Fongo Inc. ("Fongo") offers a Voice over Internet Protocol ("VoIP") phone service referred to as the "Service(s)". This Fongo Service Schedule ("Schedule") is an attachment to and forms an integral part of the Fongo Master Services Agreement ("Agreement") and the customer ("Customer" or "You") agrees to be bound by the terms and conditions set out in this Schedule as well as the Agreement which can be found at www.fongo.com/legal/terms/.
THIS FONGO SERVICE SCHEDULE IS SUBJECT TO THE LIMITATION OF LIABILITY CONTAINED IN THE 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 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.
The Customer, as identified in the Customer Account (created in accordance with section 7 herein), subscribes to Fongo 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.
This Fongo 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.
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 Unit 2, 99 Randall Drive, Waterloo, Ontario N2V 1C5, ("Fongo"), and the customer as defined in a Schedule forming part of this Agreement (which may be referred to as "You" or "Customer").
|1.1||The Customer agrees to subscribe to the services ("Services") offered by Fongo 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|
|2.1||Fongo is the owner of all right, title and interest in all 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.|
|2.2||It is the Customers responsibility to provide, prepare and maintain the Customers locations, facilities and equipment for the installation of Fongo Facilities in order for Fongo to provide the Services to the Customer. Such provision, preparation and maintenance shall comply with Fongos specifications and shall be at the Customers expense.|
|2.3||In the event that the Customer fails to provide, prepare or maintain the equipment or network for the installation of Fongo Facilities or any Fongo Services, Fongo shall not be liable for any resulting delay in commencing the Services or any service interruption and related damages.|
|2.4||The Customer shall not, without Fongos written consent and then subject to such conditions as Fongo may require, make any alternation, addition or repair to Fongo Facilities.|
|2.5||The terms and conditions related to any Service shall be specified in the Schedule.|
|3. Resale and Restrictions on Use|
|3.1||The Customer shall not resell the Services, or otherwise make the Services available to third parties for value.|
|3.2||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 Fongos Acceptable Use Policy which can be found at www.fongo.com/legal/acceptable-use/. 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.|
|3.3||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 for Services that are not provided to the Customer on a no-fee basis.|
|3.4||Notwithstanding anything to the contrary herein, if in Fongos 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 and all steps reasonably necessary to remove such threat, including but not limited to suspension or termination of the Services immediately and without notice.|
|3.5||The Customer shall indemnify and hold harmless Fongo for illegal activities caused by the Customer and End Users using Fongo Facilities and/or Services. Fongo shall not: (a) 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 (b) have any duty or obligation to exercise control over the use or the content of information passing through the Services.|
|4. Inspection and Maintenance|
|4.1||Fongo may, from time to time and without notice to the Customer, upgrade, maintain, or migrate the Services or the Fongo Facilities.|
|4.2||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.|
|5. Customer responsibility|
|5.1||The Customer shall be solely responsible for the following:|
|a) Maintaining the security and privacy of the Customers property and Customers transmissions using the Services, or the Fongo Facilities; and|
|b) Protecting against any breaches of security or privacy or other risks involved in installing, using, maintaining or changing the Services or the Fongo Facilities.|
|6.1||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.|
|6.2||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.|
|7. No Warranty|
|7.1||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.|
|8. Limitation of Liability|
|8.1||For the purposes of this Article 8 and Articles 9 and 10, "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, Fongos 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 Customers 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 were incurred or the length of the Agreement, whichever is less).
|8.3||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 Fongos 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 Fongos, 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 Customers 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 4.2 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.|
|8.4||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.|
|8.5||Fongo will not be liable for any damages arising out of or relating to: 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 Customers, the End Users 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.|
|8.6||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.|
|8.7||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.|
|9. Liability of the Customer|
|9.1||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.|
|9.2||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.|
|9.3||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.|
|10.1||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 43 or the Fongo Acceptable Use Policy found at www.fongo.com/legal/acceptable-use/; the Customers or a End Users 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.|
|11.1||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) 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;|
|f) 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|
|g) 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.|
|12. Dispute Resolution|
|12.1||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.|
|13.1||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.|
|13.2||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:|
99 Randall Drive
Fax No.: 519-772-5014
|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.|
|13.3||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.|
|13.4||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.|
|13.5||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.|
|13.6||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.|
|13.7||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.|
|The terms of this Agreement or the Schedules, 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 and the Schedule posted on Fongos web site to obtain timely notice of any such changes.|
|15. Contacts and Questions?|
|If you have any questions about this Agreement, please e-mail Fongo at email@example.com.|
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.
"Fongo", together with all associated graphics, logos, and slogans, are trade-marks 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.
CCTS is an independent agency whose mandate is to resolve complaints of individual and small business customers about their telecommunications services. If you have a complaint about your telephone, wireless, or Internet service, you must first try to resolve it directly with your service provider. If you have done so and have been unable to reach a satisfactory resolution, CCTS may be able to help you, free of charge. To learn more about CCTS, you may visit its website at www.ccts-cprst.ca or call toll-free at 1-888-221-1687