Special Terms and Conditions (Canada)
Effective Data: November 1, 2018
Special Terms and Conditions
These terms and conditions shall constitute an integral part of the Agreement between the Customer and the Company. These terms and conditions shall be read in conjunction with the General Terms and Conditions and other applicable guideline, policy, notice, etc. Any previous communications, representations or agreements are superseded by this Agreement.
1. THE SERVICE.
1.1 General Description. The Services consist primarily of Voice over Internet Protocol services, which may be offered by the Company in a variety of forms and packages. The Services shall consist of a combination of software solutions, products, networks, services and hosting facilities (the “Network”), components of which the Company has been granted access and/or licenses to by third party licensors, suppliers, vendors, and subcontractors (“Third Party Vendors”).
1.2 Fees. The Services provided will be charged in accordance with the terms and conditions set forth on the Service Order Schedule.
1.3 Modifications to Service. The Company and any Third Party Vendor may modify, expand, decrease, improve, maintain and/or repair the Services or Network at any time by giving written notice and without liability to the Customer or any third party although such process may require a suspension of Services or increased rates.
1.4 Compatibility. Traffic carried by the Services must be IP originated. Customer acknowledges and agrees that the Services may not be compatible with all communication equipment.
1.5 Power Outages. The Services does not function in the event of power failure. Should there be a power interruption in the power supply, the Services will not function until power is restored. A power failure or disruption may require that Equipment be reset or reconfigured prior to utilizing the Services. Power disruptions or failures will also prevent dialing to emergency service numbers including any 911 calling feature that may be activated in or accessed by the Services.
1.6 International Direct Dialing. If Customer uses International Direct Dialing Service from the Company, exact rates for each destination can be referred to the Company’s website. International Direct Dialing Services and rates that the Company will charge Customer are subject to change with or without notice. The Company does not guarantee international call delivery and may block routes it determines may be improperly using the Services at any time.
2. SERVICE LIMITATIONS. IMPORTANT INFORMATION ABOUT EMERGENCY 9-1-1 SERVICE
This IMPORTANT INFORMATION ABOUT EMERGENCY 9-1-1 SERVICE (“E911 Acknowledgement”) is agreed, acknowledged and accepted by Customer in connection with Customer’s purchase and use of YOTO Business Voice System Service.
2.1 Description: VoIP Services allow the Customer to make or receive telephone calls over the Internet to or from the public switched telephone network. The nature of VoIP telephone calls, while appearing similar to traditional telephone calling services, create unique limitations and circumstances, and the Customer acknowledges and agrees that differences exist between traditional telephone service and VoIP telephone services, including the lack of traditional 9-1-1 emergency services.
2.2 9-1-1 service: Because of the unique nature of VoIP telephone calls, emergency calls to 9-1-1 through the Customer’s VoIP Service will be handled differently than traditional phone service. The following provisions describe the differences and limitations of 9-1-1 emergency calls, and the Customer hereby acknowledges and understands the differences between traditional 9-1-1 service and VoIP calls with respect to 9-1-1 calls placed to emergency services from its account as described below.
2.3 Placing 9-1-1 calls: When the Customer make a 9-1-1 emergency call, the VoIP Service will attempt to automatically route the Customer’s 9-1-1 call through a Third Party Vendor to the Public Safety Answering Point (“PSAP”) corresponding to the Customer’s address of record on its account. However, due to the limitations of the VoIP telephone services, the Customer’s 9-1-1 call may be routed to a different location than that which would be used for traditional 9-1-1 dialing. For example, the Customer’s call may be forwarded to a third-party specialized call center that handles emergency calls. This call center is different from the PSAP that would answer a traditional 9-1-1 call which has automatically generated the Customer’s address information, and consequently, the Customer may be required to provide its name, address, and telephone number to the call center.
2.4 How the Customer’s information is provided: The VoIP Service will attempt to automatically provide the PSAP dispatcher or emergency service operator with the name, address and telephone number associated with the Customer’s account. However, for technical reasons, the dispatcher receiving the call may not be able to capture or retain the Customer’s name, phone number or physical location. Therefore, when making a 9-1-1 emergency call, the Customer must immediately inform the dispatcher of its location (or the location of the emergency, if different). If the Customer is unable to speak, the dispatcher may not be able to locate itself if its location information is not up to date.
2.5 Correctness of information: The Customer is responsible for providing, maintaining, and updating correct contact information (including name, residential address and telephone number) with its account. If the Customer does not correctly identify the actual location where it is located, or if the Customer’s account information has recently changed or has otherwise not been updated, 9-1-1 calls may be misdirected to an incorrect emergency response site.
2.6 Disconnections: The Customer must not disconnect the 9-1-1 emergency call until told to do so by the dispatcher, as the dispatcher may not have its number or contact information. If the Customer is inadvertently disconnected, the Customer must call back immediately.
2.7 Connection time: For technical reasons, including network congestion, it is possible that a 9-1-1 emergency call will produce a busy signal or will take longer to connect when compared with traditional 9-1-1 calls.
2.8 9-1-1 calls may not function: For technical reasons, the functionality of 9-1-1 VoIP emergency calls may cease or be curtailed in various circumstances, including but not limited to:
Failure of service or the Customer’s service access device- if the Customer’s system access equipment fails or is not configured correctly, or if its VoIP service is not functioning correctly for any reason, including power outages, VoIP Service outage, suspension or disconnection of its service due to billing issues, network or Internet congestion, or network or Internet outage in the event of a power, network or Internet outage; the Customer may need to reset or reconfigure the system access equipment before being able to use the VoIP Service, including for 9-1-1 emergency calls; and changing locations – if the Customer moves its system access equipment to a location other than that described in its account information or otherwise on record with the Company.
2.9 Alternate services: If the Customer is not comfortable with the limitations of 9-1-1 emergency calls, the Company recommends that the Customer terminate the VoIP services or consider an alternate means for accessing traditional 9-1-1 emergency services.
2.10 Inform other users: The Customer is responsible for notifying, and the Customer agrees to notify, any user or potential users of its VoIP Services of the nature and limitations of 9-1-1 emergency calls on the VoIP Services as described herein.
2.11 Liability: Customers are advised to review this section with respect to the Company’s limitations of liability (as appropriate to each company).
THE CUSTOMER CONFIRMS THAT THEY HAVE READ AND UNDERSTOOD THESE 9-1-1 SERVICE DIFFERENCES
BY ACCEPTING THESE TERMS, THE CUSTOMER ACCEPTS THE COMPANY’S VoIP SERVICES ON THESE TERMS, AND HEREBY WAIVES ANY AND ALL CLAIMS OR CAUSES OF ACTION AGAINST THE COMPANY, ITS AFFILIATES, UNDERLYING CARRIERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR CONTRACTORS, LICENSORS, AND SUPPLIERS ARISING FROM OR RELATING TO THE COMPANY’s Phone 9-1-1 SERVICE. THE CUSTOMER ALSO AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE ABOVE PERSONS FROM ANY SUCH CLAIMS FOR DAMAGES, INCLUDING LEGAL FEES. THE CUSTOMER’S WAIVER AND INDEMNITY IN THIS SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
3. CUSTOMER NETWORK FACILITIES AND EQUIPMENT.
The Company may provide the acquisition, configuration, installation and testing of the Equipment from the Third Party Vendor if such Services are purchased by the Customer. The Company does not warrant that the Equipment will be free from vulnerability, intrusion, attack, or other damage. The Company does not warrant that the operation of the Equipment will be uninterrupted or error-free. The Company resells the Equipment from the third party hardware manufacturer and provides no warranty except the manufacturer’s warranty (if any).
The Customer can also use its own equipment if the equipment is approved and compatible with the Company’s Services. Customer shall be solely responsible for the acquisition, installation, testing, maintenance and security of its own equipment and network facilitates needed to utilize the Services, including facilities between Customer’s Point of Presence (“POP”) and Customer’s users.
4. DATABASE UPDATES
Customer shall furnish all information reasonably requested by the Company in order for the Company to provide each Service. Customer shall ensure that all information and data that it has given or that it will give to the Company, including but not limited to Customer’s billing information, mailing address and email address, is current and accurate at all times. The Company shall have no responsibility to verify the accuracy of any information provided by Customer and shall have no liabilities or obligations relative to any amount billed or notices delivered incorrectly as a result of inaccurate information provided by Customer and Customer’s failure to correct or update the same.
5. UNLAWFUL AND PROHIBITED USE.
5.1 Automated Calling Prohibition. Unless Customer purchases the short duration calling Service from the Company, Customer agrees that all calls it originates through the Services shall be initiated by a human user and conducted by that human user. Unless otherwise agreed upon in writing, Customer agrees that it shall not use the Services to initiate any automated communication. Customer shall ensure that any and all automatic Calling shall be at all times conducting in compliance with federal, state and local, laws regulations and rules.
5.2 General Prohibitions. Customer is expressly prohibited from using the Services in a manner that would, in any way, constitute or encourage conduct that is improper, including uses that are criminal in nature, that may give rise to a civil liability, or that otherwise violates any applicable laws or regulations. Examples of such improper uses include, without limitation, attempts at phishing or otherwise improperly attempting to gain access to financial information and making calls to numbers included in a government Do Not Call List. In addition, Customer is expressly prohibited from using the Services: (a) for any abusive or fraudulent purpose; (b) in a manner that enables Customer to avoid any obligation to pay for the Services; (c) in a manner that is deemed to interfere with, disrupt, or present a risk to the Services, Network, software, property, or security of the Company, its customers, its Third Party Vendors or other third parties, whether directly or indirectly; (d) in a manner that results in usage inconsistent with the Company‘s expectations or the purpose for which the Company is providing the Services; and/or (e) in a manner that may violate this STC, or the policies of the Company. Customer shall provide, at its cost, all reasonably necessary security equipment, software, facilities and other apparatuses to ensure that the Services are not used in a fraudulent or unauthorized manner, whether by Customer and any third party.
5.3 Rights. If the Company determines, in its sole discretion, that Customer is or any of its customers are using the Services in a manner that violates or is contrary to this Clause, then the Company, as well as any effected Third Party Vendors, shall have the right, without liability, to block, suspend or terminate the Services, or any part thereof, with written notice. Customer shall be responsible for any liabilities and obligations arising from Customer’s use of the Services that is contrary to, or violates this Clause. If the Company, in its sole discretion, believes that Customer’s actions or omissions may be considered criminal in nature, the Company may forward personally identifiable information to the appropriate authorities for investigation and prosecution. Customer hereby consents to such forwarding.
5.4 Suspicious Activity Service Termination. In addition to and not to limit any other rights of the Company, the Company has right to suspend or terminate Service if the Company, in its sole discretion, believes that any activity on the Customer account is or could be suspicious in nature.
6. AUDIT AND LAW ENFORCEMENT.
The Company reserves the right to audit, track or monitor Customer’s use of the Services to (a) enforce the provisions of this STC; (b) conform to legal requirements or comply with legal process; (c) protect and defend the rights or property of the Company or any Third Party Vendors; (d) respond to request for identification in connection with a claim of copyright or trademark infringement, or unlawful activity; (e) act to protect the interests of the Company‘s customers or such Customer’s users; (f) conform to the Company‘s contractual obligation with any Third Party Vendor; or (g) provide the Services. Customer agrees that this STC are sufficient notice to Customer of such monitoring to the extent any notice is required under applicable federal or state law.
The Services utilizes the public Internet and third party networks. The Company and its Third Party Vendors shall not be liable for any lack of privacy which may be experienced by Customer with regard to the Services. Customer shall be solely responsible for any liabilities arising from Customer’s lack of privacy.
Neither the Company nor any of its Third Party Vendors operate or control the content transported by the Services. As such, neither the Company nor any of its Third Party Vendors shall have any liability or responsibility for the content of any communication or information transmitted via the Services.
9. LOCAL NUMBER PORTABILITY (LNP).
If Customer desires to port a number either to or from the Company‘s Network, Customer shall execute and/or deliver to the Company all documents and information requested by the Company, including, but not limited to, all required Letters of Authorization (“LOA”). Customer acknowledges and agrees that the Company shall have the right to refuse to port any number to its Network for any reason. Customer agrees that the Company, in its sole discretion, may port a number to any Third Party Vendor selected by the Company in order to provide the Services, and that may be required to be named as the Customer of Record for such number. The Company will make reasonable commercial efforts to execute all port requests; however, the Company has no control over any porting process (either to or from the Company‘s Network). As such, the Company makes no guaranties or warranties that a number will be ported on a particular day, or that a submitted port request will actually result in the number being ported. The Company will inform Customer of port dates when such dates are known to the Company. The Company reserves the right to change the port date in its sole discretion by giving the Customer written notice Customer agrees to comply with all applicable rules, regulations and orders, including but not limited to all FCC and public utility commission rules regarding number porting. The Company makes no warranty that the Services associated with a number will be uninterrupted or error free during any porting process. Customer acknowledges that, if any account associated with the number being ported is canceled or suspended prior to the port date, such number may not be eligible for porting. It is Customer’s sole responsibility and obligation to timely cancel its account(s) with the provider from which the number is being ported, and Customer shall be solely responsible for any contractual obligations it has with such provider and any applicable fees and charges, including early termination fees. Number porting is done at the Customer’s sole risk. Under no circumstances shall the Company be liable for any damages, including, without limitation, loss of profits, associated with porting or not porting a number. Customer agrees to comply with all LNP policies established from time to time by the Company. The Company may modify its LNP policies at any time by giving thirty (30) calendar days’ notice to the Customer to that effect and Customer agrees to comply with all such modifications.
Certain Services provide functionality that allows the Customer to record audio and data shared during the call. The Customer is solely responsible for complying with all applicable laws in the relevant jurisdictions while using recording functionality. The Company disclaims all liability for the Customer’s recording of audio or shared data, and the Customer agrees to hold the Company harmless from damages or liabilities related to the recording of any audio or data. The Company does not guarantee the availability or entirety of the recording data.
The Customer’s recorded audio files may be accessed and downloaded from the Company’s authorized channel, including but not limited to online portal with one authorized static IP address provided by the Customer. The Company reverses the right to deny the access of the Customer’s recorded audio files for whatever reason. The recording files will be automatically cleared on the last day of each month unless further agreed by the Company and the Customer in writing.
11. TOLL-FREE SERVICE
11.1 Service Limitation
“Toll-free Service” means toll-free calls originating and terminating anywhere within Canada or the Contiguous United States 48 states that are received by the Customer using long distance services and toll-free number(s).
The toll-free Service is intended to be used as a toll-free inbound-only service and does not provide any outbound calling, 911 services, 411 or any operator services. The Customer is prohibited from using the toll-free Service for abusive, fraudulent, harassing, defamatory, deceptive, or any similar behavior.
All special configurations are subject to the Company’s approval and the Company reserves the right to terminate this Agreement where proper interoperability testing has not been completed when required. Any traffic deemed to jeopardize the integrity of the Company’s Network may be immediately blocked by the Company.
11.2 Toll-free Number Portability
Any toll-free number ported in by the Customer for use with the Service may incur a one-time activation fee, though some or all of this fee may be waived at the sole discretion of the Company.
Toll-free number(s) ported in by the Customer for use with the Service remain the property of the Customer and may be ported to another carrier of the Customer’s choosing as long as the Service remains active for the duration of the porting process. If the Customer cancels one or more ported-in toll-free numbers from their Service or terminates the Service in whole prior to porting toll-free numbers away, any canceled toll-free numbers may not be available to port away. It is the Customer’s responsibility to complete, prior to cancellation, the porting away of any ported-in toll-free numbers the Customer wishes to retain as their property.
Toll-free numbers provided by the Company for use with the Service, however, are included as an integral component of the Service as a bundled service that includes the toll-free number(s), and may include virtual automated attendant, call recording storage and access, call reports, and other related services.
12. AUDIO CONFERENCE SERVICE
12.1 Dial–in Numbers
If Company provides Customer with dial-in service numbers, Customer agrees to the following:
a) That Customer does not own the dial-in service numbers, or, network addressing information and that Customer will not transfer it to anyone else or try to do so; and
b) That Company reserves the right to withdraw or change such numbers or network addressing information without giving Customer advance notice or at the end of the Contract.
c) That Company reserves the right to reclaim any dial-in numbers provided for Services (“Dial-In Numbers”) if such Dial-In Numbers are “inactive” for 30 calendar days. The term “inactive” is defined as no usage on a specific number/service and no upcoming reservations scheduled for such number/service.
12.2 Responsibility For The Customer’s Conference Room
The Customer is responsible for maintaining the confidentiality of its audio conference room and personal identification numbers (PIN) used in accessing different conference rooms with the Services and for all uses of the Services in association with the Customer’s rooms whether or not authorized by the Customer. The Customer agrees to immediately notify the Company of any unauthorized use of its audio conference room of which the Customer becomes aware. The Company may change the PIN for the Customer upon requested.
12.3.1 The Company shall provide no warranty to Customer but will provide support services for Customer during the Service term, including 24/7 Customer Service hotline, IT support and Backup conference service standby.
12.3.2 The Customer understands and agrees that the Company’s Services are provided “As Is” and “As Available”. The Company makes no warranty or representation regarding any information, materials, goods or services obtained through Company’s Services or that Company’s Services will meet any of the Customer’s requirements or be uninterrupted, timely, secure or error free. The Company is not liable for the Company’s or omissions of other service providers, for any information or content of communications, third party services, equipment failure or causes beyond Company’s reasonable control.
13. COPYRIGHT, TRADEMARK AND UNAUTHORIZED USE.
The Service and any Equipment, firmware or software used to provide the Services or provided to Customer in conjunction with the Services, and all information, documents and materials provided or offered by the Company may be protected by trademark, copyright or other intellectual property laws and international treaty provisions. Customer is only granted a nontransferable, revocable license to use such equipment, firmware or software, information, documents and materials (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement, and exclusively for use in connection with the Services. Any Equipment, firmware or software, information, documents and materials provided by the Company to Customer pursuant to this Agreement shall be included in the Service Order Schedule. These terms of Services shall not be construed to grant Customer any right to use the Company‘s, or its parent company’s or Affiliates’, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “Marks”) or otherwise refer to the same in any marketing, promotional or advertising materials or activities. Customer agrees that the Company may identify Customer as a customer of the Company and recipient of the Services for the purposes of marketing the Company‘s Services. Further, Customer hereby grants the Company the right to use Customer’s logo/trademark on its website and other material solely for the purpose of advertising the sales by the Company of similar services to third parties.
14 COMMERCIAL USE
All products and Services offered hereunder are for commercial (business) use by Customer. Resale of Service, use of the equipment, products, services, hardware and software provided hereunder, whether provided by the Company at no Charge or for Charge, is prohibited and Customer shall use its best efforts to ensure that the equipment, products, services, hardware and software offered hereunder are used only for the purposes intended. Resale without the express written consent of the Company, will subject Customer to termination of this Agreement.
In addition to any other indemnification provisions herein, Customer agrees to indemnify and hold the Company, the Third Party Vendors, and the parent companies, sister companies, employees, contractors, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys’ fees and costs of litigation, incurred or suffered by such party relating to Customer’s or its Customer users acts or omissions, consumption, use and/or resale of the Service(s) and/or breach of these terms of service, including, without limitation, any claims asserted by any third party. The Company shall promptly notify Customer in writing of any claim for which it is obligated under this indemnity and for which the Company may seek indemnification.