not perform a factory reset of the Device.
2.4 Loss of Power or Internet Access
You acknowledge and understand that the Service does not function in the event of power failure and that the Service requires a fully functional broadband connection to the Internet (which is not provided by Digital Voice™). In the event that there is an interruption of service by your Internet service provider ("ISP"), you will continue to be billed for the Service until you terminate the Service in accordance with this Agreement.
2.5 Theft of Service
You agree to notify Digital Voice™ immediately, in writing or by calling the Digital Voice™ customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen or fraudulently used. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft or fraudulent use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. Until such time as Digital Voice™ receives notice of the theft or fraudulent use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen Service or fraudulent use of the Service.
2.6 Service Difference
You acknowledge and understand that the Service is not the same as telephone service. The Service is subject to different regulatory treatment than telephone service. This treatment may limit or otherwise affect your rights of redress before Federal or Provincial telecommunications regulatory agencies.
2.7 Long Distance
You acknowledge and understand that Long Distance is a best-effort-only service, as available from our various long distance suppliers. You acknowledge and understand that our add-on long distance plans may not include calls to some premium or mobile numbers. You should check if the destination you are calling is covered under a long distance plan, at http://www.voiphiway.ca/check_ldcgroup.php. We also reserve the right at any time to change our long distance rates and/or long distance coverage in add-on long distance plans. Any changes will be posted online at our website. It is your responsibility to check for any such changes to long distance rates and coverage.
2.8 Number Transfers (also called Number Porting, or Local Number Porting)
If you are transferring a number from another company in to us, please note that the transfer process is defined by the CRTC and will require several steps on your part. You will be provided an email with instructions on the process and your involvement.
If you are transferring a Digital Voice™ number out to another company and wish to cancel your service with us, you acknowledge that you will still need to contact us to cancel your service as per the terms of this agreement.
3. CHARGES / PAYMENTS / DEFAULT / TAXES / TERMINATION
3.1 Billing
Upon service activation, you agree to provide us a valid email address and your credit card or pre-authorized bank account information to be stored on file. If you choose to have your monthly bill deducted from your bank account directly each month, a $50.00 security deposit is REQUIRED for this option, to be charged to your credit card at signup. You must fax a copy of VOID check to 604-606-7886, or 1-866-816-7943 after your account is activated. We reserve the right to refuse payment information (credit card or pre-authorization payment bank account information) from select issuers. All amounts due will be charged to your credit card.
The default billing cycle is every month. You may request to change the billing cycle to be every 6-months. If your account is on a 6-month billing cycle, when the cycle ends, a new 6-month cycle will automatically commence.
You may request for your billing cycle to switch back to a monthly cycle, but this switch will occur after the current 6-month cycle ends. Alternatively, you may request for the current 6-month cycle to be immediately switched to a monthly cycle, but a $50 administration fee will be applied for such an immediate switch.
All charges, applicable taxes and surcharges will be billed in advance, at the start of each cycle. Usage-based charges will be billed monthly in arrears, regardless of billing cycle.
If the card expires, you close your account, your billing address changes, or the card is cancelled and replaced for any reason, you must advise us immediately or update your credit card file through our website.
In the case of pre-authorized payments through your bank account: if your bank account changes, or you close your account, you must advise our billing center.
Notification of invoices will be sent to you via your email address on file with us. We reserve the right to bill at more frequent intervals if the amount you owe to us at any time exceeds $50 or the credit limit preset on your account. Digital Voice™ bills usage charges in full minute increments that are rounded up to the next full minute.
The above fees and charges are defined as follows:
- Device Deposit - A CAD$50 fee will be charged as security deposit if you choose a device rental option at service activation. This deposit is fully refundable upon return of the Device, in original salable condition, after you cancel your account. A partial deposit may be issued for accounts with discounted monthly fees, loyalty accounts, or accounts where the hardware rental fee has been waived. The total amount of discounts applied will be subtracted from the deposit before refund.
- Monthly Service Fee - This is the basic charge associated with your service. This fee includes the calling charges defined by your plan, the features associated with your plan and basic account services.
- Usage Charges - If you exceed the number of calling minutes on your plan, we will bill you for the minutes you use above your allowance. We also bill for calls to directory assistance and other information services.
- Long Distance Usage Charges - These are the fees associated with calls to locations outside the local calling area of your assigned Digital Voice™ phone number or unlimited calling areas as specified in your plan.
- Advanced Features, Add-Ons, Premium Services - These are additional fees for enhanced features and services such as Toll Free.
- Equipment Purchases - These are for VOIP adapter and router equipment associated with VOIP service if you choose a device purchase option at service activation.
- Regulatory Recovery Fee - A regulatory recovery surcharge of $1.50 applies to each phone number for regulatory-related fees and expenses, including taxes, number portability charges, and related legal fees.
3.2 Billing Disputes
You must notify Digital Voice™ in writing within 7 days after receiving your credit card statement if you dispute any Digital Voice™ charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following:
Any chargebacks performed via your credit card institution or NSF fees charged by your bank will not relieve you of any responsibility to pay for your account. We reserve the right to process a chargeback or NSF fee of $20, and may take further action against your account, and if necessary report you to a credit bureau.
3.3 Payment
Digital Voice™ accepts payments only by credit card or pre authorized payment as set forth in Section 3.1. Your initial use of the Service authorizes Digital Voice™ to charge the credit card account number on file with Digital Voice™, including any changed information given Digital Voice™ if the card expires or is replaced, or if you substitute a different card, for Digital Voice™ charges as set forth in Section 3.1. This authorization will remain valid until 30 days after Digital Voice™ receives your written notice terminating Digital Voice™'s authority to charge your credit card, whereupon Digital Voice™ will charge you the disconnect fee and any other outstanding charges and terminate the Service. Digital Voice™ may terminate your Service at any time in its sole discretion, if any charge to your credit card on file with Digital Voice™ is declined or reversed, your credit card expires and you have not provided Digital Voice™ with a valid replacement credit card or in case of any other non-payment of account charges. Termination of Service for declined or expired card, reversed charges or non-payment leaves you FULLY LIABLE to Digital Voice™ for ALL CHARGES ACCRUED BEFORE TERMINATION and for all costs incurred by Digital Voice™ in collecting such amounts, such as (but not limited to) collection costs and attorney's fees.
3.4 Termination/Discontinuance of Service
Digital Voice™ reserves the right to suspend or discontinue providing the Service at any time in its sole discretion. If Digital Voice™ terminates the Service without reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month's charges. If your Service is terminated because you have violated the terms of this Agreement, you will be responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus any charges related to the Device.
3.5 30 Day Money Back Guarantee
If customer cancels service within 30 days of activation, Digital Voice™ will provide a refund to customers upon request. The money back guarantee applies only to the first-ordered line per account, not to additional or secondary lines. We will refund the activation fee (if any), the charge for the first month's main service (if any), and the setup fee (if any) provided that:
a) you have not exceeded 250 minutes of usage;
b) you cancel your Service within the applicable period;
c) All rental equipment is returned in the original packaging, including all components and manual within 14 days of cancellation.
d) the Device is returned in the original packaging with the UPC or bar code intact and is accompanied by all components, accessories, parts, manuals, registration cards and other documentation; and
e) Purchased equipment returned in original packaging, including components and manuals, within 30 days is fully refundable. Returns after 30 days of purchase is subject to a $25 re-stocking fee. Returns after 180 days of purchase will be non-refundable.
f) prior to returning the Device to us, you obtain a valid return cancellation number from http://www.voiphiway.ca/cancel
We do not refund any fees for shipping, network, 911, and add-on long-distance packages.
3.6 Cancellation
Customer can cancel Service by obtaining a cancellation number from http://www.voiphiway.ca/cancel and returning rental Device to us within fourteen (14) days. Cancellations are not deemed completed and service charges will continue to apply until we have received rental Device with a valid cancellation number.
Cancellations via e-mail communication is not acceptable.
3.7 Return of Rental Device
Rental Device must be returned to Digital Voice™ within fourteen (14) days of cancellation to the following address:
| |
PO Box 45055 RPO Ocean Park
Surrey, B.C.
V4A 9L1, Canada
|
Rental Device must be returned with a valid return cancellation number obtained from http://www.voiphiway.ca/cancel in the original packaging and in original working condition. It must include all components, manuals and registration card(s). If Rental Device is lost or is returned incomplete or damaged, replacement charges will apply as follows:
| | Phone adapter | - | $100 |
| | Power plug | - | $30 |
| | Power plug 2-prong clip | - | $5 |
| | Ethernet cable | - | $10 |
| | Original Cardboard Packaging | - | $5 |
You are solely responsible for the cost and risk of return shipping of Rental Device to us.
4. CHANGES TO THIS AGREEMENT
Digital Voice™ may change the terms and conditions of this Agreement at any time. Such changes will become effective and binding once posted on to the "Terms & Conditions" section of Digital Voice™'s website at http://www.voiphiway.ca and no further notice by Digital Voice™ is required.
5. WARRANTY and LIABILITY LIMITATIONS / INDEMNIFICATION
5.1 Limitation of Liability
Digital Voice™ shall not be liable for any delay or failure to provide the Service, including Long Distance calls and including 911 dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:
1) act or omission of an underlying carrier, service provider, vendor or other third party;
2) equipment, network or facility failure;
3) equipment, network or facility upgrade or modification;
4) force majeure events such as (but not limited to) acts of god; strikes; fire; war; riot; government actions;
5) equipment, network or facility shortage;
6) equipment or facility relocation;
7) service, equipment, network or facility failure caused by the loss of power to Customer;
8) outage of Customer's ISP or broadband service provider;
9) act or omission of Customer or any person using the Service or Device provided to Customer; or
10) any other cause that is beyond Digital Voice™'s control, including without limitation a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications (including without limitation 911 dialing) to be connected or completed, , or degradation of voice quality.
Digital Voice™'s aggregate liability for (i) any failure or mistake; (ii) any claim with respect to Digital Voice™'s performance or nonperformance hereunder or (iii) any Digital Voice™ act or omission in connection with the subject matter hereof shall in no event exceed Service charges with respect to the affected time period. You agree that if you choose to use an alternate carrier or other means of completing your call, Digital Voice™ will not be responsible for any costs that you may incur for said means.
5.2 Disclaimer of Damages
IN NO EVENT SHALL Digital Voice™, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO 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 BE ABLE TO DIAL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT Digital Voice™ WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
5.3 Indemnification
Customer agrees to defend, indemnify, and hold harmless Digital Voice™, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, Customer or any third party or user of Customer's Service, relating to this Agreement, the Services, including 911dialing, or the Device. This paragraph shall survive termination of this Agreement.
5.4 No Warranties on Service
Digital Voice™ MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, Digital Voice™ DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER Digital Voice™ NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO Digital Voice™'S OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF Digital Voice™'S OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY Digital Voice™ OR Digital Voice™'S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
5.5 No Warranties, or Limited Warranties, for Devices
If Customer purchased the Device new from Digital Voice™ and the Device included a limited warranty at the time of purchase, Customer must refer to the separate limited warranty document provided with the Device for information on the limitation and disclaimer of certain warranties. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation. If Customer's Device did not include a limited warranty from Digital Voice™ at the time of purchase, Customer agrees that it accepts its Device "as is" and that Customer is not entitled to replacement or refund in the event of any defect, except that for Retail Customers only, Digital Voice™ will provide a limited warranty on the Device as to manufacturing defects only for a period of one (1) year from the date of purchase. This Retail Customer limited warranty shall not apply to any defect or failure other than a manufacturing defect, and, without limiting the generality of the foregoing, shall not apply to any defect caused by damage in transit, retailer handling or Retail Customer handling. Retail Customer's sole remedy for any breach of this Retail Customer limited warranty is to obtain a repaired or replacement Device, by following the return procedures set forth in Section 1.8. Retail Customer must include with the returned Device a letter stating that the Retail Customer is returning the Device for warranty repair or replacement and stating the nature of the defect. This Retail Customer limited warranty shall also apply in lieu of the limited warranty included with the Device if such included limited warranty is less favorable to Retail Customer than that contained herein.. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, Digital Voice™ MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE, DEVICE OR ANY FIRMWARE OR SOFTWARE IS "ERROR FREE" OR WILL MEET CUSTOMER'S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE.
5.6 No Third Party Beneficiaries
No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
5.7 Content
You are liable for any and all liability that may arise out of the content transmitted by or to you or Users using the Services. You shall assure that your or User's use of the Services and content will at all times comply with all applicable laws, regulations and written and electronic instructions for use. Digital Voice™ reserves the right to terminate or suspend affected Services, and/or remove your or Users' content from the Services, if Digital Voice™ determines that such use or content doer not conform with the requirements set forth in this Agreement or interferes with Digital Voice™'s ability to provide Services to you or others or receives notice from anyone that your or Users' use or Content may violate any laws or regulations. Digital Voice™'s actions or inaction under this Section shall not constitute review or approval of your or Users' use or Content. You will indemnify and hold Digital Voice™ against any and all liability arising from the content transmitted by or to you or to Users using the Services. A "User" means any person, whether authorized or unauthorized, using the Service and/or Device provided to you.
6. GOVERNING LAW / RESOLUTION OF DISPUTES
6.1 Mandatory Arbitration
Any dispute or claim between Customer and Digital Voice™ arising out of or relating to the Service or Device provided in connection with this Agreement shall be resolved by a arbitration organization of Digital Voice™'s choosing. The arbitration shall take place in Vancouver, BC, Canada and shall be conducted in English. The arbitrator's decision shall follow the plain meaning of the relevant documents, and shall be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and Customer will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. CUSTOMER ACKNOWLEDGES THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.
6.2 Governing Law
The Agreement and the relationship between you and Digital Voice™ shall be governed by the laws of British Columbia, Canada. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 6.1, you and Digital Voice™ agree to submit to the personal and exclusive jurisdiction of the courts located within the province of British Columbia, Canada.
6.3 Entire Agreement
This Agreement and the rates for Services found on Digital Voice™'s website constitute the entire agreement between you and Digital Voice™ and govern your use of the Service, superseding any prior agreements between you and Digital Voice™ and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. No amendment to this Agreement shall be binding upon Digital Voice™ unless and until posted in accordance with Section 3 hereof.
6.4 Severability
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
6.5 Referral Commissions
Referral commission payments are issued from Infinet Communications Group Inc dba Digital Voice.
7. PRIVACY
7.1 Digital Voice™ Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Digital Voice™ is not liable for any lack of privacy which may be experienced with regard to the Service.
7.2 Our privacy policy regarding your personal information can be viewed online.
|
