Think Access Terms of Use

TERMS AND CONDITIONS

Terms & Conditions effective January 1, 2022

These Terms and Conditions, and the service schedule(s) and other documents that are referenced in them, constitute the agreement (“Agreement”) between Distributel Communications Limited, through its business services division ThinkTel (referred to as “ThinkTel”), and you, the customer (referred to as “You” or the “Customer”).

This Agreement governs the provision of and use of specific Services provided by ThinkTel to You, as well as any hardware, equipment or devices provided by ThinkTel in connection with the Service (“Hardware”).

  1. THE SERVICE

    1. Providing Service. ThinkTel will provide the Services on the terms and conditions and Rates set out in the Service Schedule(s). In exchange for the provision of the Services, you agree to pay the relevant Rates and fulfil your other obligations in this Agreement.

      In addition to its other obligations under this Agreement, ThinkTel will:

      1. provide the Services (i) in a professional and competent manner through Personnel qualified and skilled in their occupations, and (ii) in accordance with the provisions of this Agreement, generally accepted industry practices, and Laws;

      2. use commercially reasonable efforts to minimize disruptions and to provide the Services in accordance with any agreed Service Levels;

      3. adhere to commonly accepted norms of ethical business practices.

    2. Prohibited Activities. In addition to your other obligations under this Agreement, you will refrain from using or allowing the Services to be used, and take reasonable steps to prevent the Services from being used:

      1. in any manner that (i) violates any acceptable use policies or Laws, including any regulations, decisions, or orders governing the use of the Service issued or adopted by the CRTC or any applicable governing body, or (ii) is contrary to the purposes for which the Services are provided;

      2. for auto-dialing, continuous or extensive call forwarding, telemarketing, sending bulk messages, or fax or voicemail broadcasting without our prior written consent;

      3. for criminal or fraudulent activities or activities that would constitute a public nuisance or infringe on the rights of any other party;

      4. with telephone numbers or business names, trademarks or business identifiers which you do not own, or have express permission to use;

      5. in any manner that interferes with the integrity of the Services or our ability to provide services to you, other customers, or other parties, for any purpose for which the Services were not intended, or in contravention of any fair use or other policies established by ThinkTel; and

      6. by unauthorized parties, including for the purposes of reselling the Service, without the prior written permission of ThinkTel (collectively, the “Prohibited Activities”).

    3. Regulatory Obligation. Each of us is responsible for complying with all applicable CRTC and other regulatory determinations applicable to a Service, and for obtaining and keeping current any licences or other authorizations required to provide or use the Services, including the requirement to register with the CRTC, and as a condition of offering and providing telecommunications services to Persons that are not Canadian carriers, to include in our arrangements with these non-carriers, the requirement that the latter, and any or all of their wholesale customers and subordinate wholesale customers, abide by the obligations set out in Appendix 1 to Telecom Regulatory Policy 2017-11. Either party may terminate the provision of a Service if the other party does not have all required authorizations, or has not satisfied or breaches any regulatory obligation associated with the provision or use of that Service.

      1. The Customer does not have any ownership or other property right in any telephone number or other identifier provided by ThinkTel in respect of a Service. In certain limited circumstances it may become necessary to change these identifiers, and you agree that ThinkTel is entitled to change your telephone number where such a change is required. Reasons for a change include where necessary to comply with the North American Numbering Plan, to correct number assigning errors, or to address disputes between customers and another party. If a change becomes necessary, we will give you reasonable advance notice of the change, but will not be liable for any costs, damages or other amounts resulting from the change.

      2. If we are providing you with voice services, the CRTC requires us to inform you, and obtain your acknowledgement of, the limitations of 911 emergency services provided over VoIP services. You acknowledge and consent to the conditions and limitations of ThinkTel’s 911 service set in our standard 911 Appendix to your voice service.

      3. We reserve the right to amend this Agreement from time to time in order to ensure compliance with our regulatory obligations. We will advise you in advance of any such amendments and provide you with an opportunity to comment, and you agree that any modifications or amendments made for regulatory compliance purposes will be legally binding upon the parties.

    4. Hardware. As part of your Service, you may purchase or lease Hardware from ThinkTel. In these cases, you assume the risk of loss or damage to the Hardware once it has been shipped to you, and we are only responsible for loss or damage to any Hardware where that loss or damage is caused through our fault or negligence. Unless the parties agree otherwise, title to Hardware which you purchase (including on a rent-to-own basis) will only pass to you when the Hardware has been paid for in full. Hardware leased to you remains our property and, subject to any other written arrangement between us, must be returned to ThinkTel on termination or expiry of the Service for which it was provided.

    5. Liability for Unauthorized Use. The Customer is responsible to safeguard the Service and Hardware against unauthorized use and Prohibited Activities. The Customer shall immediately notify ThinkTel if they suspect or become aware that the Hardware has been lost, stolen or subjected to tampering or the Service has been used or will be used for Prohibited Activities. The Customer assumes liability for all charges incurred as a result of tampering or Prohibited Activities prior to notification whether or not authorized by or caused by the Customer. You acknowledge that you have read and understand the toll fraud prevention guidelines available at: www.thinktel.ca/fraud-prevention

    6. Network Coverage Area. ThinkTel provides and supports the Service only in Canada, which is the ThinkTel network coverage area. The ThinkTel current Direct Inbound Dialing (“DID”) and Local Number Portability (“LNP”) footprint is listed at: www.thinktel.ca/our-network. Certain Services are designed to work with unencumbered, high-speed Internet connections. However, if the high-speed Internet connection you are using is not within the ThinkTel network coverage area, and/or your Internet service provider (“ISP”) places restrictions on the usage of voice over Internet protocol (“VoIP”) services, ThinkTel does not represent or warrant that use of the Service by the Customer is permitted by such jurisdictions or by such ISP. The Customer will be solely responsible for any violations of laws and regulations resulting from such use. ThinkTel reserves the right to disconnect the Service immediately if ThinkTel determines, acting reasonably, that the Customer has used the Service or the Hardware in violation of the laws of jurisdictions outside of the ThinkTel network coverage area.

    7. Intellectual Property. Each party’s Intellectual Property Rights remain its exclusive property, and except as otherwise stated in this Agreement, this Agreement does not grant the other party any right or license to use those Intellectual Property Rights.

      1. Neither party will, without the prior written consent of the other, use any Intellectual Property in advertising, publicity or otherwise, or remove any copyright or other proprietary marks on any documents, materials or equipment provided. You agree not to copy, modify, reverse compile, disassemble, reverse engineer or otherwise attempt to derive the source code of any firmware or software provided as part of the Services.

      2. We represent and warrant that, to the best of our knowledge, the provision of the Services will not infringe or induce the infringement of any Third-Party Intellectual Property Rights. If either of the parties becomes aware of any assertion that provision of a Service infringes, or will infringe, the Intellectual Property rights of any other Person, that party will immediately notify the other.

      3. We agree to indemnify you against all losses, liabilities, costs and expenses arising from or incurred by reason of any infringement of any Third-Party Intellectual Property Rights by your use of the Services, except where that infringement is as a result of:

        1. any breach by you of any term or obligation under this Agreement;

        2. the combination, connection, operation or use of the Services with any other hardware, equipment or software not supplied by or approved by us;

        3. the modification or use of the Services in a manner not approved by us; or

        4. a modification to the Service made by us at your request or based on advice or information provided by you.

      4. If your use of a Service is held to constitute an infringement of any Third-Party Intellectual Property Rights, and is enjoined or held improper by way of declaration, ThinkTel will use reasonable efforts to either:

        1. obtain the rights necessary so that the use of Service becomes non-infringing; or

        2. replace or modify the Service so that it no longer infringes the Third-Party Intellectual Property Rights.

        If, as reasonable determined by ThinkTel, neither of the alternatives in paragraphs 1.7.4.1 and 1.7.4.2 of this Section is reasonably available, you may terminate all or any part of this Agreement without further obligation or liability to ThinkTel.

    8. Cancelling or transferring away Telephone Numbers. The Customer agrees that transferring or porting telephone numbers to another service provider does not result in an automatic termination of underlying or associated Services supplied by ThinkTel. In the absence of termination orders from the Customer, ThinkTel will select the most appropriate billing plan for any remaining Services and the Customer will continue to be responsible for all the charges and fees associated with the remaining Services. The Customer shall remain responsible for all charges and fees for cancelled or transferred telephone numbers through to the end of the current billing cycle; early termination provisions of this Agreement apply to telephone numbers and Services as applicable.

    9. Telephone Numbers. The telephone numbers that ThinkTel provides in conjunction with Service to the Customer may be listed in telephone directories, however, in certain cases the Customer may need to specifically request listings when ordering or porting numbers, or after installation, as a change order to the Service.

    10. Compatibility – Security Systems and Broadband Services. ThinkTel does not warrant that all broadband services will be compatible with the Service and expressly disclaims any express or implied warranties or conditions regarding the compatibility of any broadband service with ThinkTel Service. The Service may not support operator assisted calling (including, without limitation, collect calls, third party billing calls, 900 or calling card calls). The Service may not support all N11 services in one or more service areas. Service delivery is subject to availability of suitable facilities necessary to provide the Service.

  2. BILLING; TERMINATION

    1. Charges, Taxes and Late Payment. The Customer shall pay all undisputed recurring and non-recurring charges, usage charges, fees and taxes in respect of the Service without set-off or deduction. Invoices for recurring Services will be rendered monthly or at a frequency consistent with the Service Schedule and usage related charges will be included in an invoice rendered in the month following the usage or at a time as soon as reasonably able to do so. The Customer shall make payments against invoices in full within thirty (30) days of the date of the invoice. If the Customer disputes any charges, fees or taxes reported within an invoice, it shall notify ThinkTel in writing within thirty (30) days of receiving that invoice or it shall be deemed that the Customer has waived any right to contest such charges. Accounts past due will be subject to a two percent (2%) per month late payment charge (or 26.8% per annum on a compounded basis) which shall be due and payable upon receipt of such late payment charges included on a subsequent invoice. ThinkTel reserves the right to correct any errors in billing for a period of up to six (6) months and apply the appropriate charges retroactively.

      1. You agree to ThinkTel’s credit approval procedures and policies as reasonably determined by us from time to time. Where we determine that your financial circumstances or credit history warrant it, we reserve the right to request or revise payment terms including, but not limited to security in the form of a deposit or a credit limit.

    2. Service Suspension and Termination. Termination. In addition to any other right to terminate or suspend in this Agreement, either party may terminate this Agreement or any Service:

      1. in the event of a breach by the other party of a material term or obligation of this Agreement which is not cured within thirty (30) calendar days after the receipt of notice of the breach by the non-breaching party;

      2. if any governmental body takes administrative or judicial action, which either party believes in good faith prevents that party from engaging in any activity required under this Agreement, provided the terminating or suspending party provides reasonable written notice of the termination or suspension to the other party;

      3. the other party is determined to be bankrupt, makes a general assignment for the benefit of its creditors, has a receiver appointed on account of its insolvency, or is subject to any other similar action in insolvency; and

    3. Suspension. In addition to the above, we reserve the right to suspend or restrict any or all of the Services at any time in our sole and absolute discretion if: (a) you fail to make any payments when due; (b) we determine that you have become an unacceptable credit risk or you do not comply with any deposit or payment terms; (c) any of the events in Section 2.2 occur; or (d) the Services have been used or it reasonably appears they will be used for any Prohibited Activities. If we suspend or restrict any Service as a result of your breach of this Agreement, you will be responsible for all charges through to the end of the current Service Term, including unbilled charges, collection costs and legal fees and expenses plus any disconnection fee, if applicable, all of which will immediately be due and payable.

    4. If you terminate this Agreement for a breach by ThinkTel, we will, in addition to any other obligations we have under this Agreement:

      1. provide you with any completed or partially completed deliverables;

      2. provide you with a report detailing: (i) the current state of the provision of deliverables by ThinkTel at the date of termination; and (ii) any other information reasonably requested by you pertaining to the provision of the deliverables and performance of the Agreement; and

      3. execute documentation as may be reasonably required by you to give effect to the termination of the Agreement.

    5. If you are purchasing a Service for a defined term of twelve (12) months or longer (a “Fixed Term”), and (i) we terminate the Service pursuant to Sections 2.2.1 or 2.2.3, or (ii) you terminate the Service other than pursuant to Sections 2.2.1or 2.2.3, prior to the end of the Fixed Term, unless specified otherwise on the applicable Service Schedule, you are responsible, as liquidated damages and not as a penalty, for an amount equal to the Rates for the Service for the remainder of the Fixed Term, and that amount becomes immediately due and payable. In the case of (ii) above, we reserve the right to charge you for any amounts owing by ThinkTel to third parties for such things as local loops required to provide the Service being terminated for so long as ThinkTel is obligated to pay such third party charges.

    6. Termination, suspension or expiration of this Agreement does not affect the rights or obligations of either party with respect to any then-existing defaults or the obligation to make any payment that accrued prior to the date of termination, suspension or expiration, or any right or obligation that expressly survives the termination or expiration of this Agreement. When this Agreement or a Service is terminated or suspended, your right to use all or any of the Services, as the case may be, ceases. Each party’s rights to terminate or suspend are in addition to, and in no way limit any other rights or remedies they have under this Agreement, at law or in equity.

  3. 911 SERVICE

    1. Express Consent Required. 911 emergency service over a VoIP telephone (Broadband Internet) has certain limitations compared to Enhanced 911 services available on most traditional telephones. Where you subscribe to voice services, you must provide express agreement and consent to the conditions and limitations of ThinkTel 911 service outlined in Appendix 1 – VoIP 911 Service Agreement as a condition of receiving the service.

  4. LIABILITY

    1. Limitation of Liability and Indemnities. Neither party shall be liable to the other for any indirect, consequential, exemplary, special, incidental or punitive damages, including without limitation, loss of use, data, business, revenue, profits, or goodwill, or damages arising out of or in connection with the use or inability to use the Services provided pursuant to this Agreement, under any theory of tort, contract, warranty, strict liability, negligence or otherwise, even if the party has been advised, knew or should have known of the possibility of such damages.

    2. Subject always to any contractual obligations to make payment, each party’s maximum liability arising out of or in connection with this Agreement is limited in all cases to the lesser of (i) the actual direct damages suffered by the party, and (ii) the charges paid or payable by the Customer in the previous calendar month. This limitation applies to all causes of action and claims, including, without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentation and other torts. We are not liable for, and you waive any right to claim for, any loss arising out of or in connection with the use or inability to use a Service, including inability to access emergency service personnel through 911 service or to obtain emergency help, unless it is caused by our gross negligence or willful misconduct.

    3. Subject to Section 4.2, each party (the “Indemnifying Party”) shall defend with counsel reasonably acceptable to the other party, hold harmless and indemnify the other party and its employees, officers, directors, agents, shareholders and Affiliates (the "Indemnified Party") from and against, and assumes liability for, all direct damages, claims, costs and expenses, (including reasonable attorneys’ fees and costs) suffered or incurred by the Indemnified Party resulting from the following:

      1. any injury, loss or damage to any Person, tangible property or facilities of any third Person or entity arising under this Agreement due to the gross negligence or willful misconduct of the Indemnifying Party, its employees, agents or contractors; and

      2. any claims arising out of any violation by the Indemnifying Party of any regulation, rule, statute or court order of any local, provincial, or federal governmental agency, court or body in connection with this Agreement.

    4. The obligation to indemnify the other party is conditional on the party seeking indemnity under this Section (i) providing the other party with notice of any claim for which indemnity will be sought within a reasonable amount of time after becoming aware of the claim; (ii) cooperating in a reasonable manner in the investigation of the claim and providing all relevant details, information and documentation concerning the claim; and (iii) acting reasonably so as to mitigate any losses, damage, expense or cost arising out of the claim.

    5. Liability for Content. We do not control the content transmitted over the Services. As such, you are responsible for any liability that arises from the content transmitted by or to you or to and from any Person using the Services or Hardware (your "Users"). You are responsible for ensuring that your use of the Services and content, and that of your Users, complies at all times with all applicable Laws and this Agreement, and except where caused by our gross negligence, you are responsible for any fraudulent use of the Services, including by your Users. We reserve the right to disconnect or suspend the Service, if we determine that your use or content does not comply with the requirements in this Agreement or interferes with our ability to provide Services to you or others.

    6. Privacy of Content. From time to time the Services may utilize the public Internet or third party networks outside of our control to transmit voice and other communications. We assume no liability for the privacy of that content or any personal information transmitted using the Services. You are responsible for the usage and security of your network.

    7. Confidentiality. The Receiving Party agrees that it will:

      1. use Confidential Information only for the purpose of this Agreement;

      2. not disclose Confidential Information in whole or in part to any Person except as required to carry out this Agreement or where disclosure is made with the other party’s prior written consent or pursuant to a legal requirement;

      3. take all reasonable precautions to ensure that all Confidential Information is properly secured and maintained in confidence and is not disclosed or used other than for the purposes of this Agreement;

      4. not disclose the Confidential Information to the Receiving Party’s Personnel, third party consultants or vendors unless those Persons have a need to know the Confidential Information for the purpose of providing the Services and are bound by the terms of a non-disclosure agreement with restrictions on the use and disclosure of the Confidential Information at least as extensive and protective as those set out in this Agreement; and

      5. immediately notify the Disclosing Party in the event of any breach or potential breach of the provisions of this Section.

      6. A party disclosing Confidential Information to any other Person in accordance with this Section, is liable for any breach of this section by that Person as if it was the Person disclosing the Confidential Information.

    8. Hardware – Third Party Warranty Only. If the Hardware that has been sold or leased to the Customer by ThinkTel for use in connection with the Service included a limited warranty at the time of receipt, the Customer must refer to the separate limited warranty document provided with the Hardware for information on the limitation and disclaimer of certain warranties and conditions. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation. IF A LIMITED WARRANTY DID NOT COME WITH THE CUSTOMER’S HARDWARE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE CUSTOMER IS ACCEPTING THE HARDWARE “AS IS”. To the extent permitted by applicable law, OTHER THAN WARRANTIES FOR THE HARDWARE EXPRESSLY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE HARDWARE, THE CUSTOMER’S HARDWARE IS NOT ELIGIBLE FOR REPLACEMENT, REPAIR OR REFUND, AND THINKTEL MAKES NO WARRANTIES OR PROMISES OF ANY KIND, EXPRESS OR IMPLIED AND SPECIFICALLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABLE QUALITY, FITNESS OF THE HARDWARE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY OR CONDITION ARISING BY USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY OR CONDITION THAT THE HARDWARE OR ANY FIRMWARE OR SOFTWARE IS “ERROR FREE” OR WILL MEET THE CUSTOMER’S REQUIREMENTS. FOR CERTAINTY, THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY OR CONDITION SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE HARDWARE.

    9. Warranties. Each party represents and warrants to the other that: (i) it is a company, duly incorporated and validly existing under the laws of its place of incorporation, (ii) it has the necessary capacity and authority to enter into this Agreement and the signing of this Agreement has been authorized by any necessary corporate actions on its part, and (iii) it has all necessary authorizations, licenses or other authorities required to provide, or receive and use, the Services.

      1. We will provide the Services using reasonable care and skill. To the extent permitted by applicable law, and except as expressly stated in this Agreement, we do not guarantee error-free or uninterrupted operation of the Services, and are not liable for any failure, breakdown, interruption or degradation in a Service or any network or connection involved in the provision or use of Services unless caused by our gross negligence, regardless of how long it lasts. Other than those warranties, representations, conditions or guarantees set out expressly in this Agreement, neither ThinkTel nor its affiliates, officers, directors, employees, agents or representatives (its “Representatives”) makes any warranties, representations, conditions or guarantees of any nature whatsoever regarding any service, product or facilities provided by us to You, either express or implied, including, without limitation, those relating to availability, reliability, fitness for a particular purpose or merchantability with respect to the Services. Neither ThinkTel nor its Representatives will be liable for unauthorized access by a third party to ThinkTel’s or your transmission facilities or premises or for unauthorized access to, or alteration, theft or destruction of, your data files, programs, procedures or information through accident, fraudulent means or any other method.

    10. Additional terms and conditions related to INTERNET SERVICES

      (a) Internet traffic management policies (ITMP)

      Most of the network facilities that make up the Internet are shared by many users at the same time. This is also true for the network facilities used by ThinkTel High Speed Internet Services. While ThinkTel is constantly investing in its network in order to ensure a high quality Internet service, significant increases in traffic demand may occasionally result in congestion on such shared networks.

      ThinkTel designed its Internet Quality Management system to minimize the impact for most users during congestion periods. The Internet Quality Management system works by identifying types of Internet traffic that are more sensitive to congestion and delays and prioritizing such traffic when necessary. The system identifies traffic types at all times in order to react immediately in case of network congestion. Normally no prioritization of traffic occurs as the network capacity is more than sufficient to handle the traffic volume. However during congestion periods, delivery of the more time-sensitive traffic will be prioritized to ensure an overall high quality internet experience for the most users possible.

      Internet traffic is identified and, if necessary, prioritized based on four groups. The highest priority is given to applications that are very time-sensitive, such as VoIP. The second and third priority groups consists of traffic that is also sensitive to congestion, such as web browsing, social networking and video streaming. The fourth group includes applications that are traditionally less popular with our customer base as a whole.

      Normally all Internet traffic will be delivered at full speed. During congestion periods, Customers should see no change in the quality of their Internet experience when using time-sensitive Internet applications. Customers using less time-sensitive applications may notice a decrease in their download/upload speeds until the temporary network congestion has passed.

      (b) Monitoring of activity

      ThinkTel reserves the right but is under no obligation to monitor service activity for the purposes of network improvement, integrity, security or for the purposes of monitoring compliance with these Terms and Conditions

      ThinkTel may at any time be legally required to monitor, record, preserve evidence of the activity of identified Customers or may be required to remove content in whole or in part as a result of court orders and/or warrants or statute, without prior or subsequent notice provided to the Customer.

      THINKTEL MAY MODIFY OR CHANGE SUCH IDENTIFIERS AT ANY POINT IN TIME AND SHALL IN NO WAY BE REQUIRED TO COMPENSATE THE CUSTOMER FOR SUCH CHANGES.

  5. GENERAL PROVISIONS

    1. Regulatory compliance. ThinkTel reserves the right to update these Terms and Conditions and the attached Appendices from time to time in order to ensure regulatory compliance. The Customer agrees that any such modifications or amendments made for regulatory compliance purposes will be legally binding upon the parties and immediately form part of the Agreement when ThinkTel provides the customer with written notice (via letter or bill insert).

    2. Amendments. Except as otherwise specified, this Agreement may be amended only in writing signed by both parties.

    3. Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.

    4. Survival. In addition to any provisions specifically stated as surviving termination, the provisions of this Agreement that by their nature are intended to survive the termination or expiration of this Agreement shall survive.

    5. Assignment. This Agreement and the rights and obligations hereunder may not be assigned in whole or in part by the Customer without the prior written consent of ThinkTel, such consent not to be unreasonably withheld or delayed. This Agreement shall enure to and be binding upon the parties and their respective successors.

    6. No Waiver. Either party’s failure to exercise or enforce any right or provision of this Agreement does not constitute a waiver of that right or provision. Any waiver of any provision or right under this Agreement must be in writing signed by the party entitled to the benefit of that provision or right, and is effective only to the extent set out in the written waiver.

    7. Third Party Beneficiary. No provision of this Agreement provides any Person or entity not a party to this Agreement with any third party beneficiary rights.

    8. Governing Law. This Agreement is governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in Ontario. The parties attorn to the jurisdiction of the courts of the Province of Ontario and all courts competent to hear appeals from them. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

    9. Privacy. To the extent that you provide us with personal information in connection with this Agreement, you confirm that you consent, and that all necessary consents have been obtained, to the collection, use and disclosure of that personal information where required: (i) to provide the Services, (ii) for the administration of this Agreement, (iii) for collecting unpaid debts; and (iv) as otherwise required or permitted by law or this Agreement. For the purposes of this section, "personal information" does not include personal information that is publicly available. ThinkTel only collects, uses and discloses the personal information of its customers in accordance with its privacy policy at the time of collection, which can be found on our website.

    10. Force Majeure. Neither party shall be liable for damages caused by delay or failure to perform its obligations under the Agreement where that delay or failure is caused by an event beyond its reasonable control. The parties agree that force majeure events shall include, but not be limited to, natural disasters and acts of war, insurrection and terrorism, governmental or judicial actions or orders, and interruptions in the Customer’s access to the Internet not due to ThinkTel’s gross negligence. If either of the parties seeks to excuse itself from performance of its obligations under this Agreement due to a force majeure event, it must immediately notify the other party of the delay or non-performance, the reason for the delay or non-performance and the anticipated period of delay or non-performance.

    11. Authority. Each party represents and warrants that it has the full right and power to enter into this Agreement, the Persons signing the Agreement have the legal authority to bind their respective parties, and that there is no agreement with any other Person which would in any way interfere with the rights of the other party under this Agreement.

    12. You agree to receive commercial electronic messages from ThinkTel and, where appropriate, our related companies and marketing partners. Where a Service requires the download of software, you agree to receive software downloads from ThinkTel, including to your end user devices, to the extent that such downloads are reasonably necessary for the continued efficient provision and operation of the Service

    13. Language. Il est convenu par le présent acte que les parties demandent que ce contrat et tout avis, consentement, autorisation, communication et approbation soient rédigés en langue anglaise. The parties agree that they have specifically required that this Agreement and any notices, consents, authorizations, communications and approvals be drawn up in the English language.

    14. Definitions. In addition to terms defined in the body of this Agreement, the following terms have the following meanings in these Terms and Conditions:

      Confidential Information” means any information of the Disclosing Party and any communications between the parties, in whatever form whether written, oral, electronic or otherwise, related to this Agreement, the Services or the business and affairs of a party, including any materials prepared from or incorporating that information or communications. Without limiting the foregoing, Confidential Information will include the design, installation, delivery or implementation of the Services, including pricing information, service levels and network design specifications. Confidential Information does not include name, address and listed telephone number and any information (i) which is lawfully in the public domain at the time it is used or disclosed, (ii) has been independently developed by a party without any use or reliance on Confidential Information, (iii) was already known to the party prior to disclosure or becomes known to it without any breach of this Agreement, and (iv) is required to be disclosed by law or a court of competent jurisdiction;

      CRTC” means the Canadian Radio-television and Telecommunications Commission;

      Disclosing Party” means a party which discloses Confidential Information to the Receiving Party;

      Intellectual Property Rights” mean all intellectual property and design rights, including in software, inventions, patents, copyrights, design rights, database rights, trade-marks and trade names, domain names, websites, logos, service marks, trade secrets, and know-how (whether registered or unregistered) and all applications and registrations for and extensions and renewals of such rights or any of them, anywhere in the world; and “Intellectual Property” shall have a corresponding meaning;

      Laws” means all applicable laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, and regulations that at any time may be applicable to either the Agreement or the Services or any part of them;

      Person” includes an individual, company, corporation, partnership, unincorporated association, government or government agency, authority or entity however designated or constituted and successor organizations or any combination of these Persons;

      Rates” means any rates, charges, fees or other amounts payable in respect of a Service as set out in a Service Schedule or other Schedule to this Agreement, and as amended from time to time;

      Receiving Party” means a party which receives Confidential Information from the Disclosing Party;

      Schedule” means any Service Schedule, statement of work, annex, appendix or other attachment thereto, all of which form a part of this Agreement;

      Service” means a service provided by ThinkTel to the Customer pursuant to this Agreement, as described in the applicable Service Schedule, statement of work and/or other Schedules;

      Service Schedule” means a Schedule to this Agreement setting out details of a Service or Services ordered by the Customer, and includes any attachments to it;

      Service Levels” means any service levels for a particular Service as set out in a Schedule;

      Third-Party Intellectual Property” means any Intellectual Property owned by a Person other than ThinkTel or the Customer.

APPENDIX 1 – VOIP 911 SERVICE AGREEMENT

In order for ThinkTel to provide you with VoIP service, you must provide express agreement and consent to the conditions and limitations contained in this document by returning a signed copy of this agreement by email, fax or mail to ThinkTel. This Appendix forms part of the Master Services Agreement between you and ThinkTel.

  1. Limitations of VoIP 911 Service. The Voice over Internet Protocol (“VoIP”) 911 service provided by ThinkTel differs in a number of important ways from Enhanced 911 (E911) dialing available with most traditional telephone services – and has specific limitations relative to E911. When placing a call to emergency services with E911, the user’s telephone number and location are automatically transmitted to the operator during the call. With VoIP 911, the user’s telephone number and location are not automatically transmitted to the operator, and the operator may not know the physical location of the caller because the service can be used anywhere an Internet connection is available.

    When a ThinkTel VoIP 911 user dials 911, the user’s call is routed to ThinkTel’s emergency services operator. The operator will confirm whether the user is still located at the address the Customer has registered with ThinkTel, and if not, will ask for the caller’s physical location. The operator will also ask for information about the user’s emergency, determine the appropriate agency to respond, and then transfer the caller. There may be an additional delay to transfer the user’s emergency service call to areas not served by traditional 911. When the user dials 911, they are not to hang up unless told to do so by the operator or the emergency service attendant. If the call is disconnected prematurely the user will need to call back to re-establish a connection with the emergency services.

    You are responsible for providing ThinkTel with the service address for each activated and/or ported DID and/or charge number as applicable and ensuring that this location information is kept current at all times. Only DIDs and/or charge numbers that are provisioned with ThinkTel and have applicable fees paid may be used as the Calling Party ID for 911 calls. The use of any other DID or charge number constitutes a violation of this Agreement and a public safety hazard. In the event the user is unable to speak during a 911 call, the operator will automatically dispatch emergency services to the address registered on file. If the user uses his or her VoIP service to dial 911 when they are outside of Canada or the United States, the emergency services operator will advise them to hang up and find a local telephone line and dial the appropriate emergency services (which may not be 911).

  2. Informing others of 911 Service Limitations. You are also responsible for informing others who may use your Services of the limitations of ThinkTel’s 911 service as compared with traditional 911 service, as set out above. If a user is not comfortable with the limitations of ThinkTel’s 911 service, you should arrange an alternate means of accessing traditional 911 services.

  3. Power or Broadband Outage. Power disruptions, outages on your ISP’s (Internet Service provider’s network), and service suspensions or disconnections, are likely to prevent dialing to emergency service numbers including 911. A power failure or disruption may require the Customer to reset or reconfigure equipment prior to using the 911 service. In these cases, the user may need to use a traditional telephone or cellular telephone to make an emergency call. You acknowledge that in the event of an outage, malfunction or any other unavailability of your Internet connection or related equipment, including without limitation, improper modification or any tampering with your computer or related software or hardware, the service may not function.

  4. Activation and Nature of 911 Service. ThinkTel’s 911 service is available upon Service activation. Applicable 911 fees are charged as of the service activation date; the Customer will continue to be billed for the service until the Customer or ThinkTel terminate the service in accordance with this Agreement.

  5. Limitation of Liability and Indemnification Pertaining to 911 Service. You agree not to hold ThinkTel, its affiliates or any of their respective officers, directors, employees, or agents liable for (i) any claim, damage, or loss (including but not limited to loss of profit or other indirect losses), or (ii) any damage as a result of service outage, including data loss, arising out of the limitations of ThinkTel’s VoIP 911 service. You waive any and all such claims or causes of action, arising from or relating to any service outage and/or inability to dial 911 from your telephone line or to access emergency service personnel unless it is proven that the act or omission directly causing the claim, damage, or loss constitutes gross negligence, recklessness, or intentional misconduct on the part of ThinkTel. Subject to the provisions of this agreement, ThinkTel does not provide any other warranties of any kind either express or implied, including without limitation the warranties of merchantability and fitness for a particular purpose. The Customer agrees to defend, indemnify, and hold harmless ThinkTel, its affiliates, and their respective officers, directors, employees, agents, and legal representatives, from any and all claims, losses, damages, fines, penalties, costs, expenses, legal fees, etc., incurred by, or on behalf of, the Customer, or any third party or user of the Customers’ service relating to the absence, failure or outage of the service, including 911 dialing and/or inability of the Customer or any third party or user of their service to be able to dial 911 or to have access to emergency service personnel, as well as any misroutes of 911 calls.

    911 VoIP Service – User Tips

    • In an emergency, dial 911 to reach the emergency services operator.

    • Be prepared to provide your physical location, call-back number, and nature of the emergency.

    • Do not hang up unless instructed by the call centre operator.

    • If you get disconnected, please redial 911. The operator, if they have your number, will also attempt to call you back.

    • Ensure that your VoIP service and Internet service is configured and initialized correctly and that the address associated with your VoIP service is always up-to-date since the operator may assume that you are at the last registered address if you are not able to speak during a 911 call.

    • Inform all other users and potential users of the limitations of VoIP 911 service and about these user tips.

    • Display the VoIP 911 warning sticker on the telephone set or in a location that is clearly visible to all users and potential users.

    Updates to 911 Service terms. The information contained in this VoIP Service 911 Service Agreement may be updated and revised from time to time. Updates and revisions are available on our website at: http://www.thinktel.ca/en/911.

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