These
Terms of Service
constitute the agreement ("Agreement") between XGSC Inc and their service provider VoicePeer Inc.
collectively known
as ("we," "us" or "XGSC") and the user
("you", "user", "customer") of XGSC's VoicePeer
communications services and any related products or services
("Service", "Services"). This Agreement governs both the
Service and any devices, such as an IP phone, Analog Telephone Adapter
or any
other IP connection device ("Device" or "Equipment"), used
in conjunction with the Service and it applies to all lines on each XGSC
account. If you purchased Equipment from a retail store, or a provider
other
than XGSC ("Retail Provider"), you are a "Retail Customer"
for purposes of this Agreement.
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 ITS TERMS AND CONDITIONS.
1.
EMERGENCY
SERVICES - 911
DIALING
1.1.
Non-Availability
of
Traditional 911 or E911 Dialing Service.
XGSC
offers a form of 911
service (911 Dialing) that is similar to traditional 911 service but
has some
important differences and limitations when compared with enhanced 911
service
(E911) available in most locations in conjunction with traditional
telephone
service. With both traditional 911 and E911 service, your call is sent
directly
to the nearest emergency response centre. In addition, with E911
service, your
call back number and address are visible to the emergency response
centre
call-taker. With XGSC's 911 service, your call is sent to a national
emergency
call centre. The call centre operator will request or confirm your
location
information and then transfer your 911 call to the emergency response
centre
nearest your location. You should be prepared to provide or confirm
your
address and call-back number with the operator. If you use a WiFi, XGSC
IP Phone
or SoftPhone, your 911 calls will be routed to the national emergency
response
centre, however, emergency personnel do not receive your phone number
or
physical location information. Do not hang up unless told directly to
do so and
if disconnected, you should dial 911 again.
1.2.
Registration
of Physical
Location Required.
You
should ensure your
location information, when registered with XGSC, is kept current at all
times.
In case you are not able to speak during the 911 call, the call taker
would
dispatch emergency response vehicles to your last registered address.
You need
to update your 911 Dialing information if you move your device to a
different
location and/or if you add a new line to your account. Regardless of
what
address you register for a WiFi, XGSC IP Phone or SoftPhone, the
national
emergency response centre does not receive your phone number or
physical
location information when you place a 911 call. Your 911 Dialing
service is
activated when you subscribe to XGSC service.
1.3.
Service
Outages.
911
Dialing service will
not function in the event of a power or broadband outage or if your
broadband,
ISP or XGSC service is suspended or disconnected. Following a power
failure or
disruption, you may need to reset or reconfigure your Device prior to
utilizing
the service, including 911 Dialing.
1.4.
Re-Registration
Required if
You Change Your Number or Add or Port New Numbers.
You
must successfully
register your location of use for each changed, newly added or newly
ported
number in order for 911 Dialing to function as intended. Regardless of
what
address you register for a WiFi, XGSC IP Phone or SoftPhone, the
national
emergency response centre does not receive your phone number or
physical
location information when you place a 911 call.
1.5.
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.
1.6.
Conveying
Limitations to other
household residents and guests.
You
should inform any
household residents, guests and other persons who may be present at the
physical location where you utilize the XGSC service, of the important
differences in and limitations of VoIP 911 Dialing service as compared
with
E911 service, as set out above.
1.7.
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 centre. We
disclaim all
responsibility for the conduct of local emergency response centres and
the
national emergency calling centre. We rely on third parties to assist
us in
routing 911 Dialing calls to local emergency response centres and to a
national
emergency calling centre. 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 XGSC 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 XGSC, 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, legal fees and expenses) 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.
1.8.
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
disconnecting
the Service.
2.
SERVICE
TERM.
2.1.
(a)
Service Term.
Service
is offered and paid
for on a prescribed recurring basis for a term that begins on the date
that XGSC
activates your Service and ends on the day before the same date in the
following period ("Service Term"). Subsequent terms of this Agreement
automatically renew for the same Service Term unless you give us
written notice
of disconnection at least thirty (30) days before the end of the
applicable Service
Term. You are purchasing the Service for the full Service Term, meaning
that if
you attempt to disconnect Service prior to the end of the applicable
Service
Term, you will be responsible for all charges relating to the
then-current
Service Term, including unbilled charges, plus a disconnection fee, if
applicable, all of which will immediately become due and payable. You
will also
be responsible for charges for the following Service Term in the event
that you
do not provide the requisite thirty (30) day disconnect notice as
described
above.
2.1.
(b)
Other Commitments.
If
you accept an equipment
upgrade or other promotional or plan benefit, such as a free month of
Service,
free installation, a rebate or other incentive, there may be a
commitment
associated with the benefit you accepted ("Commitment"). To the
extent there is a Commitment, it begins on the date you activate the
new
equipment or accept the promotion or benefit. The Commitment period
will be
disclosed as part of the promotion or plan. If you disconnect service
prior to
the end of the Commitment period, you agree to pay XGSC a recovery fee
in an
amount equal to the difference between the price you paid and the
regular price
of the good, service or other benefit you received at the time the
Commitment
period began. Recovery fees are cumulative and in addition to any other
charges
or fees you may owe XGSC, including any disconnection fees.
2.2.
Residential
Use of Service
and Device.
If
you subscribe to XGSC's
residential services, the Service and the Device are provided to you
solely for
residential use. You shall not resell or transfer the Service or the
Device to
another party without our prior written consent. You are prohibited
from using
the Service or the Device for auto-Dialing, continuous or extensive
call
forwarding, telemarketing (including charitable or political
solicitation or
polling), fax or voicemail broadcasting or fax or voicemail blasting.
We
reserve the right to immediately disconnect or modify your Service if
we
determine, in our sole and absolute discretion, that your use of the
Service or
the Device is, or at any time was, inconsistent with normal residential
usage
patterns. In addition, you will be required to pay our higher rates for
commercial service for all periods in which your use of the Service or
the
Device was inconsistent with normal residential use.
2.3.
Business
Use of Service and
Device.
If
you subscribe to XGSC's
business services, the Service and Device are provided to you as a
business
user or business traveler. You shall not resell or transfer the Service
or the
Device to another party without our prior written consent. You are
prohibited
from using the Service or the Device for auto-Dialing, continuous or
extensive
call forwarding, telemarketing (including, without limitation,
charitable or
political solicitation or polling), fax or voicemail broadcasting or
fax or
voicemail blasting. We reserve the right to immediately disconnect or
modify
your Service if we determine, in our sole and absolute discretion, that
your
use of the Service or the Device is, or at any time was, inconsistent
with
normal small business or business travel usage patterns, that you have
at any
time used the Service or the Device for any of the activities mentioned
above
or similar activities.
2.4.
Prohibited
Uses: Unlawful
Uses and Inappropriate Conduct
You
shall use the Service
and the Device only for lawful purposes. You shall not use the Service
or
Device in any way that is improper or inappropriate, including in a
manner that
is threatening, abusive, harassing, defamatory, libellous, deceptive,
fraudulent, invasive of another's
privacy, or any similar behaviour. In addition,
you shall not use the Service or the Device 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; use the Service to violate any law,
rule or
regulation; violate any third party's
intellectual property or
personal rights; or exceed your permitted access to the Service.
Subject to
applicable law, we may, but are under no obligation to, monitor usage
of the
Service for violations of this Agreement. We may remove or block any or
all
communications if we suspect a violation of this Agreement or if we
deem it
necessary in order to protect the Service, or XGSC, its parent,
affiliates,
directors, officers, agents and employees from harm. We reserve the
right to
immediately disconnect your Service without notice, if, in our sole and
absolute discretion, we determine that you have used the Service or the
Device
for an unlawful purpose or in ways mentioned above. In the event of
such
disconnection you will be responsible for all fees and charges due
under this
Agreement, including those referred to in Section 2.1, plus a
disconnection
fee, if applicable, all of which will be immediately due and payable.
If we
believe that you have used the Service or the Device for an unlawful
purpose,
we may forward the relevant communication and other information,
including your
identity, to the appropriate authorities for investigation and
prosecution. You
hereby consent to our forwarding of any such communications and
information to
these authorities. In addition, XGSC will provide customer and call
detail
information in response to lawful government requests, subpoenas, court
orders
and to protect its rights and property, and in response to law
enforcement
requests where the failure to disclose the information may lead to
imminent
harm to the customer or others. Furthermore, XGSC reserves all of its
rights at
law and equity to proceed against anyone who uses the Services
illegally or
improperly.
2.5.
Use
of Service and Device
by Customers Out side Canada and the United States.
Although
we encourage you
to use the Service to place calls within Canada and the United States,
and to
use the Service as you travel, XGSC offers and supports services only in
Canada
and the United States. XGSC Service is designed to work generally with
unencumbered high-speed internet connections. However, if the
high-speed internet
connection you are using is not within a XGSC service area, and/or your
ISP or
other broadband provider places restrictions on the usage of VoIP
services, XGSC
does not represent or warrant that use of the Service by you is
permitted by
any other jurisdictions or by any ISP or broadband provider. You will
be solely
responsible for any violations of local laws and regulations resulting
from
such use. We reserve the right to disconnect your Service immediately
if we
determine, in our sole and absolute discretion, that you have used the
Service
or the Device in violation of laws of jurisdictions outside of XGSC
service
areas.
2.6.
Copyright;
Trademark;
Unauthorized Usage of Device; Firmware or Software.
(a)
Copyright; Trademark.
The Service and Device and any firmware or
software used to provide the Service or provided to you in conjunction
with
providing the Service, or embedded in the Device, and all Services,
information, documents and materials on our websites are protected by
trademark, copyright or other intellectual property laws and
international
treaty provisions. All of our websites, corporate names, service marks,
trademarks, trade names, logos and domain names (collectively
"marks") are and will at all times remain our exclusive property.
Nothing in this Agreement grants you the right or license to use any of
our
marks.
(b)
Unauthorized Usage of
Device; Firmware or Software.
For
residential and business plan customers only, you (i) have not been
granted any
license to use the firmware or software used to provide the Service or
provided
to you in conjunction with providing the Service, or embedded in the
Device,
other than a non-transferable, revocable license to use such firmware
or
software in object code form (without making any modification thereto)
strictly
in accordance with the terms and conditions of this Agreement, and (ii)
expressly agree that the Device is exclusively for use in connection
with the
Service and that we will not provide any passwords, codes or other
information
or assistance that would enable you to use the Device for any other
purpose. We
reserve the right to prohibit the use of any interface device that we
have not
provided to you. You hereby represent and warrant that you possess all
required
rights, including software and/or firmware licenses, to use any
interface
device that we have not provided to you. In addition, you shall
indemnify and
hold us harmless against any and all liability arising out of your use
of such
interface device with the Service. You 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.
2.7.
Tampering
with the Device
or Service.
You
shall not change the
electronic serial number or equipment identifier of the Device or
perform a
factory reset of the Device without our prior written consent. We
reserve the
right to disconnect your Service if we believe, in our sole and
absolute
discretion, that you have tampered with the Device. In the event of
such disconnection,
you will remain responsible for all charges through 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. You shall
not
attempt to hack or otherwise disrupt the Service or make any use of the
Service
that is inconsistent with its intended purpose.
2.8.
XGSC
Supported Devices
You
acknowledge that XGSC
will only support those Devices listed in our "Supported Devices"
list. If you
provide your own Device to
connect with the Service, XGSC in no way warrants the Service on any
such
Device. The most
current version of the
"Supported Devices" list can be found at http://www.voicepeer.net.
2.9.
Theft
of Service.
You
shall not use or obtain
the Service in any manner that avoids XGSC policies and procedures
including in
an illegal or improper manner. You shall notify us immediately, in
writing or
by calling our customer support line, if the Device is stolen or if you
become
aware at any time that your Service is being stolen, fraudulently used
or
otherwise being used in an unauthorized manner. When you call or write,
you
must provide your account number and a detailed description of the
circumstances of the Device theft, fraudulent use or unauthorized use
of
Service. Failure to do so in a timely manner may result in the
disconnection of
your Service and additional charges to you. Until such time as we
receive
notice of the theft, fraudulent use or unauthorized use, you will be
liable for
all use of the Service using a Device stolen from you and any and all
stolen,
fraudulent or unauthorized use of the Service whether or not it
involves a
stolen Device. XGSC reserves all of its rights at law and equity to
proceed
against anyone who uses the Services or Device illegally or improperly.
2.10.
Return
of Device (Applies
to Residential and Business customers)
(a)
Retail Customers.
A Retail Customer may only return the Device to
the Retail Provider. All returns will be subject to the return policy
of such
Retail Provider. We will not accept any Device returned to us from a
Retail
Customer. XGSC will credit Service fees if you call us within the Money
Back
Guarantee period (defined in Section 3.7).
(b)
Non-Retail Customers.
Non-Retail Customers may return the Device to us
if 1) you cancel services within the Money Back Guarantee period and 2)
you
return the Device to us with a valid return authorization number within
fourteen (14) days of the date you disconnected the Service. If you
receive
cartons or Devices that are visibly damaged, you must note the damage
on the
carrier's freight bill or receipt and keep a copy. In such event, you
must keep
the original carton, all packing materials and parts intact in the same
condition in which they were received from the carrier and contact our
customer
care department immediately by contacting XGSC Support.
2.11.
Number
Transfer on Service
Disconnection.
Upon
disconnection of your
Service, we may, in our sole and absolute discretion, subject to
applicable
law, release to your new service provider the telephone number that you
ported
(transferred or moved over) to us from your previous service provider
and used
in connection with your Service if:
2.12.
Service
Distinctions.
The
Service is not a
traditional telecommunications service and we provide it on a best
efforts
basis. Things beyond our control may affect the Service, such as power
outages,
fluctuations in the Internet, your underlying ISP or broadband service.
Other
things may affect Service, such as maintenance. XGSC will act in good
faith with
a view to minimizing disruptions to your use of and access to Service.
Important
distinctions exist between a traditional telecommunications service and
our
Service, and our Service is subject to different regulatory treatment
than a
traditional telecommunications service. This treatment may limit or
otherwise
affect your rights of redress before regulatory agencies.
2.13.
Ownership
and Risk of Loss.
You
will own the Device and
bear all risk of loss of, theft of, casualty to or damage to the
Device, from
the time it is shipped to you until the time (if any) when it is
returned to us
in accordance with this Agreement.
2.14.
No
0+ or Operator Assisted
Calling; May Not Support x11/8xx Calling.
The
Service does not
support 0+ or 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 and 411, which are provided for elsewhere in this Agreement)
services in
one or more (or all) service areas.
2.15.
No
Directory Listing.
The
phone numbers you
obtain from us will not be listed in any telephone directories. Phone
numbers
transferred from your local phone company may, however, be listed. As a
result,
someone with your phone number may not be able to utilize a reverse
directory
to look up your address.
2.16.
Change
of Number.
You
have no property right
in any phone number assigned to or used by you. You can only retain the phone number assigned to you as long as your account balance is current .
In an event your service is cancelled due to arrears or non-payment , you are not entitled to the phone number assigned to you and cannot port the number. If you wish to resume the service after bringing you account
current , we have the full right to change your phone number , at our discretion.
2.17.
Incompatibility
with Other
Services.
(a)
Home Security Systems.
The Service may not be compatible with home
security systems. You may be required to maintain a telephone
connection
through your local exchange carrier in order to use any alarm
monitoring
functions for any security system installed in your home or business.
You are
responsible for contacting the alarm monitoring company to test the
compatibility of any security system with the Service.
(b)
Certain Broadband,
Cable Modem and Other Services.
You
acknowledge that the Service presently is not compatible with AOL cable
broadband service and there may be other services with which the
Service may be
determined to be incompatible. You further acknowledge that some
providers of
broadband service may provide modems that prevent the transmission of
communications using the Service. We do not warrant that the Services
will be
compatible with all broadband services and expressly disclaim any
express or
implied warranties or conditions regarding the compatibility of the
Service
with any particular broadband service.
(c)
Fax Machines and Point of Sale Systems. You acknowledge that the
Service
is presently not compatible with any fax machines or point of sale
systems. You
further acknowledge that
you are responsible for establishing traditional phone services to
operate such
fax machines or point of sale systems.
2.18.
Customer
Service.
Please
see XGSC's General
Support Service Level Agreement for all customer service and support
terms.
. You may also
visit http://www.voice4business.com
for all of your Service support needs.
3.
CHARGES;
PAYMENTS; TAXES;
DISCONNECTION
3.1.
Billing.
Billing
for services
delivered will be billed monthly in advance and are due as per the due
day on
the invoice or on the first day of the month of the service delivery if
no due
date is specified.
When
the Service is
activated, you must provide us with a valid mailing address, email
address and
a payment method that we accept. We reserve the right to stop accepting
your
payment method or your payments. If your payment method expires, you
close your
account, your billing address changes, or your payment method is
cancelled and
replaced on account of loss or theft, you must advise us at once. We
will bill
all charges, fees, applicable taxes and surcharges for each Service
Term in
advance (except for usage-based charges, which will be billed monthly
in arrears,
and any other charges which we decide to bill in arrears) to your
payment
method, including but not limited to:
XGSC
may introduce new
products and services at special introductory pricing. Introductory
pricing may
change at XGSC's
discretion. Where required by law, 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. XGSC bills usage charges in full minute
increments
that are rounded up to the next full minute unless otherwise set forth
in the
rate schedules found on our website. XGSC bills fractional usage charges
in full
cents that are rounded up when the value is $.005 or more and down when
the
value is less than $.005, unless otherwise set forth in the rate
schedules
found on our website.
The
above fees are defined
as follows:
Setup
Fee - This
fee
covers charges for setting up your account and activating you on our
system.
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 long distance calling
minutes on your plan, XGSC will bill you for the minutes you use above
your
allowance. XGSC also bills for calls to directory assistance and other
information services.
International
Usage Charges - International calling services are not
available through XGSC at this time.
Advanced
Features, Add-Ons, Premium Services - XGSC charges additional
fees for enhanced features, add-ons and other added products and
services.
Equipment
Purchases - In most instances, you will pay for equipment
associated with your XGSC service with your payment method. However,
there may
be occasions when XGSC will offer you the option to bill equipment to
your
account.
Taxes
- XGSC is required to bill and collect local, provincial and
federal taxes imposed on XGSC customers by the various taxing
authorities. XGSC
passes all taxes it collects on to the appropriate taxing authority.
3.2.
Billing
Disputes.
You
must notify us in
writing within ten (10) days after receiving your statement from your
credit
card issuer if you dispute any XGSC charges on that statement or you
will be
deemed to have waived any right to contest such charges. All notices of
disputed
charges should be directed to XGSC Customer Support.
3.3.
Payment
and Collection.
(a)
Payment.
Your subscription to the Service authorizes us to collect from your
payment method. This authorization will remain valid until thirty (30)
days
after we receive written notice from you terminating our authority to
charge
your payment method, whereupon we will charge you for the disconnection
fee, if
applicable, and any other outstanding charges and disconnect your
Service. We
may disconnect your Service at any time in our sole and absolute
discretion if
any charge to your payment method is declined or reversed, your payment
method
expires and you have not provided us with a valid replacement payment
method or
in case of any other non-payment of account charges.
(b) Modes of Payment
Late payment will be charged an interest at the rate of 1.75% per month (annual compound rate of 23.14%)
Any NSF Payment will be charged at $25.00 per NSF incident.
There will be no charge for an emailed invoice or statement. However, a monthly charge of $2.00 will be applicable if invoice and monthly statements are required to be mailed.
(c)
Collection.
If your Service is
disconnected, you will remain fully liable to us for all charges
pursuant to
this Agreement and any and all costs we incur to collect such amounts,
including, without limitation, collection costs and legal fees and
expenses.
3.4.
Disconnection;
Discontinuance of Service.
We
reserve the right to
suspend or discontinue the Service generally, or to disconnect your
Service, at
any time in our sole and absolute discretion. If we discontinue the
Service
generally, or disconnect your Service without a stated reason, you will
only be
responsible for charges accrued through the date of disconnection,
including a
pro-rated portion of the final Service Term charges. If your Service is
disconnected on account of your breach of any provision of this
Agreement, you
will be responsible for all charges through the end of the current
Service
Term, including unbilled charges, plus the disconnection fee, if
applicable,
all of which will immediately be due and payable.
XGSC
will pursue collection
for unpaid amounts on disconnected accounts and may report to and
exchange
credit and personal information with any credit/consumer reporting
agency and
financial institution relating to this Agreement.
3.5.
Taxes.
Federal,
provincial,
municipal, local or other governments may assess taxes, surcharges
and/or fees
on your use of XGSC service. These charges may be a flat fee or a
percentage of
your XGSC charges and may change from time to time without notice. These
charges
are based on the rates applicable to the address you provided to us.
You are
responsible for all applicable federal, provincial, municipal, local or
other
governmental sales, use, excise, value-added, personal property, public
utility, goods and services, harmonized or other taxes, fees or charges
now in
force or enacted in the future, that arise from or as a result of your
subscription or use or payment for the Service or a Device. Such
amounts are in
addition to payment for the Service or Devices and will be billed to
your
payment method as set forth in this Agreement. If you are exempt from
payment
of such taxes, you must provide us with an original certificate that
satisfies
applicable legal requirements attesting to tax-exempt status. Tax
exemption
will only apply from and after the date we receive such certificate.
3.6.
Disconnection
Fee (Applies
only to Residential and Business Plan Customers).
You
will be charged a
disconnection fee of $14.99 CDN per line or extension if your Service
is
disconnected subject to applicable federal, provincial and local laws. However, if your Service
was activated on or
after January 1, 2009 and is disconnected after one (1) year following
your activation
date, the disconnection fee will be waived.
3.7.
Money
Back Guarantee;
Limitations and Conditions.
(a)
Residential and
Business Customers.
We
offer a thirty (30) day money back
guarantee (“Money Back Guarantee�) from the date your Service is
activated
(different periods may apply for Retail Customers). The Money Back
Guarantee
applies all charges on the account except for any disconnection fees.
We will
refund or credit the setup fee, the Service charge for the first
Service Term,
shipping charges and the $14.99 per line disconnection fee provided
that:
So long as you
cancel Service within the Money Back Guarantee Period and comply with
the above
described conditions, XGSC will issue you one disconnection fee credit
to your
account per line or extension initially ordered on your account.
XGSC may not be
able to refund all applicable taxes. You will be responsible for any
charges
for international usage, payphone calls to Vonage toll free numbers and
directory
assistance. We reserve the right to terminate or revoke this Money Back
Guarantee at any time, without prior notice.
3.8.
Payphone
Charges.
If
you use any toll free
feature that we currently offer or offer in the future, we will be
entitled to
recover from you any charges imposed on us either directly or
indirectly in
connection with toll free calls made to your number.
3.9.
Charges
for Directory Calls
(411).
We will charge you $1.25 CDN
for each call
made to XGSC directory assistance.
3.10.
No
Refunds for Pre-Paid
Service Plan Customers.
Subject
to the Money Back
Guarantee and applicable law, we will not refund any Service Fees or
any other
amounts paid in connection with any pre-paid Service plans.
4.
LIMITATION
OF LIABILITY;
INDEMNIFICATION; WARRANTIES
4.1.
Limitation
of Liability.
We
will not be liable for
any delay or failure to provide the Service, 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:
Our
aggregate liability
under this agreement will in no event exceed the Service charges with
respect
to the affected time period.
4.2.
Disclaimer
of Liability for
Damages.
IN
NO EVENT WILL XGSC, ITS
OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER
SERVICE
PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION WITH THIS
AGREEMENT OR THE
SERVICE BE LIABLE FOR ANY DIRECT, 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 THE 911 DIALING 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,
FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM AND ANY AND ALL OTHER
THEORIES
OF LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE
LIKELIHOOD OF ANY
PARTICULAR TYPE OF DAMAGES.
4.3.
Indemnification
and
Survival.
(a)
Indemnification.
You shall defend, indemnify, and hold harmless
XGSC, its officers, directors, employees, affiliates and agents and any
other
service provider who furnishes services to you in connection with this
Agreement or the Service, from any and all claims, losses, damages,
fines,
penalties, costs and expenses (including, without limitation, legal
fees and
expenses) by, or on behalf of, you or any third party or user of the
Service,
relating to this Agreement or the Services, including, without
limitation, 911 Dialing,
or the Device.
(b) Survival. The provisions of this Agreement that
by their sense and
context are intended to survive the termination or expiration of this
Agreement
shall survive.
4.4.
No
Warranties on Service.
To
the extent permitted by
applicable law, WE MAKE NO WARRANTIES OR CONDITIONS, EXPRESS OR
IMPLIED,
INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABLE QUALITY, REASONABLY ACCEPTABLE QUALITY, FITNESS OF THE
SERVICE OR
DEVICE 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, WE PROVIDE NO WARRANTY OR
CONDITION
THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY,
INTERRUPTION, ERROR,
DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION.
NEITHER
XGSC NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS, OR
ANY OTHER
SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES DEVICES, OR PRODUCTS
TO
CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, WILL BE
LIABLE FOR
UNAUTHORIZED ACCESS TO OUR OR YOUR 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 XGSC'S OR ITS SERVICE
PROVIDER'S OR
VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE
OR
DEVICE, IF ANY, BY XGSC OR XGSC'S AGENTS OR INSTALLERS ARE INFORMATIONAL
AND ARE
NOT GIVEN AS A WARRANTY OR CONDITION OF ANY KIND.
4.5.
Device
Warranties (Applies
only to Residential and Business Plan customers).
(a)
Limited Warranty.
Except as set forth herein, if you received the
Device from us and the Device included a limited warranty at the time
of
receipt, you must refer to the separate limited warranty document
provided with
the Device 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.
(b)
No Warranty.
IF A LIMITED WARRANTY DID NOT COME WITH YOUR
DEVICE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU ARE ACCEPTING
THE DEVICE
"AS IS". YOUR DEVICE IS NOT ELIGIBLE FOR REPLACEMENT, REPAIR OR
REFUND AFTER THE MONEY BACK GUARANTEE PERIOD.
(c)
Disclaimer.
To the extent permitted by applicable law, OTHER
THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN THE
DOCUMENTATION
PROVIDED WITH THE DEVICE WARRANTY EXPRESSLY SET FORTH HEREIN, WE MAKE
NO
WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, AND
SPECIFICALLY
DISCLAIM ANY WARRANTY OR CONDITION OF MERCHANTABLE QUALITY, REASONABLY
ACCEPTABLE QUALITY, FITNESS OF THE DEVICE 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
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 OR CONDITION SET FORTH IN THE
DOCUMENTATION PROVIDED WITH THE DEVICE.
4.6.
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.
4.7.
Content.
You
will be liable for any
and all liability that may arise out of the content transmitted by or
to you or
any person, whether authorized or unauthorized, using your Service or
Device
(each such person, a "User"). You shall ensure that your and your
User's use of the Service and content comply at all times with all
applicable
laws, regulations and written and electronic instructions for use. We
reserve
the right to disconnect or suspend your Services and remove your or
your Users'
content from the Service, if we determine, in our sole and absolute
discretion,
that such use or content does not conform with the requirements set
forth in
this Agreement or interferes with our ability to provide Services to
you or
others. Our action or inaction under this Section will not constitute
any
review or approval of your or Users' use or content.
5.
MISCELLANEOUS
5.1.
Governing
Law.
The
Agreement and the
relationship between you and us is governed by the laws of the Province
of
Manitoba and the federal laws of Canada applicable therein without
regard to
its conflict of law provisions. To the extent court action is initiated
to
enforce an arbitration award or for any other reason consistent with
Section
5.2, you shall submit to the personal and exclusive jurisdiction of the
courts
located within the Province of Manitoba and waive any objection as to
venue or
inconvenient forum.
5.2.
Mandatory
Arbitration and
No Jury Trial.
Except
to the extent
contrary to applicable law, any dispute or claim between you, any
member of
your household or any guest or employee of you and us arising out of or
relating to the Service or Device will be resolved by arbitration
before a
single arbitrator administered by a Canadian arbitration organization
of our
choosing. The arbitration shall take place in Winnipeg, Manitoba and
shall be
conducted in English. The arbitrator's decision will follow the plain
meaning
of the relevant documents, and will 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. ANY CLAIM OR CAUSE OF
ACTION ARISING
OUT OF OR RELATED TO THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR
AFTER SUCH
CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED, except to the
extent such
a limitation is prohibited by applicable law. All claims shall be
arbitrated
individually. Except to the extent contrary to applicable law, you
shall 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.
THIS
ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL
AND AN
AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL
PROCEEDINGS
IN, MANITOBA.
5.3.
No
Waiver of Rights.
Our
failure to exercise or
enforce any right or provision of this Agreement will not constitute a
waiver
of such right or provision.
5.4.
Entire
Agreement.
This
Agreement, including
any future modifications as may occur within the terms of the
Agreement, and
the rates for Services found on our website constitute the entire
agreement
between you and XGSC and govern the use of the Service by you, members
of your
household, guests and employees. This Agreement supersedes any prior
agreements
between you and XGSC and any and all prior or contemporaneous
statements,
understandings, writings, commitments, or representations concerning
its
subject matter.
5.5.
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.
5.6.
French
Language.
The
parties confirm that it
is their express wish that this agreement, as well as any other
documents
relating to this agreement, including notices, schedules and
authorizations,
have been and shall be drawn up in the English language only. Les parties aux
présentes confirment leur
volonté expresse que cette convention, de même que tous les documents
s'y
rattachant, y compris tous avis, annexes et autorisations s'y
rattachant, soient
rédigés en langue anglaise seulement.
6.
FUTURE
CHANGES TO THIS
AGREEMENT
We
may change the terms and
conditions of the Service and this Agreement, as well as amounts
charged under
this Agreement, from time to time. Notices will be considered given and
effective on the date posted on http://voice4business.com, or as
otherwise may
be required by applicable law. Subject to applicable law, such changes
will
become binding on you on the date they are posted to our website and no
further
notice by us is required upon your continued use of the Service. The
Agreement
as and when posted or otherwise amended in accordance with applicable
law,
supersedes all previously agreed to electronic and written terms of
service,
including, without limitation, any terms included with the packaging of
the
Device and also supersedes any written terms provided to Retail
Customers in
connection with retail distribution, including, without limitation, any
written
terms enclosed within the packaging of the Device. If this Agreement is
amended
and you do not wish to accept the amendment, you may terminate the
Agreement as
provided in Section 2.1.
7.
PRIVACY
7.1.
Network
Security.
XGSC
utilizes, in whole or
in part, the public Internet and third party networks to transmit voice
and
other communications. XGSC is not liable for any lack of privacy which
may be
experienced with regard to the Service.
7.2.
Personal
Information.
To
the extent that personal
information is provided in connection with this Agreement, the customer
confirms that he or she consents, and that all other necessary consents
have
been obtained, to the use, collection and disclosure by XGSC, assignees
of XGSC,
and their respective affiliates, agents and contractors for the
following
purposes:
(i)
providing products and services to the customer,
(ii)
contract management and administration,
(iii)
establishing a customer relationship and communicating with customers,
(iv)
developing, implementing and managing products and services for
customers,
(v)
assisting in law enforcement purposes and collecting unpaid debts,
(vi)
protecting, managing and promoting their business interests and
activities;
(vii)
providing information to the customer on other products and services
which may
be available; and
(viii)
otherwise as required or permitted by law or this Agreement.
The
customer may withdraw
his or her consent in respect of clause (vii) above, without affecting
his or
her other arrangements with XGSC, by notifying XGSC customer service.
8.
EXPORT
CONTROLS
You
agree to comply fully with
all relevant export laws and regulations of Canada, and without
limiting the
generality of the foregoing, you expressly agrees that you shall not
export,
directly or indirectly, re-export, divert, or transfer any portion of
the
Service or any direct product thereof to any destination, company or
person
restricted or prohibited by such laws or regulations.
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