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FREEPHONELINE SERVICE SCHEDULE TO FONGO MASTER SERVICES AGREEMENT
Fongo Inc. ("Fongo") offers certain services under the Freephoneline brand (the "Freephoneline Service(s)" or the "Service(s)"), the terms of which are found in this Freephoneline Service Schedule. This Freephoneline Service Schedule is an attachment to and forms an integral part of the Fongo Master Services Agreement (the "Agreement") and the Customer agrees to be bound by the terms and conditions set out in this Freephoneline Service Schedule as well as the Fongo Master Services Agreement which can be found at www.freephoneline.ca/terms.
THIS FREEPHONELINE SERVICE SCHEDULE IS SUBJECT TO THE LIMITATION OF LIABILITY CONTAINED IN THE FONGO MASTER SERVICES AGREEMENT.
THE CUSTOMER MUST READ AND ACCEPT THESE TERMS AND CONDITIONS OF USE BEFORE USING THIS SITE OR SUBSCRIBING TO THE SERVICE. THESE TERMS AND CONDITIONS OF USE CREATE AN AGREEMENT BETWEEN THE CUSTOMER AND FONGO. THESE TERMS AND CONDITIONS OF USE GOVERN THE CUSTOMER'S USE OF THIS INTERNET SITE ("SITE") AND THE SERVICES OFFERED, INCLUDING THE SERVICE SOFTWARE, THE ASSOCIATED MEDIA, ANY PRINTED MATERIALS, DATA, FILES AND INFORMATION AND ANY ONLINE OR ELECTRONIC DOCUMENTATION "(SOFTWARE"). EACH TIME THE CUSTOMER USES THIS SITE OR THE SERVICE, THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS OF USE. THESE TERMS AND CONDITIONS MAY BE UPDATED AND CHANGED WITHOUT NOTICE TO THE CUSTOMER. THIS AGREEMENT TAKES PRECEDENCE OVER ANY OTHER AGREEMENT OR TERMS EMBEDDED WITHIN THE SOFTWARE.
The following terms and conditions apply to all of the Freephoneline Services unless specifically noted in the section title as applying only to a particular Service.
The Customer, as identified in the Customer Account (as defined herein), and as may be referred to as "You" or "Customer", subscribes to Freephoneline Services subject to the terms and conditions specified herein.
The Customer is responsible for providing accurate information and for updating any information on the Customer's account. Fongo reserves the right to suspend or terminate the Customer's account if provided with incomplete or inaccurate information at the time of subscription or any time thereafter.
The Site and the Service may be used only by persons who have reached the age of majority and who can form legally binding contracts under applicable law. If the Customer is under the legal age of majority in the jurisdiction in which it lives and wishes to subscribe to the Service, a parent or legal guardian must subscribe to the Service on behalf of the Customer.
2. SPECIFIC TERMS FOR THE FONGO MOBILE APP
a. 9-1-1 Not Available
- The Fongo Mobile App is not a replacement for Customer's ordinary telephone service and emergency calls cannot be made with the Fongo Mobile App. However, Customer may still use his/her mobile phone for making emergency calls via his/her cellular provider as usual. Neither 999, 112, 911, e-911 service nor any other emergency service is available through the Fongo Mobile App. If Customer dials "999" or "911"(or any other internationally recognized emergency service numbers) while using the Fongo Mobile App, Customer will not be connected to an emergency operator, nor will Customer's phone number or location be reported to an emergency operator.
- The Customer acknowledges and understands that Fongo will not be liable for any inability to dial 9-1-1 or any other emergency service using the Fongo Mobile App or to access emergency service personnel due to the 9-1-1 dialling limitations listed herein. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, FONGO, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND UNDERLYING CARRIERS WILL NOT BE LIABLE FOR ANY INJURY, DEATH OR DAMAGE TO PERSONS OR PROPERTY, ARISING DIRECTLY OR INDIRECTLY OUT OF, OR RELATING IN ANY WAY TO THE PROVISION OR NON-PROVISION OF 9-1-1 AND/OR EMERGENCY SERVICE, INCLUDING WITHOUT LIMITATION ANY INABILITY ON THE PART OF CUSTOMER OR ITS END USERS TO ACCESS 9-1-1 AND/OR EMERGENCY SERVICE, AND THE CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS FONGO, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND UNDERLYING CARRIERS FROM ANY LIABILITIES, CLAIMS, DAMAGES, LOSSES ARISING DIRECTLY FROM THE PROVISION OR NON-PROVISION OF 9-1-1 AND/OR EMERGENCY SERVICE.
b. 6-1-1 / 4-1-1 / 3-1-1 / 2-1-1 Not Available
- The Fongo Mobile App is not a replacement for ordinary cellular telephone service and Customer cannot make 6-1-1 / 4-1-1 / 3-1-1 / 2-1-1 calls with this service. However Customer may still use his/her mobile phone for making these calls via the cellular provider as usual.
c. Cellular Provider Costs
- Fongo will not be responsible for any cellular provider charges to Customer. For greater certainty, Customer understands that the following cellular provider charges may be incurred by Customer when using the Fongo Mobile App:
- Charges incurred if Customer selects the incorrect location or local access number for Customer's location when placing the call with the Fongo Mobile App;
- Charges incurred if Customer presses the "SEND" button on the mobile device at any time during the call completion process;
- Charges for local air time for use of Customer's cellular provider's network for the duration of the call; and
- Any other cellular provider or third party charges that may be incurred if the Fongo Mobile App dialling procedures are not followed correctly.
d. Data Plan Required
- Customer must have a data plan with a third party data provider in order to use the Fongo Mobile App. Any charges incurred by the Customer for use of its data plan are the responsibility of the Customer and Fongo will not have any liability for these charges or any 3rd party service.
- The Fongo Mobile App will be updated periodically to refresh information such as the locations list, local access numbers, and banner ads. Customer must have a data plan to allow for such updates. Use of wi-fi or any other temporary connection may mean that updates are not received on time and if Customer uses the Fongo Mobile App without up to date local access numbers, Customer may incur charges from his/her cellular provider. Fongo will not be liable for any errors or failures of local access numbers or any related charges if the Customer has not kept the Fongo Mobile App service current by maintaining a data plan for updates or if Customer does not use the Fongo Mobile App in accordance with these terms and conditions.
- Customers using iPhones as their mobile device, must have internet connectivity in order to place a call.
3. 9-1-1 – EMERGENCY SUPPORT FOR THE FONGO SOFTPHONE SERVICE
PLEASE READ THE INFORMATION BELOW ABOUT 9-1-1 EMERGENCY SERVICE CAREFULLY!
By using or paying for the Services, the Customer acknowledges and agrees to all of the information below regarding the limitations of using the Service for dialing 9-1-1. The Customer acknowledges and understands that the Service does offer a limited 9-1-1 type service and that such 9-1-1 type dialing differs in important respects from traditional 9-1-1 service, as described below. The Customer agrees to advise all users who may place calls over the Service from the Customer's location of these limitations.
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.
- Fongo 9-1-1 emergency dialing is only officially supported in software and on Analogue Terminal Adapters (ATAs) provided by Fongo for use with the Service.
- The 9-1-1 call may be routed to a different dispatcher than that used for traditional 9-1-1 dialing. The dispatcher will be located at either the Public Safety Answering Point (PSAP) or with a local emergency service relay provider designated for the address specified by the Customer at the time of Service subscription or as properly updated by the Customer from time to time.
- Fongo 9-1-1 emergency dialing has certain limitations relative to Enhanced 9-1-1 service. Enhanced 9-1-1 service is the type of 9-1-1 service that is generally available on most traditional primary exchange telephone services. With Enhanced 9-1-1 service, your address information associated with your telephone number is usually available to the Public Safety Answering Point at the time of your 9-1-1 call. With Fongo 9-1-1 emergency dialing your call is being sent via the Internet rather than a traditional phone line, and as the most up to date customer address information may not arrive with this call, a different method is required to send this customer address information accurately. This method may involve the use of an intermediary emergency service operator to help ascertain your current location information.
- Be prepared to confirm your location and telephone number with the operator who answers the 9-1-1 call since the operator may not have this information. It is also recommended to keep in mind that Fongo is your telephone service provider because if necessary, the Fongo central call centers can contact emergency services in severe emergency situations to attempt to help. You are also encouraged not to hang up until told to do so, and to call back if you get disconnected, as immediately as possible. Please note that it may take up to three (3) days upon initial activation of service for your address information to fully propagate throughout the 9-1-1 systems.
- Fongo 9-1-1 emergency dialing may not be available during a power outage, may not be available if using the Fongo software client and the Customer's computer is malfunctioning, in the event of suspension or disconnection of the Service because of billing issues or breach of terms of service, or any disconnection or suspension of underlying broadband access service. Fongo 9-1-1 emergency dialing will also be unavailable during a broadband internet outage. If there is a power outage, the Customer may be required to reset or reconfigure their ATA, if using a Fongo ATA, prior to being able to use the Service, including for 9-1-1 dialing purposes.
- If using a Fongo ATA, 9-1-1 dialing will not function correctly if the Customer moves the ATA to a location other than that provided to Fongo at the time of Service activation. In such an event, in order to have 9-1-1 calls routed correctly, the Customer must update its service address at least three (3) days prior to moving by updating their information via the Freephoneline.ca web site.
- Customer must keep its registered location information current by updating it with Fongo to help ensure success with the emergency service operator who may assume that Customer is at the last registered address if he/she is not able to speak during a 9-1-1 call. Customer's registered location information is used to accurately connect to the appropriate emergency response center so that they may trigger the appropriate emergency response.
- For technical reasons associated with the possibility of network congestion, there is a possibility that the 9-1-1 call will produce a busy signal or will take longer to answer, as compared to traditional 9-1-1 calls placed from a fixed location known to the service provider.
- Customer should inform any household residents, guests and other persons who may be present at the physical location where the Fongo service is utilized of the important differences in and limitations of Fongo 9-1-1 dialing as compared with traditional Enhanced 9-1-1 service, as set out above.
- Customers traveling outside of Canada will not have 9-1-1 dialing services.
- If Customer is not comfortable with the limitations of the Fongo 9-1-1 emergency dialing, Customer should consider having an alternate means of accessing traditional 9-1-1 or Enhanced 9-1-1 services or disconnecting the Service.
- The Customer acknowledges and understands that Fongo will not be liable for any service outage and/or inability to dial 9-1-1 using the Service or to access emergency service personnel due to the 9-1-1 dialing characteristics and limitations listed herein. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, FONGO, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND UNDERLYING CARRIERS WILL NOT BE LIABLE FOR ANY INJURY, DEATH OR DAMAGE TO PERSONS OR PROPERTY, ARISING DIRECTLY OR INDIRECTLY OUT OF, OR RELATING IN ANY WAY TO THE PROVISION OR NON-PROVISION OF 9-1-1 AND/OR EMERGENCY 9-1-1 SERVICE, INCLUDING WITHOUT LIMITATION ANY INABILITY ON THE PART OF CUSTOMER OR ITS END USERS TO ACCESS 9-1-1 AND/OR EMERGENCY 9-1-1 SERVICE, AND THE CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS FONGO, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND UNDERLYING CARRIERS FROM ANY LIABILITIES, CLAIMS, DAMAGES, LOSSES ARISING DIRECTLY FROM THE PROVISION OR NON-PROVISION OF 9-1-1 AND/OR EMERGENCY 9-1-1 SERVICE.
- Software license
- At the time of subscription, Customer shall receive or shall be entitled to download the Software required to run and operate the Service.
- Subject to the terms and conditions of this Agreement, Fongo grants to Customer a non-exclusive, non-transferable, revocable, limited license to use the Software.
- Customer shall have no right to transfer, assign or sublicense the Software.
- Restrictions on altering the Software or the code in any way
Except as otherwise specified in this Schedule , the Customer may not: (i) copy the Software, other than one copy which is permitted as a backup; (ii) Modify or create any derivative works of any Software, Service or documentation, including translation or localization (code written to published application programming interfaces or APIs); (iii) Sublicense or permit simultaneous use of the Service by more than one user; (iv) Reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for any Software related to the Service;(v) Redistribute, encumber, sell, rent, lease, sublicense, or use the Software or the Service in a timesharing or service bureau arrangement, or otherwise transfer the Software or any rights to the Software; (vi) Remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software or Service; or (vii) Publish any results of benchmark tests run on any Software to a third party without Fongo's prior written consent.
- Ownership of Software and Service
All right, title and interest in the copyright, patents and intellectual property rights in the Software and the Service or any part thereof remain with Fongo or the original owner of such rights, as the case may be.
5. USE OF THE SERVICE
- System Requirements
The Customer is responsible for ensuring that Customer's computer, smartphone, and system meet the minimum system requirements to run the Service.
If the Customer's system does not meet these requirements, Fongo is not responsible for any connection difficulties or Service delays, deficiencies, interruptions or related damages the Customer may have as a result.
The Customer is responsible for the download and installation of the Software and the Service. Customer acknowledges that all installation and downloads of the Software are at your own risk. Fongo is not responsible for and will not be liable for any hardware, system or third party software damages or malfunctions that may arise from the installation, download or use of the Services.
- Third Party Software and Downloads
- Fongo is not responsible for third party software downloads or hardware installed by the Customer which may alter the Service connection, the Customer's computer configuration or which may prevent or alter internet connection, speed, or service or have any other impact on the Service.
- Fongo is not responsible for any spyware, malware or virus the Customer contracts on his/her computer from using the internet or the World Wide Web.
- Fongo assumes no responsibility whatsoever for any internet or email or other connection software the Customer may run on its computer. Fongo assumes no responsibility for any damages that may result from the use of such software.
- Number Transfer or "Porting to Fongo"
If Customer wishes to transfer or port a current telephone number to Fongo, you must complete a Letter of Authorization (the "LOA") and submit it to Fongo. The LOA will permit Fongo to contact your current carrier and request the port of the number to the Fongo network. Customer is responsible to cancel the service agreement with the current carrier, once informed by Fongo that the port is complete. Fongo will not be responsible for numbers that are lost, charges incurred to reclaim the telephone number, or any other porting fees, should the customer cancel their service before the port is complete.
- Number Transfer Away From Fongo or "Porting Out"
If Customer intends to change to another service provider, Customer may request to take or "port out" the telephone number supplied by Fongo to such other service provider. If Customer asks a new service provider to port a number from Fongo and Fongo receives such request (with 30 days notice), Fongo will terminate the Service with respect to such number shortly after the successful completion of the port. Customer will remain responsible for any charges and fees associated with that number until the Service was terminated. If Customer's Service has been suspended due to non-payment, Fongo reserves the right to deny the port-out request. If a port is unsuccessful for any reason, the Service and this Agreement will not terminate and Customer will continue to be responsible for any charges and fees associated with the Service and Customer's account.
- Directory Listing
The phone number(s) that Customer obtains in connection with the Service will not be listed in any telephone directories.
- No 0+ , Operator Assisted Calling or 900 calls
The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls and third party billing calls). Further, the Service does not support 1-900 calls or other similar services. The Service does support 411 calls, which shall be charged at a rate to be determined from time to time by Fongo, and it also supports 311 calls where available. The Service may support certain calling card calls or other companies' flat rate calling services (depending on dialing requirements), but it will not support 10-10 dial around long distance services.
- Long Distance
Long distance calls are free when Customer is calling to Freephoneline’s Free Calling city list. For a current listing of Free Calling cities please check http://www.freephoneline.ca/cityListing. For calling to destinations outside of Freephoneline Free Calling cities, Customer may purchase Long Distance Credits. Charges for destinations outside of Freephoneline’s Free Calling cities will be applied against Long Distance Credits at the then current destination rates, which may change from time to time without notice to Customer. All destinations outside of Freephoneline’s Free Calling cities have landline rates and cellular rates. Calls are billed in 60 second increments, and have connection fees per call. For more information on purchasing Long Distance Credits, current rates for destinations outside of Freephoneline’s Free Calling cities, and connection fees please see http://www.freephoneline.ca/ldServices.
- Acceptable Use Policy
The Customer may make use of the Services solely for his/her own personal, residential use. The Service is to be used for voice only purposes. The Customer may not resell or transfer the Service to any other person for any purpose, or charge any other person for the use of the Service.
The Customer must adhere to the Fongo Acceptable Use Policy which can be found at www.freephoneline.ca/terms.
- The Customer may purchase or rent equipment from Fongo in connection with the Services ("Equipment").
- The Customer shall cause the Equipment to be operated in compliance with the general operating specifications and standards of the manufacturer, and all applicable laws
- The Customer will not sell, lease or otherwise dispose of the Equipment (or any part thereof) and will keep the Equipment free of all encumbrances. In the case of Equipment purchase, the Customer may sell, lease or otherwise dispose of the Equipment after all amounts owing have been satisfied.
- At all times, the Customer will use the Equipment only in the manner for which it is designed and as a prudent and careful owner would
- The Customer will bear the risk of loss, destruction or confiscation to the Equipment from the time the Equipment is delivered to the Customer and the Customer is responsible for insuring the Equipment as of the date of such delivery.
- Fongo offers varying types of support for the Service. The Customer should review the "FAQ" and "Forum" sections of the Freephoneline site to address Service related questions. Further, the Customer may contact Fongo directly with Service related questions at the email or telephone number indicated in the "Contact Us" section.
- With respect to Equipment, Fongo will offer technical assistance and support for degradation or malfunction due to normal wear and tear to the hardware or equipment rented or purchased from Fongo unless otherwise specified.
- Fongo will not provide support for third party services, hardware, software, PC repair services, enhancements, upgrades or modifications that are not purchased, rented or licensed from Fongo.
- Fongo will not in any event be held responsible to correct or fix any problems or errors relating to or caused by the installation, configuration or modification of the Customer's equipment or system or any components thereof or to incur any costs related thereto.
8. ACCOUNT INFORMATION AND PAYMENT
- To subscribe for the Services and download the Software, the Customer shall provide the required information at the application section of this Site and create an account ("Customer Account").
- One (1) Customer Account is permitted per person.
- Any fees and charges for the Service, Equipment, or other services or products purchased under this Freephoneline Service Schedule, including shipping and handling charges, will be paid by the Customer on credit card (Visa, MasterCard or American Express).
- The Customer will be responsible for all applicable taxes.
- For purchases requiring immediate payment, Customer's credit card will be charged and Customer will be provided with an electronic receipt of payment.
- All Services or purchases that have recurring monthly charges, require pre-authorized payment via credit card. A Customer who provides payment by credit card agrees to allow Fongo to bill his or her card on each successive billing date. The Customer shall notify Fongo of any changes in credit card number and expiration date. If the card is not honoured for any reason, and if alternative billing has not been established, the Account and the Service may be suspended until the payment is received.
- Currently there is no charge for the Fongo Mobile App Service or the Fongo Softphone Services (not including Equipment, long distance or other ancillary services such as 411 calling and secondary telephone numbers). Fongo reserves the right to change the Services and any fees for the Services at any time. In the event that fees are to be charged on the Freephoneline Services in the future, Fongo will notify the Customer by providing thirty (30) days written notice to the email address submitted at registration (or the current email address, if updated in Customer Account) and will confirm credit card details for the purposes of payment. At this time, Customer must provide all requested financial information and update any Customer information in order to continue using the Services. Failure to provide such information may result in suspension or termination of the Service(s).
- Fongo reserves the right to check the credit history of Customer. Customer consents to such credit checks and shall provide all necessary information to complete such credit checks.
9. SERVICE TERM & CANCELLATION
- Service Term for Freephoneline Service.
The term of the Service will begin on the date the Software is downloaded by the Customer ("Activation Date") and will end when the Service is cancelled by the Customer or by Fongo in accordance with section 7(c) below (the "Term").
- Ancillary Services.
If the Customer orders from Fongo any ancillary or supplementary services to the Service, including, but not limited to, DSL, long distance and secondary telephone numbers, such services shall have specific fees and charges applied and may be provided on a specific term, which shall be detailed in the order process. A listing of available ancillary services and charges may be found at www.freephoneline.ca/optionalServices
- Service Cancellation
- The Service may be cancelled at any time by the Customer by providing thirty (30) days written notice to Fongo.
- If the Customer cancels the Service prior to ninety (90) days from the Activation Date, Fongo may charge an administrative fee of $100 to the Customer.
- Any ancillary or supplementary services that Customer subscribes to from Fongo under a specific service term or that have separate fees or charges attached may be subject to termination charges. The termination provisions and termination charges, if applicable, will be applied in accordance with the relevant service schedule and the Fongo Master Services Agreement.
- At any time, if the Customer does not place an out-going call using the Service for a period of ninety (90) days, Fongo has the right to cancel the Service and recall the telephone number assigned to the Customer's account. Prior to canellation of the Service by Fongo, the Customer shall receive, via email, thirty (30) days written notice of the pending cancellation.
- Fongo has the right to cancel the Service immediately due to Customer's breach of this Agreement or this Schedule or any abuse or action that is inconsistent with the Fongo Acceptable Use Policy.
- Upon termination, all rental equipment must be returned, within fifteen (15) days from the date of termination, failing which the Customer will be charged the full purchase price. Returned equipment must include all original cables and power adapters and must not have any physical damage.
Fongo shares information with trusted affiliate companies, and with specific branding partners and their affiliated companies or their agents and contractors, in order to offer customers products and services that they may find attractive. Customer acknowledges that it is aware that Fongo is working with branding partners to market and supply the Freephoneline Service to the Customer. Therefore, Customer consents to the collection, use, and disclosure of Customer's personal information by and between Fongo and its branding partners and each of their affiliates, agents and contractors for the following purposes:
- To provide a positive customer experience, and deliver, bill for, and collect payment for products and services;
- To understand customer requirements and preferences and make information available regarding products and services offered by Fongo and its branding partners, agents and contractors;
11. ORDER OF PREFERENCE
This Freephoneline Schedule forms part of the Fongo Master Services Agreement. In the event of conflict between this Schedule and the Fongo Master Services Agreement, the terms and conditions of this Schedule shall prevail to the extent of the conflict.
Intellectual Property Notices
Copyright © 2012 Fongo Inc. All rights reserved.
This Site, the Service and all information and content, images, icons, software, design, applications and other elements available on or through the Site and provided in connection with the Service are the property of Fongo Inc. and its affiliates, and are protected by Canadian and international copyright, trade-mark, and other laws. The Customer's use of the Site and the Service does not transfer to the Customer any ownership or other rights in the Site or its content or the Service.
"Freephoneline", together with all associated graphics, logos, and slogans, is a trade-mark of Fongo Inc., and may not be used or reproduced without Fongo Inc.'s express prior written permission.
Other product and company names and logos appearing on the Site may be registered or unregistered trade-names, trade-marks and service-marks of their respective owners. Any use of the trade-names, trade-marks, service-marks and logos (collectively "Marks") displayed on the Site is strictly prohibited. Nothing appearing on the Site or elsewhere shall be construed as granting, by implication, estoppel, or otherwise, any licence or right to use any Marks displayed on the Site.
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FONGO MASTER SERVICES AGREEMENT
This Master Services Agreement is entered into between Fongo Inc., a company incorporated under the Federal laws of Canada and having its principal office at 605 Boxwood Drive, Cambridge, Ontario, N3E 1A5, (“Fongo”), and the customer as defined in a Schedule forming part of this Agreement (which may be referred to as “You” or “Customer”).
The Customer agrees to subscribe to the services (“Services”) offered by Fongo and its affiliates and subsidiaries as set out in any Service Schedules executed or accepted on-line from time to time by the Customer in accordance with the terms and conditions set out and/or referenced in this Master Services Agreement (the “Agreement”) and the applicable Schedule(s).
2. Fongo Facilities
Fongo is the owner of all right, title and interest in all facilities, networks, equipment and software provided by Fongo (the “Fongo Facilities”) or has obtained the right to make the Fongo Facilities available for use by the Customer from a third party and the Customer shall have no rights therein.
It is the Customer’s responsibility to provide, prepare and maintain the Customer’s locations, facilities and equipment for the installation of Fongo Facilities and for Fongo to provide the Services to the Customer. Such provision, preparation and maintenance shall comply with Fongo’s specifications and shall be at the Customer’s expense.
In the event that the Customer fails to provide, prepare or maintain the locations, facilities, equipment or network for the installation of Fongo Facilities or any Fongo Services, or fails to do so in a timely manner as Fongo may deem necessary in the circumstances, Fongo shall not be liable for any resulting delay in commencing the Services or any service interruption and related damages, and the Customer shall be liable for any additional costs incurred by Fongo in order to install or restore the Services.
The Customer shall not, without Fongo’s written consent and then subject to such conditions as Fongo may require, make any alternation, addition or repair to Fongo Facilities or permit access to Fongo Facilities by any person not approved by Fongo.
The Customer shall be responsible for the security of and any loss or damage to Fongo Facilities located on the Customer’s premises.
If, in connection with a particular Service or under a specific Schedule, the Customer purchases any of the Fongo Facilities from Fongo, the terms and conditions related thereto shall be specified in the Schedule. However, all Fongo Facilities remain the property of Fongo until Customer has paid for such Fongo Facilities in full.
3. Billing and Payment
Unless otherwise stated in this Agreement (including the applicable Schedule), Fongo will invoice the Customer by email for Services rendered in advance on a monthly basis in respect of the Services to be provided in the said month. Recurring charges will be pro-rated for any month in which the Services are provided for only part of that month. Invoiced amounts are due thirty (30) business days from the invoice date.
Any underbilled charge shall be payable when correctly billed, provided that Fongo provides a revised invoice to the Customer within one (1) year of the date when the Service was rendered.
Fongo’s invoice will include, and the Customer is responsible for, in addition to the Charges, any applicable taxes, any other charges imposed by law, interest on prior overdue invoices and charges for returned cheques.
Interest will accrue on any amount not paid for thirty (30) business days after the date of invoice as and from the invoice date at the rate of 1.5% per month (19.56% per annum), or the maximum legal rate, if less.
Third party charges incurred by Fongo in connection with the Services are subject to change and Fongo reserves the right to pass on such charges to the Customer
In the event Fongo, at the request of the Customer, incurs unusual expense in the provision of a Service to the Customer, for example and without limitation, for special construction, the Customer shall be liable for such expenses.
Fongo shall bear the expense of maintenance and repairs required due to normal wear and tear to Fongo Facilities. Fongo may charge for additional expenses incurred when the Customer requires maintenance and repair work to be performed on the Customer’s facilities or any equipment or facilities leased to the Customer at Fongo’s standard prevailing rates.
If the Customer has any disputes concerning any Fongo invoice, it shall make full payment of the undisputed portion of the invoice and shall give written notice to Fongo within thirty (30) business days of the invoice date, together with any supporting documentation substantiating the disputed amount. After that time, the Customer will be deemed to have agreed to the contents of the invoice and will have no right to challenge any element of the invoice. Fongo will endeavor to resolve a dispute within thirty (30) business days after Fongo receives written notice of the dispute from the Customer. Any dispute resolved in favour of the Customer shall be credited to the Customer’s account on the next invoice following resolution of the dispute. Any disputed amounts determined to be payable to Fongo will be due within five (5) business days of the resolution of the dispute. The Customer must pay any undisputed portion of an invoice and subsequent invoices in accordance with this Agreement.
The Customer shall be liable to Fongo for all costs and/or expenses incurred, including legal fees, in the collection or attempted collection of any unpaid Charges.
4. Resale and Restrictions on Use
The Customer shall not resell the Services, or otherwise make the Services available to third parties for value.
The Customer shall ensure that anyone allowed by Customer to use the Service (collectively, the “End Users”) comply with the terms of this Agreement, the applicable Schedules and Fongo Acceptable Use Policy. The Customer shall be responsible for the End Users’ use of the Services and the content of End User information passing through the Services to the same extent as the Customer would be liable hereunder.
The Customer will not, nor will it permit others or assist others to, tamper with, alter or rearrange the Services or the Fongo Facilities required to provide the Services, or otherwise abuse or fraudulently use the Services, including, without limitation, using the Services:
a) in any manner which interferes with the Fongo Facilities or access thereto by other persons;
b) contrary to reasonable instructions communicated to the Customer by Fongo;
c) for any purpose or in any manner, directly or indirectly, in violation of applicable laws or in violation of any third party rights; or
d) in a manner to avoid the payment of Charges.
Notwithstanding anything to the contrary herein, if in Fongo’s sole judgment, the Customer or the End Users violate this Article, and such violation or failure to comply poses an immediate threat of harm to or destruction of Fongo Facilities or Services, violates existing law or regulation, or puts Fongo Facilities or Services at risk with its providers of network services or other customers, Fongo shall have the right to immediately take any all steps reasonably necessary to remove such threat, including but not limited to suspension or termination of the Services immediately and without notice.
The Customer shall indemnify and hold harmless Fongo for illegal activities caused by the Customer and End Users using Fongo Facilities and/or the Services. Fongo shall not: (i) have any obligation or liability to the Customer or any third party for any unlawful or improper use of the Services by Customer or an End User; nor (ii) have any duty or obligation to exercise control over the use or the content of information passing through the Services.
5. Inspection and Maintenance
Fongo may, from time to time and without notice to the Customer, upgrade, maintain, or migrate the Services or the Fongo Facilities.
In the event Fongo determines that it is necessary to interrupt the Services or that there is a potential for Services to be interrupted for the performance of system maintenance, Fongo will use reasonable commercial efforts to notify the Customer prior to such interruption. Fongo will use reasonable commercial efforts to schedule system maintenance during non-peak hours (midnight to 6 a.m. local time). In no event shall interruption for system or emergency maintenance constitute a failure of performance by Fongo.
6. Customer responsibility
The Customer shall be solely responsible for the following:
a) Maintaining the security and privacy of the Customer’s property and Customer’s transmissions using the Services, or the Fongo Facilities; and
Protecting against any breaches of security or privacy or other risks involved in installing, using, maintaining or changing the Services or the Fongo Facilities
7. Term and Termination
The Services will be provided for the period and pursuant to the terms set out in the applicable Schedules (the “Service Term”). The Schedules will be renewed for the period set out in the applicable Schedule (the “Renewal Period”) on the same terms and conditions set forth therein unless either party gives the other party written notice of its intention to terminate the applicable Schedule thirty (30) days prior to the expiry of the Service Term or the then current Renewal Term, as the case may be. This Agreement, as it applies to a Schedule, will continue so long as any Schedule remains in effect. If Services continue after expiration of the Service Term, Fongo may, upon fifteen (15) business days’ written notice to the Customer, adjust rates for Services hereunder to its then current rates. Without incurring liability, Fongo may at any time suspend, restrict or terminate any or all Services without penalty:
a) if the Customer fails to pay any undisputed amount when due and has not remedied such breach for a period of ten (10) business days following written notice from Fongo; or
b) if the Customer breaches a material obligation of this Agreement and/or a Schedule and has not remedied such breach within thirty (30) business days of receipt of written notice from Fongo;
c) immediately where any law or court order or other authority prohibits Fongo from furnishing such Services.
Either party may terminate this Agreement by notice in writing to the other party:
a) if the other party breaches a material obligation of this Agreement and has not remedied such breach within thirty (30) business days of receipt of written notice from the non-defaulting party;
b) immediately if the other party commits an act of bankruptcy or insolvency, is placed into liquidation or receivership, passes a resolution for its winding up (otherwise than for the purpose of amalgamation or reconstruction) or makes any assignment or arrangement for the benefit of its creditors; or
c) upon thirty (30) business days’ prior written notice to other without cause, during any Renewal Term.
Upon termination or expiration of this Agreement:
a) all amounts owing by the Customer shall immediately become due and payable;
b) the Customer shall immediately cease using the Services;
c) the Customer shall return to Fongo, at the Customer’s expense, and make no further use of, any Fongo Facilities at the Customer’s premises or in the Customer’s control, or any copies of any documentation or material or confidential information relating to the Services in the Customer’s possession or control.
Termination of a Schedule and/or this Agreement through any means for any reason shall not relieve either party of any obligation accrued prior to such termination.
In addition to the provisions of Section 7.4, if the Customer terminates this Agreement or a Schedule without cause, or if Fongo terminates this Agreement or a Schedule for cause, the Customer shall pay to Fongo, as liquidated damages and not as a penalty, an amount which is equal to the sum of:
a) the greater of 50% of (i) the average monthly charges for the terminated Service(s) (as determined over the previous three months) multiplied by the number of months remaining in the Service Term from the effective date of termination or (ii) if applicable, the minimum monthly commitment for the terminated Service(s) for the balance of the Service Term (prorated, in the case of a yearly minimum monthly commitment) calculated from the effective date of termination;
b) any cost which Fongo is liable to continue to pay to third parties for the remainder of the applicable Service Term incurred by Fongo with the knowledge and/or approval of the Customer for the provision of the terminated Service(s); and
c) a lump sum representing the aggregated total of any installation, one-time or monthly recurring charges associated with the terminated Service(s) which have been waived or discounted by Fongo in consideration of the Customer’s commitment to the Service Term for such Service(s).
The Customer acknowledges that the termination fees described in this Agreement represent liquidated damages and not a penalty.
The Customer does not have property rights in dial numbers and in some cases “IP” numbers or domain names assigned to them. Fongo may change such numbers or domain names assigned to the Customer provided that Fongo is requested to do so by a legal or regulatory authority, including without limitation, the Canadian Radio-television and Telecommunications Commission (CRTC), the Federal Communications Commission (FCC) or a court order, and provided that Fongo promptly notifies the Customer of any such action.
Any software and accompanying documentation provided by Fongo to the Customer remains the property of Fongo or its licensors. The Customer shall take reasonable steps to protect such software or documentation from theft, loss or damage. The Customer must review and agree to any applicable end user license agreement (provided separately or in a Service Schedule) before installing or using the software or documentation. Unless otherwise provided in the applicable end use license agreement, all software licenses will terminate upon termination of this Agreement.
9. No Warranty
FONGO DOES NOT GUARANTEE ERROR-FREE OR UNINTERRUPTED OPERATION OF THE SERVICES NOR SHALL IT BE LIABLE FOR ANY FAILURE, BREAKDOWN, INTERRUPTION OR DEGRADATION IN A SERVICE OR IN THE NETWORK OR ANY OTHER NETWORK OR CONNECTION INVOLVED IN THE PROVISION OR USE OF SERVICES WHATEVER THE CAUSE OF SUCH FAILURE, BREAKDOWN, DEGRADATION OR INTERRUPTION AND HOWEVER LONG IT LASTS. NEITHER FONGO NOR ANY OF ITS AFFILIATES, EMPLOYEES, AGENTS OR REPRESENTATIVES MAKES ANY WARRANTIES, REPRESENTATIONS ,CONDITIONS OR GUARANTEES OF ANY NATURE WHATSOEVER REGARDING ANY SERVICE, PRODUCT OR FONGO FACILITIES PROVIDED BY FONGO TO THE CUSTOMER, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO: (I) FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY WITH RESPECT TO THE SERVICES; (II) NETWORK TRANSMISSION CAPACITY; (III) THE SECURITY OF ANY TRANSACTION; (IV) THE FAULT TOLERANCE OF THE SERVICES OR THE SUITABILITY OF SAME FOR HIGH RISK ACTIVITIES; OR (V) THE RELIABILITY OR COMPATIBILITY OF THE FONGO FACILITIES AND EQUIPMENT OR SOFTWARE OF THIRD PARTIES WHICH MAY BE UTILIZED BY FONGO IN PROVIDING, OR BY THE CUSTOMER IN USING, THE SERVICES, AND ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, ARE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEREBY EXCLUDED. THE CUSTOMER ACKNOWLEDGES THAT IS HAS NOT RELIED UPON ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE MADE BY FONGO.
10. Limitation of Liability
For the purposes of this Article 10 and Articles 11 and 12, "Fongo" shall include Fongo, any affiliated or subsidiary companies of Fongo, and the directors, officers, employees, consultants, contractors and agents of all of them.
Except with regard to direct damages to real or tangible personal property, or for bodily injury or death proximately caused by Fongo's negligence, Fongo’s entire liability to the Customer, the End Users or any third party in connection with the Services(s) and Fongo Facilities or the provision or non-provision thereof is limited to the Customer’s proven direct damages, such amount not to exceed per claim (or in the aggregate during any three (3) month period) the amount paid by the Customer for one month of the affected Service(s)) (such amount to be based on average monthly charges paid by the Customer over the six (6) months prior to the month in which the damages was incurred or the length of the Agreement, whichever is less).
Without limiting the generality of the foregoing, Fongo shall not be liable for:
a) defamation or copyright or trademark infringement or the violation of any third party rights arising from the use of the Services or material transmitted or received over Fongo’s network;
b) infringement of patents arising from combining or using Customer or End User equipment with the Services or Fongo Facilities;
c) any act or omission of any connecting carrier, underlying carrier, local exchange telephone company, local access provider, or acts or omissions of any other providers of connections, facilities (including equipment), or service other than Fongo’s, which are used by Fongo, the Customer or the End Users under this Agreement;
d) delays with respect to the installation of Services or the transfer of existing Services;
e) capacity shortages not directly caused by Fongo;
f) any unauthorized use of the Services;
g) Service interruptions, errors, delays or defects in transmission or failure to transmit caused by power fluctuations or power failure at the Customer’s or the End Users’ location(s);
h) Service interruptions, errors, delays or defects in transmission or failure to transmit caused by Fongo in the performance of system or emergency maintenance under Section 5.2 hereof; or
i) Service interruptions, errors, delays or defects in transmission or failure to transmit caused by an act of God, fortuitous event, war, insurrection, riot, strike, walkout, lockout or other labour unrest affecting Fongo or its suppliers, storm, fire, flood, explosion, lightning, government restraint, delays in producing supplies, shortages of suitable labour, equipment or materials, power shortages or interruptions or any other event beyond the reasonable control of Fongo.
UNDER NO CIRCUMSTANCES SHALL FONGO BE LIABLE FOR ANY LOSS, COST, CLAIM OR DAMAGE (INCLUDING, BUT NOT LIMITED TO, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, LOST SAVINGS, LOST PROFITS, DAMAGES FOR HARM TO BUSINESS, ANTICIPATED REVENUE OR LOST REVENUE OR THE LOSS OF ANY DATA/INFORMATION) SUFFERED OR INCURRED BY THE CUSTOMER OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO THE END USERS) AND ARISING OUT OF ANY FAULTS, INTERRUPTIONS OR DELAYS IN THE SERVICES OR OUT OF ANY INACCURACIES, ERRORS OR OMISSIONS IN THE INFORMATION CONTAINED IN THE SERVICES WHETHER OR NOT FONGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Fongo will not be liable for any damages arising out of or relating to: facilities, equipment, software, applications, services or content provided by the Customer, the End Users or third parties; unauthorized access to or theft, alteration, loss or destruction of the Customer’s, the End User’s or third parties’ applications, content, data, programs, information, network or systems by any means (including without limitation viruses); or any act, omission or failure of the Customer.
In no event shall Fongo be liable for the use of the Services by the Customer, the End Users or any third party for unlawful or illegal purposes.
These limitations of liability shall apply regardless of the form of action, whether in contract, warranty, strict liability, or tort, including without limitation negligence of any kind, whether active or passive, or any combination thereof, and shall survive failure of an exclusive remedy.
11. Liability of the Customer
For the purposes of this Article and Articles 10 and 12, "Customer" shall include the Customer and any affiliated or subsidiary companies of the Customer, and the directors, officers, employees, consultants, contractors and agents of all of them.
The Customer shall be liable to Fongo for all damages caused to real or tangible personal property, or for bodily injury or death caused by the Customer or an End User.
UNDER NO CIRCUMSTANCES SHALL THE CUSTOMER BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES, INCLUDING DAMAGES FOR HARM TO BUSINESS, LOST PROFITS, LOST SAVINGS OR LOST REVENUES, WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF SUCH DAMAGES.
The Customer shall defend, indemnify and hold harmless Fongo from and against all damages, liabilities, obligations, losses, injuries, claims, demands, penalties, costs and expenses (including reasonable legal fees and disbursements) arising from any and all claims by any person, including without limitation any End User, based on: the content of any transmissions by the Customer or any End User using the Services; the use of the Service by the Customer or any End User, including without limitation, in contravention of the restrictions outlined in Article 4; the Customer’s or a End User’s facilities or connections provided by the Customer or a End User; or the breach by the Customer or any End User of any term, condition or warranty of the Agreement.
13. Confidentiality of information
Unless the Customer provides express consent or disclosure is required pursuant to a legal power, all information kept by Fongo regarding the Customer, other than the Customer's name, address, and listed telephone number, is confidential and may not be disclosed by Fongo to anyone other than
a) the Customer;
b) a person who, in the reasonable judgment of Fongo, is seeking the information as an agent of the Customer;
c) another telephone company, provided the information is required for the efficient and cost-effective provision of telecommunication service and disclosure is made on a confidential basis with the information to be used only for that purpose;
d) a company involved in supplying the Customer with telephone or telephone directory related services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose;
e) an agent retained by Fongo to evaluate Customer’s creditworthiness, to assist in the collection of the Customer's account, or to perform other administrative functions, provided the information is required for and is to be used only for that purpose;
f) a law enforcement agency whenever Fongo has reasonable grounds to believe that the Customer has supplied false or misleading information or is otherwise involved in unlawful activities;
g) a public authority or agent of a public authority, for emergency public alerting purposes, if a public authority has determined that there is an imminent or unfolding danger that threatens the life, health or security of an individual and that the danger could be avoided or minimized by disclosure of information; or
h) an affiliate of Fongo involved in supplying the Customer with telecommunications and/or broadcasting services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose.
14. Dispute Resolution
Prior to initiating arbitration, the parties shall first use good faith efforts to resolve any dispute informally and confidentially. If a dispute cannot be resolved or settled informally, it shall be settled and determined by arbitration pursuant to the laws of Ontario. Either party may at any time given written notice to the other of its desire to submit the dispute to arbitration stating with reasonable particularity the subject matter of the dispute. Within five (5) business days after receipt of such notice, the parties shall appoint a single arbitrator to arbitrate the dispute. If the parties are unable to agree upon an arbitrator, the parties shall apply to a court of competent jurisdiction to appoint an arbitrator and the parties agree to be bound by such appointment. The costs of the arbitration shall be paid as determined by the arbitrator. The award of the arbitrator shall be final and binding upon the parties.
Force Majeure. Fongo will not be liable to the Customer by reason of any failure in performance under this Agreement (other than a failure to pay money) if such failure arises out of causes beyond the reasonable control of Fongo, provided Fongo makes reasonable efforts to limit or remedy such effect. Such causes may include, but are not limited to, acts of God, acts of the public enemy, acts of civil or military authority, fires, strikes, unavailability of energy source, delay in transportation, riots or war.
Notice. Any communication required to be given under this Agreement must be given in writing and either delivered personally, or sent by prepaid registered post, overnight and/or express courier, or facsimile or other electronic communication to the person at the relevant address detailed as follows:
605 Boxwood Drive
Fax No.: 519-772-5014
The Customer: as set out in the applicable Schedule
or to such other person or address as notified in writing by a party from time to time.
Any notice or other communication is deemed to be received:
(a) if delivered personally or by overnight and/or express courier, on delivery;
(b) if sent by prepaid registered post, five (5) business days after the date of posting unless actually received earlier;
(c) by facsimile or electronic communication, the day following transmission.
Governing Law. This Agreement shall be governed by the laws of Ontario and the laws of Canada applicable therein, without reference to its principles of conflict of laws, and the parties shall attorn to the jurisdiction of the Courts of Ontario for all matters arising under this Agreement.
Entire Agreement. This Agreement together with all schedules attached hereto from time to time contains the entire contractual arrangements between the parties with respect to the subject matter of this Agreement and supersedes all other communications, negotiations, correspondence, arrangements, understandings, or representations, oral or written, between the parties relating to same.
Severability. Any provision of this Agreement that is unenforceable at law will be ineffective to the extent of such unenforceability without invalidating the remaining provisions of this Agreement. It is the intention of the parties that any provision found to be illegal or unenforceable should not be terminated but should be amended to the extent necessary to render it valid and enforceable.
Relationship of Parties. The relationship between Fongo and the Customer is that of independent contractors. Neither this Agreement nor the provision of Services by Fongo creates, nor shall be deemed to create, an agency, partnership, joint understanding or joint venture between Fongo and the Customer. The Customer does not have, and will not hold itself out as having, any authority to act for or create any obligation of, or make any representation on behalf of or in the name of, Fongo. No agents or employees of the Customer shall be deemed to be agents or employees of Fongo.
Waiver. No failure by Fongo to exercise any right under this Agreement or to insist upon full compliance by the Customer with its obligations under this Agreement will constitute a waiver of any provision of this Agreement.
Assignment. Neither party may assign this Agreement without the prior written consent of the other, except that Fongo may without the Customer’s consent assign: (i) its right to receive payment hereunder; (ii) this Agreement to an affiliate; or (iii) this Agreement in connection with the sale of all or substantially all of its assets. This Agreement will be binding upon, and will enure to the benefit of, the parties and their respective successors and permitted assigns.
Order of Preference. In the event of conflict between this Agreement and any other Schedule attached hereto by reference, the terms and conditions of the applicable Schedule will prevail to the extent of the conflict.
This Agreement has been drawn up in the English language at the express request of the parties.
The terms of this Agreement, including fees, charges, features, content or any other aspects of a Service, may change at any time and without prior notice. The Customer is responsible for frequently reviewing this Agreement posted on Fongo’s web site to obtain timely notice of any such changes.
17. Contacts and Questions?
If you have any questions about this Agreement, please e-mail Fongo at TalkFreely@Fongo.com .
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