THERE ARE IMPORTANT 911 TERMS, CONDITIONS AND LIMITATIONS RELATED TO THE FONECO VOIP SERVICE SET FORTH IN SECTION 8 OF THIS AGREEMENT. BY SUBSCRIBING FOR THIS SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO ALL OF THE TERMS, CONDITIONS AND LIMITATIONS SET FORTH IN THIS AGREEMENT INCLUDING THOSE RELATING TO 911.
When dialing emergency (911) calls using one of Foneco’s mobile applications, depending on the type of device used the Service will automatically route those calls via your cellular provider. If your device does not support this function the Service will attempt to dial the emergency number over Wi-Fi or 3G/4G if available.
Important: All voice communications and other communications using Foneco mobile applications will be carried over Wi-Fi or 3G/4G when this option is enabled. Data communications sent over 3G/4G may be subject to carrier charges depending on your plan and customer agreement with your carrier. The Service is for commercial and normal business use only. Foneco reserves the right to suspend the Service for unreasonable use at its own discretion.
This agreement (“Agreement”) for Voice and/or Fax over Internet Protocol (VoIP/FoIP) related Services is between Foneco, Inc., a Canadian corporation (“we”, “us” or “Foneco”) and the user (“you”, “user” or “Customer”) of Foneco’s Service.
Device(s) – any device(s) including any of its components, such as analog telephone adapter, IP phone, Gateways, Softphone or any other IP connection device.
Voice Service – a VoIP/FoIP telephone connection that allows you to make or receive telephone calls over the Internet to or from the public switched telephone network (PSTN) when you subscribe to a Foneco Service Plan. The Voice Service also permits you to make or receive calls with other Foneco subscribers entirely over the Internet.
Electronic Fax Service – a fax service providing you with the capability to send and receive fax documents using electronic mail (“email”).
Service – a Voice Service and/or Electronic Fax Service provided to you by Foneco with the features then indicated, and subject to the then current terms and rates of the Foneco Service Plan to which you subscribe as set forth on the Foneco web site from time to time.
You represent that you are, or lawfully represent, a legal person capable of entering into this Agreement. Furthermore, if you are an individual, you are of majority age.
This Agreement governs the terms and conditions of both the use of the Service provided, and the Devices used in conjunction with the Service. By activating the Service and by clicking “I Accept” with regards to this agreement, you acknowledge that you have read, understood, and agree to be bound by the terms and conditions of this Agreement.
The Service is offered on a monthly basis for a term that begins on the earlier of the date you activate your account online or 10 days after the date your account was created (herein referred to as the “Anniversary Date”) and ends on the day before the same date in the following month. This Agreement will automatically renew on a monthly basis, at Foneco’s then current rates and terms, without further action by you unless you provide Foneco with written notice of non-renewal not less than ten  days prior to the end of the monthly term in which the notice is given. You agree that you are purchasing the Service for full monthly terms, meaning that if you terminate the Service prior to the end of a monthly term, you will be responsible for the full month’s charges to the end of the then-current term, including without limitation unbilled charges, plus a disconnect fee (where applicable), all of which will be immediately due and payable. Upon expiry of the term or termination of the Service, you remain responsible for paying all unpaid and accrued charges due.
4- User Requirements
To use the Service, the user must have a high-speed Internet connection (not provided by Foneco) via cable, DSL or Ethernet. Typical bandwidth required for each simultaneous telephone call is 40Kbps, however you may require up to 90Kbps in certain circumstances, such as when making a fax call.
To use the Electronic Fax Service, the user must provide an email address for purposes of sending and receiving the fax documents, have all equipment necessary to send and receive email and have access to an email service for which, if applicable, user pays any fees associated with such email service.
To use the Voice Service, a Device which may be procured from Foneco is also required. In the case of a Foneco Softphone Device the user must also have a supported computer. In the case of a Foneco Mobile App Device the user must also have a supported Smartphone.
Also you may elect to connect through a Router. You assume all responsibility regarding the suitability of the router, programming of the router, and connection to the Internet and its ability to carry the traffic required for the Service.
5- Use Of Service
5.1 Conditions Applicable to Home Phone Service Plan Use: Foneco Home Phone Service Plans are only for personal use. Use of a Home Phone Service Plan for business purposes is strictly prohibited.
5.2 Conditions Applicable to All Plans:
5.2.1 As-Is: The Service and Device are provided to you on an AS-IS basis.
5.2.2 Prohibition Against Resell, etc: You are not to resell, lease, license, sub- license, transfer or assign the Service or the Device to any other person for any purpose, or make any charge for the use of the Service, without express written permission from Foneco in advance.
5.2.3 Current Terms: The features, terms and limitations associated with the Service offered by Foneco from time to time shall be as then set forth on the Foneco web site. It is your responsibility to consult the Foneco web site from time to time to be informed of any new feature, terms and limitations, or changes to the features, terms and limitations, associated with the Service you have subscribed for.
5.2.4 411 Service: This service is available to Voice Service users and will be billed at the then current rates for this service established by Foneco as posted on the Foneco web site. These rates can be changed from time to time without notice at Foneco’s sole discretion.
5.2.5 Other Users: You may allow other individuals in your household (when you subscribe to a Home Phone or Mobile Service Plan), business or office (when you subscribe to a Business, SIP Trunking or Fax Services Plan) to use the Service. However you are fully responsible for their compliance with this Agreement and for payment of all charges relating to their use of the Service.
5.2.6 Simultaneous Calls: Except as otherwise indicated on the Foneco web site you may only make one simultaneous call with a Home Phone or Mobile Service Plan.
The number of simultaneous calls possible with a SIP Trunking Service Plan is equal to the number of lines subscribed to with that plan.
For the Business Service Plan the number of simultaneous calls that can be made by any one or more extensions to numbers other than extensions on the same account is equal to five plus the number of extensions subscribed to in that account. The number of simultaneous calls that one extension can make to other extensions on the same account is five.
For the Electronic Fax Service, the number of simultaneous fax calls is limited to ten.
You agree that your use of the Service to make more simultaneous calls than allowed per Service plan will obligate you to pay Foneco for additional Service plans or lines, in the case of the SIP Trunking Service Plan, and that your will be held accountable for all periods, including past periods, in which you made excess simultaneous calls.
5.2.7 Pay-As-You-Go and Excess Calling Charges: For users who have subscribed to a Foneco Pay-As-You-Go Service Plan or a Service Plan that includes some usage and charges for excess usage, you will be charged at the rates indicated on the Foneco web site for all calls including incoming calls, outgoing calls and calls to voicemail. Take note that the rates associated with different Service Plans may be different from one another, so care must be taken to consult the rates applicable to your specific Service Plan.
5.2.8 Long-Distance Calls: Unless included with your specific Service Plan, all calls made using the Service to non-Foneco subscribers will be considered long distance calls and will be charged to you at the applicable rates as stipulated on the Foneco web site.
5.2.9 Foneco’s applications: allow users to access their Foneco account for purposes of viewing and updating certain account settings, personal information and user preferences. To use the Service, you must have a compatible device with the Foneco application properly downloaded as well as a valid, active Foneco paid service subscription. Foneco’s applications are not a replacement for your mobile or fixed line service.
6- Use Policy and Prohibitions:
6.1 You agree to abide by the following policy concerning use, as may be modified from time to time and communicated to you via the Foneco web site, by email or other manner determined by Foneco in Foneco’s sole discretion. By using the Service you hereby agree to: (a) shall abide by all applicable laws, rules, and regulations relating to, without limitation, the electronic use, posting or transmission of content, software or other matter; and (b) shall not (nor allow any person to) (i) use the Service or the Foneco Web site in any manner which is illegal, fraudulent or deceptive, harassing, threatening, harmful, libelous, defamatory, abusive, slanderous, hateful, sexually, racially or ethnically objectionable, vulgar, pornographic, obscene, or otherwise objectionable material of any kind including but not limited to any material that encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, provincial, state, national or international law (including international treaty) or regulation; (ii) attempt to gain unauthorized access to the database or other network or computer systems of Foneco or any other person; or (iii) interfere with another’s use and enjoyment of the Foneco Services. Furthermore, you may not, nor may you allow others, directly or indirectly, to attempt to or actually: (a) disrupt, disable, impair or interfere with, overburden, alter or modify the Service or restrict or inhibit in any way any other visitor or user from accessing or using the Service, including, without limitation, by means of “hacking”, “cracking” or defacing any portion of the Service, the Device and/or any activities being conducted on or through the Service; (b) transmit any software, device, routine or other materials that contain any virus, worm, time bomb, “Trojan horse”, or other harmful, destructive or disruptive component; (c) use any robot, spider, site search/retrieval application, or other manual or automated device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Service; or (d) collect or harvest any information about other visitors or users of the Service and/or any of Foneco’s employees, officers, directors, shareholders, partners, representatives, agents or content providers by any means including, but not limited to, those described in this Agreement. You may not, nor may you allow others, directly or indirectly, to obtain or attempt to obtain any materials or information through any means not made expressly available through the Service and as expressly permitted under this Agreement. Without limitation, Foneco reserves the right to terminate your Service immediately, resulting in the immediate payment of all amounts due, without advance notice if you violate the above restriction. Further, you will be liable to Foneco and other third parties that suffer prejudice from your unauthorized use, misuse or modification of the Service.
6.2 Unauthorized Use: You agree to immediately notify Foneco of any unauthorized use of your account or any other breach of security known to you.
6.3 Use of Device: You agree that where the Device is provided by Foneco, it is exclusively for use in connection with the Service. You agree not to tamper with or modify said Device in any manner, including, without limitation, change the electronic serial number or Device identifier, or to perform a factory reset, or otherwise alter the firmware. You agree to use the Device in the manner and for the purpose in which it was intended and solely as expressly permitted under this Agreement.
6.4 Stolen Device and Fraudulent Use: You must notify Foneco immediately, in writing by email, and by calling the Foneco customer support line, if a Device is stolen. When you call and write Foneco you must provide your account number and a detailed description of the circumstances of the theft or fraudulent use of the Device.
6.5 Non-infringing and Reverse-Engineering: Any software made available to you by Foneco is governed by these Terms of Service and the terms set forth in the applicable end user license agreement. You may not reverse engineer, decompile or otherwise attempt to discover any source code contained in the Device and the software available on the web site (as may be applicable). Furthermore, you may not copy, reproduce, distribute or relocate the Device or the software, or make any other use not expressly permitted under this Agreement or prohibited under the law.
6.6 Unauthorized Use or Patterns: You agree that you shall not use the Service in a manner that is not expressly permitted by this Agreement and the terms and conditions of the Foneco web site (support.foneco.co)
6.7 Illegal Uses: Use of the Service or any of the Devices for an injurious, illegal or immoral use or purpose is strictly prohibited.
7- Service Limitations
7.1 Use of Service and Device by Customers outside the United States and Canada: Foneco does not presently offer or support the Service to customers located outside the United States and Canada. If a Device is installed outside the United States and Canada and the Service is used, there is the risk that such activity violates laws in the country where you do so. You acknowledge and agree that you will be solely responsible for any violations of local laws and regulations resulting from such use. You are liable for any and all use of the Service and/or Device by any person making use of the Service or Device provided to you. You acknowledge and agree that Foneco is not liable in this regard.
Further, Foneco reserves the right, at its sole discretion, to limit or terminate your ability to access the Service from selected countries.
7.2 Toll Charge Numbers: Foneco Services may not access certain special service phone numbers such as, without limitation, 900- and 976- numbers. Foneco reserves the right to limit your ability to call any such numbers at its sole discretion.
7.3 Service Outage or deterioration due to third parties: You acknowledge and understand that the Service will not operate in the event of a power failure, or a failure of the Internet link. Excessive congestion of the Internet link may lead to deterioration in quality, which in turn can lead to Service failure. You acknowledge and agree that Foneco is not liable in this regard.
7.4 Service Outage Due to Suspension of Account: You acknowledge and understand that should your account be terminated or suspended due to non-payment or other breaches of this Agreement, the Service will not function.
7.5 Not a traditional telephone service: You recognize, acknowledge and understand that the Service is not a traditional telephone service. Differences exist between traditional telephone service and the Foneco Service including but not limited to the lack of traditional 911 services and privacy, as explained below in Section 8. The Service is subject to a different regulatory treatment than traditional phone services and may limit or affect your rights of redress before the CRTC.
7.6 Privacy: Foneco Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. You acknowledge and agree that Foneco is not liable for any lack of privacy, which may result by the use of the Service. Please refer to our Privacy Statement at the Foneco web site for additional information.
8- Emergency Services – 911 Dialing
8.1- Foneco’s Emergency Calling Service: 911
Nomadic VoIP Service
The Voice Service offered by Foneco is known as a Nomadic VoIP Service. This means that Foneco allows Customer to make calls from anywhere that you have access to a broadband internet service. As you know, you can simply bring your Device with you and use the Voice Service wherever you are located.
However, because of these nomadic capabilities, Foneco is not currently able to automatically detect whether the Voice Service is being used from the registered service address or from some other location. Consequently, when a subscriber relocates, Foneco no longer has valid 911 routing or ALI (Automatic Location Information) data with which to process 911 calls from that Customer, unless the Customer updates his/her location information.
Foneco’s 911 Service
Following the directives made by the Canadian Radio-television and Telecommunication Commission ‘CRTC’ pursuant to Telecom Decision CRTC 2005-21, Foneco has, in compliance with such directives, implemented an emergency calling service or 911 service (the ‘911 Service’).
In order to use the Foneco 911 Service, you must be a Foneco Voice Service subscriber. You must also activate the 911 Service according to the instructions provided by Foneco.
Once the 911 Service is activated, all calls by the Customer using the 911 Service will be connected to an intermediary (such as a third party call centre), which in turn will transfer the call to the proper PSAP or emergency services agency. Based on the information provided by the Customer, the intermediary will direct your call to the appropriate emergency services agency or a public safety answering point.
8.2 Not a traditional 911 Service
Users of the Foneco Mobile App Service on mobile phones should note that dialing 911 using the Foneco Mobile application on your mobile phone is equivalent to dialing 911 using the native dialer of your mobile phone. The Foneco Mobile application will use the native dialer of your mobile phone to complete your 911 call via your mobile carrier.
Other Foneco users including users of the Foneco Mobile App Service on devices that do not have phone capabilities (example: iPOD touch), should note that there are inherit differences in functionality between the Foneco 911 Service and traditional 911 emergency services and should carefully read the following information.
8.3 Limitations to the 911 Service
Foneco is advising Customer of the following inherent limitations to the 911 Service due to the nomadic characteristics of VoIP Service.
The 911 Service will not be accessible or available in the following situations:
- A service outage has occurred for any reason, including the following:
- Network Congestion;
- Power failure or disruption;
- Internet connection outage/termination by your Internet service provider;
- Foneco terminates, suspends or cancels your Service for any of the reasons specified in our Terms of Service.
The 911 Service may not be accessible or may suffer quality and reliability issues if:
- You are a Voice Service Customer who brought their own Device and that Device does not support the G.711U codec. The ERS (Emergency Routing Service) codec policy enforces the G.711U codec for 911 calls. Subscriber Devices must be able to support the G.711U codec in the RTP payload. If G.711U is not supported by the Devices, the 911 call will be routed over non-emergency routes, which could result in call setup delays and loss of the quality and reliability available with ERS routes. Note that you are not required to use the G.711U codec as the preferred codec for your Device, but it must be offered as a supported codec in order to make use of the ERS on 911 calls.
- Misrouting of 911 calls occur for any reason including but not limited to your failure to follow correct activation procedures for 911 calling or your provision to us of incorrect or inaccurate or not current information in connection with the 911 Service.
The 911 emergency responders that are part of the 911 Service may be delayed if:
- You have not provided an initial location for the 911 Service during account activation AND received an email from Foneco confirming your successful activation; All 911 calls are routed to an emergency call center where an emergency dispatcher will confirm the provided location or in case the user has not provided a location, ask for the current location.
- You do not provide us with current and accurate location information (i.e., where you are);
- You do not advise us immediately of any changes that you make to the location information that you initially provided us;
- Verification of your location information is not completed. It can take up to 24 hours to complete the verification once we receive new location information.
In the event that an emergency call in progress is interrupted, 911 emergency personnel will be unable to call you at the phone from which you originated the call if:
- You have call-forwarding, do-not-disturb or other similar features programmed and in use at the time you dial a 911 call;
- Your telephone ringer is set to OFF;
In the interest of everyone’s safety, you are obliged to inform all potential users (including your employees and officers of your business and visitors to your business, office or household) of your Foneco line of these important limitations.
8.4- Limitation of Liability
Neither Foneco nor its affiliated or related companies, divisions, nor any of their respective officers, employees, directors, shareholders, content providers or service partners shall be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to the Service and/or the 911 Service, including, without limitation, your inability to dial 911 from your line or to access emergency service personnel unless it is proven that the act or omission causing the claim, damage, or loss constitutes gross negligence, recklessness, or intentional misconduct on the part of Foneco.
You agree to defend, indemnify, and hold harmless Foneco, its affiliated and related companies, divisions, and their respective officers, employees, directors, shareholders, affiliates and agents and any other third party service provider who furnishes services to you or to us in connection with Service, from and against any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable legal fees and expenses) by, or on behalf of, you or any third party or user of your Service relating to the absence, failure or outage of the Service, including, without limitation, the 911 Service and/or the inability of Customer and/or any third person or party or user that gains access to or use of the Service with or without your express or implied authorization to be able to dial 911 or to access emergency service personnel, and any misrouting of 911 calls, including but not limited to your failure to follow correct activation procedures for 911 calling or your provision to us of incorrect or inaccurate or not current information in connection with the 911 Service.
Notwithstanding the Limitations that are discussed above, and having fully read and understood those Limitations as well as the limits of Foneco’s liability, you hereby fully acknowledge and accept, without limitation, the Voice Service, its Nomadic VoIP Service characteristics, and the 911 Service as currently offered.
9- Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software
The Service and all Service information, documents, software, Device, firmware, and materials on Foneco’s web site(s), as well as all of the following (whether registered or unregistered): names, logos, trademarks, trade names, service works, copyrights, patents and other intellectual property (the “Foneco Property”) are the exclusive property of Foneco or its licensors and are protected by intellectual property laws and international treaty provisions. You acknowledge that: (a) you will not contest the ownership of the Foneco Property; (b) you are not given any license to use the firmware or software used to provide the Service or provided to the Customer in conjunction with providing the Service, or embedded in the Device, other than a non-transferable, non-assignable, automatically revocable license to use the Foneco Property (without making any modification thereto) provided to the Customer or otherwise made accessible to the Customer strictly in accordance with the terms and conditions of this Agreement. If you decide to use the Service through an interface device not provided by Foneco, which Foneco reserves the right to prohibit in particular cases or generally at any time, you warrant and represent that you possess all required rights, including software and/or firmware licenses, to use that interface device with the Service and you will indemnify and hold harmless Foneco, the employees, officers, directors, shareholders, affiliates and third party service providers against any and all liability arising out of your use of such interface device with the Service. You furthermore agree that your use of an interface device may, in Foneco’s sole discretion, disqualify you from the benefits of Foneco’s offer of a Money-Back Guarantee and any other indemnification permitted to you under law or this Agreement.
10- Charges / Payments / Default / Taxes
10.1 Billing and Payment: Foneco will bill all charges monthly to your credit card. Monthly fees for Service, according to the plan for which you registered, Device rental charges, and feature charges where applicable, will be charged to your credit card monthly in advance. All charges for long distance, local minutes, fax pages, directory assistance (411), etc. that are not included in, or exceed, the features of the selected package will be charged to your credit card monthly in arrears. However Foneco reserves the right to bill at more frequent intervals if the amount due at any time exceeds $250 for toll free or long distance. Where applicable, charges for activation fees, deactivation fees or plan change fees, Device purchases, and shipping and handling charges will be charged to your credit card at the time of your order.
You must give us a valid credit card number when the Service is purchased. If the credit card expires, you close your account or your billing address changes, or the credit card is cancelled and replaced owing to loss or theft, or cancelled for any other reason, you must advise Foneco.
When subscribing to the Service via the Foneco website or by other means you must acknowledge having read and accepted this Agreement by clicking “I Accept”. Your acceptance of this Agreement authorizes Foneco to charge the credit card on file with Foneco, including any modified information given to Foneco if the credit card expires or is replaced, for all charges as described herein. This authorization will remain valid until 30 days after Foneco receives your written notice terminating Foneco’s authority to charge your credit card or until all accrued charges to your accounts are paid whichever is later.
10.2 Toll Charges: Long Distance Charges for calls through the Service will be billed to you at rates established by Foneco and posted on the Foneco web site (www.foneco.co). These rates may be changed from time to time at Foneco’s sole discretion and will be posted on the Foneco web site. Currently there are no charges between Foneco users; however charges can be levied at the sole discretion of Foneco and will be posted on the Foneco web site. Call times for each call are rounded up and billed in six (6) second increments. All calls for which we receive answer supervision and last for at least six (6) seconds, as explained below, shall incur a minimum thirty (30) second charge. Foneco relies on answer supervision to determine whether and when a call has been answered. Answer supervision is a signal sent by the carrier connecting the call to indicate the start of call. Answer supervision is generally received when a call is answered; however, answer supervision may also be generated by voicemail systems, private branch exchanges, and inter-exchange switching equipment. Where no answer supervision is received, we will commence billing forty (40) seconds following dial time unless the caller has terminated the call.
10.3 Taxes: The Customer is responsible for, and shall pay applicable federal (GST), Harmonized Sales Tax (HST) and provincial taxes (PST) or any additional telecommunication or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of Customer’s subscription or use or payment for the Service or purchase or rental of a Device. Such amounts are in addition to payment for the Service and will be billed to your account.
10.4 Billing Disputes: You must notify Foneco in writing within seven (7) days after your monthly statement is posted in your account section on the Foneco Web site or is sent to your email address if you dispute any Foneco charges on that statement or you agree that such dispute will be deemed waived. Billing disputes must be sent by mail or email to the following address:
Customer Care Billing Department, Foneco, 33 Prince, Montreal (Quebec) H3C 2M7
11- Device Returns and Replacements
11.1 Returns: If returning a Device purchased or rented from Foneco the Device must be in original condition and packed in the original packaging with the UPC or bar code intact. All components, manuals and registration card(s) must be included. Customer is responsible for the cost and risk of return shipping of all Devices.
11.2 Replacements: If the Device is deemed defective by Foneco and new equipment is shipped to Customer, the Customer is responsible for the cost and risk of return shipping of the defective Device to Foneco. Device must be in good physical condition and packed in the original packaging with the UPC or bar code intact and with note indicating a Return Authorization number obtained from Foneco. All components, manuals and registration card(s) must be included. If the packaging containing any Device, we ship to you, is visibly damaged upon receipt, please note the damage on the carrier’s freight bill or receipt and keep a copy. Keep the original packaging, all packing materials and parts intact and contact Foneco’s customer care department immediately. Warranty coverage varies depending on the type of Device that you choose and Foneco’s determination of the reasons for damage. Please refer to the appropriate Foneco device warranty on the Foneco web site (www.foneco.co). If Foneco’s Customer Care service department determines, in Foneco’s sole discretion, that the aforementioned damage was caused by you or a third party, then you agree that Foneco shall not be liable for such damages. You acknowledge and agree that Foneco’s decision in this regard shall be final and binding.
11.3 Return authorization: Devices must be returned with a valid return authorization number obtained from Foneco Customer Care. To obtain a return authorization number, User must contact email@example.com THE MONEY BACK GUARANTEE WILL NOT BE HONORED IF USER FAILS TO MEET ALL SUCH REQUIREMENTS.
12- Termination/Discontinuance of Service
12.1 Termination By Customer: Cancellation of Service by Customer: You may cancel the Service by requesting a cancellation of Service form from firstname.lastname@example.org and returning the form once completed at least 10 days prior to the end of your month’s term. Service provision will be cancelled as at the end of the current month. There will be no refund on your current monthly charge and all usage fees will be charged to your credit card account as well as a disconnect fee, if applicable, according to the rate established below.
12.2 Suspension or Termination of Service by Foneco: Foneco may suspend or terminate your Service anytime after sending Customer 30 days’ advance written notice (by email or regular mail) at any time in Foneco’s sole discretion (and you acknowledge and agree that Foneco’s decision in this regard shall be final and binding) if:
- Any charge to your credit card on file with Foneco is declined or reversed or in case of any other non-payment of account charges. You agree that termination of Service for declined card, reversed charges or non-payment leaves you FULLY LIABLE to Foneco for ALL CHARGES ACCRUED BEFORE AND THROUGH THE DATE OF TERMINATION and for charges incurred by Foneco owing to your non-payment, such as (but not limited to) collection costs and attorney’s fees;
- Customer is violating or has violated Foneco’s fair use policy, or Customer is engaging in or has engaged in fraudulent, abusive, injurious, illegal or immoral use or a use which violates this Agreement;
- Upon Customer’s death, if Customer is an individual;
- Upon the insolvency, voluntary or involuntary bankruptcy, of Customer or where Customer enters into voluntary or involuntary receivership, or (if the Customer is not an individual) voluntarily or involuntarily surrenders its charter or articles of organization or undergoes a merger, or any other like circumstance; or
- For any reason whatsoever.
12.3 Termination By Foneco: If Foneco terminates your Service at its discretion without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month’s charges. If your Service is terminated for any stated reason, including without limitation violation of this Agreement or the law, or because of any improper use of the Service or Device (such as, but not limited to, your attempts to transfer, hack, crack, disrupt, or misuse the Service), you will be responsible for the full month’s charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, if applicable, and as stipulated below, all of which immediately become due and payable. The remedies available to Foneco as stated herein do not exclude Foneco’s other rights, recourses and remedies against you.
12.4 Disconnect Fee: If you have rented a Device from Foneco, you will be charged a disconnect fee of $70.00 per Device upon termination of Service for any reason. The disconnect fee becomes due and payable immediately upon termination and will be billed directly to your credit card.
The disconnect fee will be fully reimbursed upon return of the rented Device(s) if returned within fourteen (14) days of termination under the following conditions: a) The Device must be undamaged and in original condition, b) All documentation and packaging materials are returned, c) A valid Return Authorization (RA) number must be indicated on the package and shipping document. The RA will be sent to you by email by Foneco upon receipt of your cancellation form.
12.5 No Liability: You acknowledge and agree that Foneco shall not be liable whatsoever for any decision Foneco makes concerning the suspension, modification, termination or cancellation of your Service. In the event that Foneco determines to terminate or cancel your Service, then all amounts owing to Foneco, whether current, arrears or accrued, shall become immediately due and payable to Foneco and the Customer’s liability for all such amounts shall survive the termination of this Agreement and the Service until paid in full.
Furthermore, the license Foneco has granted you in connection with the Service and the Foneco Property shall at the same time be automatically revoked and this Agreement automatically terminated (subject to the provisions of this Agreement which are deemed to survive such termination). The Customer will be required, at the Customer’s expense, to return to Foneco all of Foneco Property in the Customer’s possession or under the Customer’s control. All of the Foneco Property shall be returned in its original condition.
13- Warranty, Limitations of Liability And Indemnification
13.1 Warranties: Foneco and its affiliates, directors, employees and agents provide the Service “AS IS” and make no warranties of any kind, express or implied, including but not limited to, (i) any implied warranties of merchantability or fitness for a particular purpose of the Service or the Device, (ii) warrant that the Service will operate error-free or without failure, delay, interruption, degradation of voice quality or loss of content, data or information. Neither Foneco nor its officers, employees, directors, shareholders, affiliates, licensors, agents, partners, suppliers, content provider, suppliers, or any other service provider or vendor who furnishes services or products to the Customer in connection with this Agreement or the Service will be liable for unauthorized access to Foneco’s or the Customer’s transmission facilities or premises equipment or for unauthorized access to, or alteration, theft or destruction of, the Customer’s data files, programs, procedures or information through accident, fraudulent means or devices or any other method, regardless of whether such damage occurs as a result of Foneco’s or its service provider’s or vendors’ negligence. Statements and descriptions concerning the Service or Device, if any, by Foneco or Foneco’s agents or installers are informational and are not given as a warranty or representation of any kind.
13.2 Limitation of Liability: The parties agree that under no circumstances shall Foneco, its officers, employees, directors, shareholders, affiliates, licensors, agents, partners, content provider, suppliers or any other service provider who furnishes services or products to the Customer in connection with this Agreement or the Service be liable to you or any other person, for any actual direct, indirect, consequential, special, incidental, punitive or exemplary damages or for any other damages whatsoever, including but not limited to loss of data, loss of revenue or profits of any kind or nature, regardless of the foreseeability thereof arising out of the provision of the Service or in any way arising out of this Agreement whether resulting from (i) the Customer’s use of Service (ii) mistakes, omissions, interruptions, loss, theft or deletions of files, errors, defects, delays in operation or transmission, or (iii) any failure of performance or otherwise in connection with the Service or this Agreement or arising out of or in connection with the use or inability to use the Service, including inability to dial 911 or to access emergency service personnel through the Service; degradation of quality of Service, failure of Device, mistakes, omissions, interruptions, or defects in equipment, force majeure events such as (but not limited to) acts of god, strikes; fire, war, riot, government actions, that is caused by any reason. The limitations set forth herein apply to claims founded in breach of contract, breach of warranty, products liability, extra-contractual liability and any and all other theories of liability and apply whether or not Foneco was informed of the likelihood of any particular type of damages.
13.3 Indemnification: The Customer agrees to defend, indemnify, and hold harmless Foneco, its officers, employees, directors, shareholders, affiliates, licensors, content providers, suppliers, partners and agents and any other service provider who furnishes services or products to the Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, the Customer or any third party or user of Customer’s Service (whether or not such use of the Service was expressly or impliedly permitted by the Customer), relating to this Agreement or by violation of this Agreement, the Services including but not limited to 911 dialing or the Device. This paragraph shall survive termination of this Agreement and of the Service.
13.4 No Third Party Beneficiaries: No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
13.5 Content: You are liable for any and all content transmitted by or to you or users of the Services. You shall assure that your or user’s use of the Services and content will at all times comply with all applicable laws, regulations and written and electronic instructions for use.
13.6 Maximum Liability: Notwithstanding anything to the contrary in this Agreement, Foneco’s maximum and sole liability for damages to you for any cause whatsoever regardless of form of action, including negligence, shall not exceed an amount equal to the Service charges paid by you for the Service during the one (1) month period preceding the event which caused the damages or injury.
14- Governing Law / Resolution Of Disputes
14.1 Governing Law: This agreement and performance hereunder shall be governed by and construed solely in accordance with the laws in force in the province of Quebec, Canada, and only the courts therein shall be competent to hear any dispute.
If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement alleged by the Customer must be filed by the Customer (or the Customer’s attorneys) within one (1) year after such claim or cause of action arose or the Customer shall be forever barred with respect to such claim or cause of action.
14.2 Non-Transferable: This Agreement is not transferable in any way and may not be assigned to any third party. This includes, without limitation, that neither you nor any other person may: (a) resell, rent, lease, timeshare, sublicense, or otherwise transfer all or any portion of the Services to any other party; nor (b) make commercial use of the Services except as expressly permitted by Foneco.
14.3 No Waiver: The delay, waiver or failure of Foneco to exercise or enforce, in any respect, any right provided for herein shall not be deemed a delay, waiver or failure by Foneco with respect to any additional, prior or subsequent right or remedy under this Agreement or the law.
14.4 Severability: If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
14.5 Authorized Representative: The person or party who authorizes the subscription to the Service or use of the Device or the Service or use of the Foneco web site or has clicked “I Accept” with regards to this Agreement shall be deemed to be a lawful representative of the Customer with requisite authority sufficient to bind the Customer.