Terms of Service
ITELYA COMMUNICATIONS TERMS OF SERVICE
1.0 Parties
The current Terms of Service constitute part of an agreement (‘the Agreement’) made between the Customer (‘the Customer’) and Itelya Communications Ltd (‘Itelya’).
NOTICE!
THIS IS A LEGALLY BINDING DOCUMENT WHICH CONTAINS IMPORTANT TERMS AND CONDITIONS REGARDING THE PROVISION OF HIGH-SPEED ACCESS AND RELATED EQUIPMENT AND SERVICES FROM THE CUSTOMER AND ITELYA.
THE CUSTOMER ACKNOWLEDGES UNDERSTANDING OF THE TERMS AND ACCEPTS THE TERMS IN THEIR ENTIRETY BY AGREEING TO THE AGREEMENT.
THE CUSTOMER PROMISES TO NOT ENTER THE AGREEMENT IN THE EVENT THE CUSTOMER DOES NOT AGREE WITH THE TERMS IN FULL.
THIS AGREEMENT CONTAINS LIMITATIONS REGARDING THE USE OF 9-1-1 CALLS.
IN THE EVENT, THE CUSTOMER WISHES TO NOT BE BOUND BY THE CURRENT AGREEMENT, THE CUSTOMER MUST NOT ACTIVATE OR USE SERVICE OR EQUIPMENT AND SHOULD IMMEDIATELY CONTACT ITELYA USING THE CONTACT DETAILS PROVIDED IN SECTION 3 TO TERMINATE THE ACCOUNT OF THE CUSTOMER, SHOULD ONE ALREADY EXIST.
SPECIAL NOTICE! RIGHT TO AMEND
ITELYA RESERVES THE RIGHT TO AMEND THE AGREEMENT AT ANYTIME UPON PROVIDING NOTICE TO THE CUSTOMER AS PER SECTION 7.
Contents
SPECIAL NOTICE! RIGHT TO AMEND.. 1
3.0 Operator contact details and notice. 7
4.4 IP and e-mail addresses; telephone numbers, etc. 8
4.7 Compliance measures and complaints inter alia. 9
5.0 Right to access/contract. 10
5.1 Customer representation of full legal capacity. 10
5.2 Minors – prohibited to contract. 10
6.2 Descriptions of Services. 10
9.0 Customer responsibility and understanding for Content. 11
9.1 Acknowledgement of offensive Content, etc. 12
9.2 Customer understanding of Itelya disclaimer. 12
9.3 Customer responsibility of minors. 12
9.3.1 Guardian/parental responsibility of supervision of minors. 12
9.4 Customer responsibility for actual users. 12
10.0 Personal information policy. 13
10.3 Purposes for collecting personal information. 13
10.4 Recipients of personal information. 13
10.4.1 Debt collectors as potential recipients. 14
10.5 Duration of personal information storage. 14
10.6 Personal information concerning credit cards. 14
10.7 Access to personal data. 14
11.0 Billing and Payment Policy. 15
11.1 Customer obligation to understand. 15
11.7.3 Banking institution. 17
11.9.1 Late Fee for cheque payments. 17
11.9.2 Late Fee for pre-authorized payment. 18
11.9.3 Interest payable of outstanding balance after 30 days. 18
11.9.4 Suspension of unpaid Accounts. 18
11.9.5 Reactivation of suspended Account. 18
11.9.6 Additional Collection Fees payable after 90 days. 18
11.10 Payment plan changes. 19
11.13 Customer responsible for all usage. 19
11.14 Billing disputes limitation period. 20
11.15 Third party regulations. 20
12.0 Limitations of Service. 20
12.3 Spam, spyware and virus protection. 21
12.4 Customer acknowledgement on inherent limitations of Internet-based Services. 21
12.5 Interoperability with equipment and/or software. 22
12.6 Itelya specified minimum requirements. 22
12.7 Interruption to other devices. 23
13.0 Provisions specific to Dial-Up Services. 23
14.0 Provisions specific to High Speed Services. 24
15.0 Provisions specific to VoIP Services. 24
15.1 Voice over Internet Protocol Services. 24
15.3 How Customer information is provided. 25
15.4 Customer’s responsibilities. 25
15.4.1 Information accuracy. 25
15.5 Failing functionality of 9-1-1 Call 26
15.5.1 Failure of Service or Service Access Device. 26
15.5.2 Changing Location of Service Access Device. 26
15.5.3 Use outside of Canada or the United States. 27
15.6 Customer responsibility to seek Alternate Services. 27
15.7 Customer responsibility to inform other users. 27
15.8 No Liability and Indemnity. 27
15.10 Availability of 411 Service. 27
15.11 Availability of 900 and 976 Numbers. 28
15.12 Telephone Number Portability. 28
15.14 Limit on Usage Patterns. 28
16.0 Residential Phone Service. 29
17.0 Business Phone Service. 29
18.0 Disclaimer uninterrupted service is not warranted by Itelya. 31
19.0 Specific provisions for Long-Distance Call Services. 31
19.2 Unlimited Long-Distance Plan Limitations and Prohibitions. 32
20.0 Customer support/product support. 32
21.0 Installations, maintenance, inspections, repairs or removals of Service or Equipment. 32
21.1 Installation Services. 33
21.2 Hardware/Software requirements. 33
21.8 Preventing unanticipated loss of data. 34
22.0 Customers may also purchase equipment from Itelya. 35
23.0 Customers may also bring their own equipment. 35
24.0 Software supplied by Itelya. 35
25.0 Acceptable use and prohibitions. 36
25.0 Disclaimers and Limits of Liability. 38
25.1 Acknowledgement of Risk. 38
25.2 Limitation of Liability. 39
25.4 Effect of Force Majeure. 40
26.3 Effect of Termination. 43
27.1 Parole Evidence Rule - Entire Agreement. 43
27.4 Relationship between Parties. 44
27.8 Exclusion jurisdiction. 45
27.9 Activation, acceptance of terms, etc. 45
2.0 Definitions
Agreement refers to current Terms of Service, the Customer’s Scope of Services Schedule (‘the Schedule’), any additional service level agreement (‘SLA’) of the Customer, and information updated on the Itelya’s Website from time to time.
Itelya refers to Itelya Communications. Contact details are provided following in section 3.0
Content refers to text and images that the Customer may create, encounter and/or publishes using the Services in any way
Customer refers to the person seeking to receive internet services, tv services or phone services
Parties refers to Itelya Communications and the Customer
Services refers to the Services referred to in the Schedule, the current Terms, and SLA of the Customer, and those contained in information updated on the Itelya’s Website from time to time.
Website refers to www.itelya.ca
The use of the singular also refers to the plural
3.0 Operator contact details and notice
3.1 Contact details
Itelya is a registered corporation in British Columbia, Canada. The contact details of the Itelya are;
- toll free 1-844-448-3592,
- welcome@itelya.ca
- live chat through website or Facebook messenger
Itelya Communication’s online client area – under construction it will be available for operation shortly
Mailing address:
ITELYA COMMUNICATIONS
PO Box 1711,
Aldergrove, B.C. V4W 2V1
3.2 Notice, meaning of
‘Notice’ contemplated by the current Agreement will be delivered in writing to the other Party, which delivery will utilize some form of confirmed-delivery service, be it facsimile, electronic mail, courier, or registered post. All Notices will be sent to the respective business addresses, facsimile numbers, or e-mail addresses of the individual Parties or their authorized representatives, as may be indicated in the respective Schedule, SLA, or other document incorporated into the current Agreement by reference, or, at such other address or fax number as may be subsequently made known to one Party by the other. Receipt of the aforementioned Notice will be deemed to have occurred as at the date and time indicated on the confirmation.
4.0 Intellectual property
4.1 Itelya Content
Trademarks and creative works on the Website are the property of Itelya. The structures, infrastructure, systems, software, databases and other Content of any kind remain the intellectual property of the Itelya. Persons may not record, copy, or re-use, or perform a related task, in relation to intellectual property. Unauthorised use of intellectual property may result in litigation.
4.2 Third-Party Content
Content, including but not limited to text, software, music, sound, photographs, video, graphics or other material accessed or available through the Services or the Internet may be owned by parties other than the Customer (including but not limited to Itelya and third parties) and may be protected by applicable copyrights, trade-marks, patents, trade secrets or other proprietary rights and laws.
4.3 The Customer’s Content
Itelya does not claim ownership of information, materials, software or other Content (collectively, the ‘Customer Content’) that the Customer posts, uploads, inputs, provides, submits or otherwise transmits to Itelya, or third party using the Services.
4.4 IP and e-mail addresses; telephone numbers, etc.
Itelya warrants except where otherwise specified by Itelya, telephone numbers for VoIP Services and numbers and addresses for other Services (such as both static and dynamic IP addresses and e-mail addresses) assigned to the Customer by Itelya during the term of the current Agreement remain the property of Itelya at all times and Itelya reserves the right to change such telephone numbers, numbers and addresses assigned to the Customer at time with prior written consent of the customer and provided that Itelya notifies the Customer prior to such changes.
4.5 Public transmission
Itelya warrants the technical processing and transmission of the Services, including but not limited to the Customer Content and other Content, materials or other information, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices.
4.6 Caching
The Customer acknowledges that Customer Content, materials or information that the Customer may access through the Services may be subject to ‘caching’ or other policies and procedures at intermediate locations on the Internet.
4.7 Compliance measures and complaints inter alia
The Customer acknowledges that Itelya has no obligation to censor or monitor use of the Services by the Customer, authorized user of the Customer or third party (including but not limited to obligation to censor or monitor Customer Content, material or other information sent, received or accessible by the Customer through the Services or the Internet).
The Customer acknowledges that Itelya has the right to monitor use of the Services and monitor, review and retain such Customer Content, material or information, in the event Itelya reasonably believes that such activity is reasonably necessary to provide the Services to the Customer, to ensure adherence to or enforce the terms of the current Agreement, to comply with laws or regulations, to respond to allegation of illegal conduct or claimed violation of third party rights, or, to protect the Customer, itself, or others.
In the event, Itelya receives a complaint relating to use of the Services by the Customer or through the Account of the Customer, the Customer acknowledges that Itelya may investigate the complaint, restrict, suspend or terminate Accounts or Services involved, or, remove Customer Content, information or materials from its servers, provided always that requirement for Notice is duly complied with.
5.0 Right to access/contract
5.1 Customer representation of full legal capacity
The Customer represents that he or she is a natural person with legal capacity to use the Services in a manner that is consistent with the terms provided in the current Agreement.
5.2 Minors – prohibited to contract
The Customer represents that he or she has reached the age of majority, at least 18 or 19 years of age, in the jurisdiction where he or she uses the Service. Minors, defined as persons aged younger than 18 or 19, are ineligible to contract with the Itelya.
6.0 Services
6.1 Relevant services
Relevant services (‘the Services’) to this Agreement are those expressly referred to in the Scope of Services Schedule (‘the Schedule’), those referred to the Agreement, and any Additional service level agreement (‘SLA’)
6.2 Descriptions of Services
Descriptions of Services provided by Itelya may be described further Itelya’s website (‘the Website’).
6.3 Conflict of Services
In the event, there is a conflict between a description of a Service in the Schedule, the Agreement, the SLA, and/or the Website, the description found in the Schedule and Agreement will govern. Following such will be the description found in the SLA, following such the description found on the Website.
6.4 Service rate
Services referred to the Schedule will be offered to the Customer at the rate negotiated and referred to in the Schedule. The Service will be provided at the minimum standard described in the Schedule for this Agreement’s duration.
7.0 Amendment of Services
Itelya reserves the right to amend the Agreement at time upon providing notice to the Customer.
Amending the Agreement may take the form of adding, amending, creating, changing, modifying, or deleting Service.
Amending the Agreement may take the form of changing pricing for Services.
Itelya’s right to amend Services is a prevailing right unabridged by term in contained a Schedule, the current Agreement, SLA, or the Website.
Itelya will provide the Customer with fourteen (14) days’ notice (’14 Day Notice’) prior to which the amendment to the Agreement will take effect.
Itelya reserves the right to send such notice (a) by electronic mail to the Customer’s email address registered with Itelya, or (b) by a registered post to the Customer’s address registered with Itelya, or (c) by Courier to the Customer’s address registered with Itelya, or (d) by phone to the Customer’s phone number registered with Itelya.
The Customer acknowledges that it is his or her responsibility to review 14 Day Notices from Itelya.
In the event, the Customer finds the amendment proposed by Itelya as unacceptable, the Customer has the right to terminate the Agreement provided the Customer elects to exercise the option to terminate within 28 days.
Failure to elect to terminate Agreement before 28 days will be understood as a constructive acceptance of the proposed amendment.
8.0 Duration of Agreement
The Duration of the Agreement (‘the Duration’) is provided in the Schedule. The first period (‘the Initial Period’) commences on the date that Itelya activates the Account of the Customer and ends on the Billing Date.
Itelya offers the Services and the Customer pays for the Services on a rolling contract basis (‘Roll-over Period’). The Agreement is recurring until terminated by either party. The Initial Period ends on the Billing Date and a Roll-over Period commences on the Billing Date.
Itelya may offer a promotion to the Customer once the Initial Period is complete.
9.0 Customer responsibility and understanding for Content
9.1 Acknowledgement of offensive Content, etc.
The Customer acknowledges that the Services provided may provide access to online Content, information and materials which are offensive and otherwise inappropriate.
The Customer acknowledges that the Services provided may provide access to online Content that is illegal.
9.2 Customer understanding of Itelya disclaimer
The Customer acknowledges that the nature of the Content accessed through the Services is outside of Itelya’s practical control, and warranties to not hold Itelya responsible for warranties, statements, representation and/or loss concerning online Content.
9.3 Customer responsibility of minors
9.3.1 Guardian/parental responsibility of supervision of minors
Guardians and Parents are entirely responsible for the supervision of the use of Services by minors.
As part of such, Minors should not be permitted to use the Services without supervision.
At the very least Minors should be informed to refrain from providing personal information online.
9.4 Customer responsibility for actual users
The Customer is entirely responsible for the use of the Services by actual users.
The Customer is entirely responsible for the use of the Services even when the actual user has gained access to the Services without the Customer’s permission, unless the Customer has taken all reasonable steps to prevent the suspected unauthorized use, and notifies Itelya in writing, to Itelya’s contact details as provided in section 3, of the suspected unauthorized use.
10.0 Personal information policy
Section 10 from sub-sections 10.1 to 10.9 inclusive is Itelya’s ‘Personal information policy’. It is part of the Agreement.
10.1 Personal information
Customers who wish to use the Services will be asked to provide personal information.
"Personal information" refers data that identifies a person including but not limited to a person’s full name, nickname, image, address including but not limited to e-mail, phone numbers, date of birth, occupation, marital status, data related to transactions with Itelya, details of purchases, credit card numbers, and all other forms of information a person chooses to provide to Itelya Platform.
The Customer will provide accurate, true and current information as required by Itelya, or Itelya’s agents, for the purposes of enabling the Customer to use of the Services.
The Customer will notify Itelya promptly in writing if/when the Customer’s contact details or personal information relevant to the Services changes.
10.2 Itelya as custodian
Itelya is the person legally responsible for the collection of a user’s personal data
10.3 Purposes for collecting personal information
Itelya will collect personal data for one or more of the following purposes.
- Coordinate the Customer’s access to the Services
- Carry out customer management operations concerning contracts
- Send promotional communications including but not limited to newsletters where users have opted for such
- Develop business analysis such as the preparation of business statistics
- Manage management opinions of people on products and/or Content
- Manage potential and outstanding litigation
- Satisfy legal obligations.
- representation made by Itelya regarding access performance, speeds, reliability, availability, use or consistency of the Services are on a ‘commercial best efforts’ basis;
- Itelya cannot guarantee minimum level regarding such performance, speed, reliability, availability, use or consistency, but will undertake at all times to provide ‘commercially best efforts’ to ensure the minimum standards outlined in the Schedule and applicable Agreement are maintained; and
- data, messages, information or materials sent over the Internet (such as calls made using VoIP Services, or e-mail messages sent or received) may not be completely private, and the Customer’s anonymity is not guaranteed.
- he or she has an obligation to ensure that his or her activity on the Service does not inappropriately limit the use of the Service of other Customer
- Itelya has sole discretion in determining whether a Customer’s use of the Services is placing an unusually large burden on the network (use involving but not limited to peer to peer file sharing programs, serving streaming video or audio, mail, http, ftp, irc, dhcp servers, and multi-user interactive forums could constitute an unusually large burden.
- Unlawful, unethical or otherwise inappropriate purposes; or
- Non-residential use. The Service cannot be used to operate a business, including a home based business of any description or
- Internet access, data, fax, a call center, or any related activities; or
- A purpose intended primarily to cause interference with Itelya’s network operations or the Services, including but not limited to the fair and proportionate use of the Services by others, as determined by Itelya.
- Excessive use of the Service in a manner which is materially inconsistent with average residential usage patterns to make unlimited long distance calls directed to or within certain high cost of service areas, as determined as such by Itelya.
- Long-distance calls, chat lines, or any other, multi-party and/or pay-per-call services which impose unusually high costs on Itelya.
10.4 Recipients of personal information
Only employees of Itelya have access to personal data. Sub-contractors may have limited access. Auditors may have limited access. Court officers and debt collection agencies can have access to personal information only where Itelya is required to provide such by court order or equivalent.
10.4.1 Debt collectors as potential recipients
The Customer acknowledges that Itelya may provide the Customer’s personal information to a collection agency for the purposes of debt collection only.
10.5 Duration of personal information storage
Personal information will be stored for three years or as long as necessary to satisfy legal obligations.
10.6 Personal information concerning credit cards
Itelya only stores personal information concerning credit cards necessary for the completion of the transaction.
10.7 Access to personal data
The Customer’s personal information and additional details about the Account of the Customer and the Services will available online at Itelya Communication’s online client area client.
10.8 Cookies
Cookies are text files, typically encrypted, and stored in a user’s browser. Cookies are created when the browser of a user loads a website: the website then sends information to the browser, which creates a text file. Each time the user returns to the same site, the browser then retrieves the file and sends that file to the server of the website.
Technical cookies and advertising cookies are the two types of cookies.
Technical cookies are used to facilitate particular functions such as knowing which language a user uses.
Advertising cookies can be created by outside websites. The cookies can be used to perform particular targeted advertising, that is to say, advertising determined based on the user navigation.
The Services may use technical cookies. The technical cookies are stored in each user’s browser for 6 (six) months. The user can opt out of technical cookies but it will probably affect the operation of the Services.
Itelya refrains from using advertising cookies.
Itelya reserves the right to use a Facebook pixel.
10.9 Consent
A Customer who promises to the Agreement of use of the Services, gives his or her consent to his or her personal information being used as mentioned in this section.
11.0 Billing and Payment Policy
This section from sub-sections 11.1 to 11.15 inclusive is Itelya’s ‘Billing and Payment Policy’. It is part of the Agreement.
11.1 Customer obligation to understand
The Customer acknowledges the obligation on him or her to understand ‘Billing and Payment Policy.
11.2 Currency
All prices and payments are in CAD.
11.3 Right to amend
Itelya reserves the right to change the Billing and Payment Policy as per section 7.
11.4 Fees
The Customer, as an Account Holder, will pay all Service fees (‘Fees’) inclusive of relevant taxes, which the Customer incurs through an Agreement with Itelya.
The Customer will pay the Fees at a rate prescribed in the Customer’s Schedule or SLA, or Itelya’s Website.
The Customer acknowledges that an Account will typically feature
- Fees for service, which are recurring based on the Agreement and the Customer’s Schedule or applicable or additional agreement, or Itelya’s Website
- Fees for rental (if applicable)
- Fees for usage, which are based on usage (possibly including but not limited to one or more of the following time duration, amount of data sent or received, destination of data transmitted and received
- Fees for other matters prescribe in the current Agreement, including but not limited to but not limited to late fees, cancellation fees, or suspension fees in the case of a rogue Account.
11.5 Invoicing
Itelya will invoice the Account of the Customer on the Customer’s Billing Date. Invoices will be sent, either by electronic mail to the Customer’s email address registered with Itelya, or by a registered post to the Customer’s address registered with Itelya, depending on the indicated preference of the Customer.
The Customer acknowledges he or she is responsible for checking his or her Invoices online or otherwise.
The Customer acknowledges that recurring charges are invoiced in advance and per-use charges are billed in arrears.
The failure of Itelya to provide a bill or invoice for a given period is irrelevant to the obligation of the Customer to pay for Fees for the period as per the Agreement.
11.6 Payment due
All Fees are due and payable on receipt of a bill or invoice from Itelya. Invoices will be invoiced by Itelya 15 days before the due date for online invoices. The invoice will state the due date.
11.7 Payment methods
11.7.1 Direct debit
The Customer can complete a ‘Direct Debit Authorization’ form available on the ‘My Account’ homepage of the Website to set up automatic direct debit payment. In the event, the Account of the Customer has already been set up with a different prescribed payment method, the Customer must notify Itelya in writing. Direct Debit payments will be processed on the Billing Date.
11.7.2 Credit Card
The Customer can set up automatic monthly payments with Visa or Mastercard. In the event, the Account of the Customer has already been set up with a different prescribed payment method, the Customer notify Itelya.
11.7.3 Banking institution
The Customer may make online payments through an approved banking institution to the payee Itelya Communications with their Customer ID as their reference number.
11.7.4 Cheques
The Customer may mail a cheque made payable to: ‘ITELYA COMMUNICATIONS’ along with the Customer’s invoice stub, or reference to invoice number or Customer ID, to:
ITELYA COMMUNICATIONS
PO Box 1711,
Aldergrove, B.C. V4W 2V1
The Customer may, at time, contact Itelya for more information or to sign up for or withdraw from particular method of payment.
Itelya reserves the right to limit payment options available to a particular Customer.
Itelya reserves the right to modify the available payment options upon providing a 14 Day Notice to the Customer as stated in section 7.
11.8 Unpaid Amounts
Itelya will notify the Customer in the event a payment of the Customer is declined. Itelya reserves the right to suspend Services provided to the Customer until outstanding Fees are paid.
11.9 Late Fees
NOTICE!
11.9.1 Late Fee for cheque payments
In the event, a Customer who has selected to pay by cheque, fails to pay within two (2) weeks of a notice of Itelya concerned a declined or rejected pay, Itelya will charge a $45.00 late fee.
11.9.2 Late Fee for pre-authorized payment
In the event, a Customer who has selected to pay by pre-authorized payment, fails to pay within two (1) weeks of a notice of Itelya concerned a declined or rejected pay, Itelya will charge a $10 a late fee.
SPECIAL NOTICE!
11.9.3 Interest payable of outstanding balance after 30 days
In the event, the Account of the Customer has an outstanding amount, including but not limited to accumulated late fees, that have remained unpaid for a period of thirty (30) days after the invoice date, such outstanding amounts will accrue late fees, commencing as of the invoice date, at a rate of 2% per month.
11.9.4 Suspension of unpaid Accounts
In the event, an unpaid balance on the Account of the Customer is over twenty-eight (28) days in arrears, Itelya reserves the right to suspend the Account of the Customer, including but not limited to a suspension of the Services provided to the Customer, and/or the Customer’s access to the Account, until the Customer make arrangements, satisfactory to Itelya, to pay the balance owing.
11.9.5 Reactivation of suspended Account
To reactivate a suspended Account, the outstanding balance must be paid. Further, Itelya may require a particular payment method be used for future payments.
NOTICE!
11.9.6 Additional Collection Fees payable after 90 days
Accounts outstanding for more than ninety (90) days may be sent to collection agencies and in the event so will be subject to other collection charges.
The Customer will pay all costs incurred by Itelya in the collection of valid delinquent charges due under the current Agreement or in the enforcement of the current Agreement, subject to applicable laws.
The Customer acknowledges that Itelya may provide the Customer’s personal information to a collection agency for the purposes of debt collection only.
The Customer waives right to hold Itelya liable to misuse of personal information of the Customer by a collection company.
11.10 Payment plan changes
Only the Customer, or an authorized person registered on the Account of the Customer, can request a payment plan change. In the event, the Customer or an authorized person registered on the Account of the Customer signs-up for a different method of payment, the Customer’s Roll-over Period will go into effect as of the next Roll-over Period or Billing Date.
11.11 Username change
Only the Customer, or an authorized person registered on the Account of the Customer, can request a change of the Customer’s username.
The Customer, or an authorized person registered on the Account of the Customer, must provide a password with the new username being activated.
The passwords associated with the Customer’s username may be changed at time free of charge.
The Customer is solely responsible for backing-up data associated with the Account of the Customer, such as web-hosted materials, prior to changing username.
11.12 Cancellations
Only the Customer, or an authorized person registered on the Account of the Customer, can request a cancellation of an Account, username, or e-mail address. The Customer, or authorized person listed on the Account of the Customer, must provide a Notice to as per section 26.
A valid cancellation of an Account will be made effective as at the end of the next Roll-over Period following Itelya’s receipt of a Notice.
11.13 Customer responsible for all usage
The Customer is responsible for all usage and related charges, whether incurred by the Customer or other users, and whether such use was occurred with or without the Customer’s permission or knowledge.
It is the Customer is responsible for tracking the usage of the Account of the Customer.
NOTICE!
11.14 Billing disputes limitation period
The Customer has thirty (30) days after receipt of such invoice to notify Itelya of errors in the invoice.
In the event, the Customer fails to notify Itelya of errors in the invoice, the invoice will be deemed to be correct for all purposes.
The Customer warrants to release Itelya from and all liability and claims of loss resulting from such errors, discrepancies or irregularities.
11.15 Third party regulations
The right of a Customer to use a particular method of payment is subject to limits established by the Customer’s financial institution.
The Customer expressly authorizes Itelya and/or its agents to charge all Fees and charges incurred by the Customer under the current Agreement to such payment method, by using a credit card, pre-authorized payment, bank account withdrawal, Bank Account Debit, or other payment method.
The Customer provides such authorization until such is expressly revoked by the Customer in accordance with section 26.
12.0 Limitations of Service
12.1 General limits
The Customer acknowledges that Itelya may establish general practices and limits concerning the use of the Services as outlined in the Agreement and SLA, including but not limited to: the maximum size of e-mail message or other data that may be sent from or received by an Account; the maximum disk space that will be allotted on Itelya’s servers on the Customer’s behalf; the maximum amount of data, speed of data or type of data that may be sent from or received using the Services or Account; and the maximum number of days that e-mail messages, voice messages or other data will be stored on Itelya’s servers.
The Customer will comply with all such general practices and limits, provided that such limits comply with the negotiated limits outlined in the Schedule and applicable Agreement or SLA; and, changes to these limits also comply with the minimum Notice requirements outlined in section 26.
The Customer acknowledges that exceeding such limits may result in the restriction, suspension, or termination of the Account of the Customer or the exposure to additional charges.
12.2 Availability
Services are not available at all locations.
Services are subject to the availability of suitable equipment, facilities, and infrastructure.
12.3 Spam, spyware and virus protection
The Customer acknowledges that for Services in which virus protection, spam control, or spyware protection are offered, these features are network-level services that attempt to filter such Content before reaching the Customer’s equipment.
The Customer acknowledges that such Services will not protect the Customer’s equipment from malicious, surreptitious or disabling code, virus, Trojan horse, spyware or spam, capable of circumventing such filters.
12.4 Customer acknowledgment on inherent limitations of Internet-based Services
The Customer acknowledges that the Services provided depend on the availability and capacity of the Internet including but not limited to cabling, equipment, facilities and networks, which are outside the control of Itelya; as such;
12.5 Interoperability with equipment and/or software
Itelya refrains from guaranteeing that Service will operate with particular equipment or software, including but not limited to all Internet applications and appliances.
Itelya does not make representation or warranty regarding the interoperability of Services with equipment and/or software.
12.6 Itelya specified minimum requirements
The Customer is responsible for ensuring that his or her equipment and software meet the current minimum requirements specified by Itelya from time to time as being necessary for access to of the contemplated Services.
Notwithstanding the current sub-section, compliance with such minimum requirements does not imply compatibility with the Services.
The equipment or software required to access the Services may change from time to time. The Customer’s equipment or software may cease to be adequate to access the contemplated Services. In such an event, the Customer may choose to upgrade the Customer’s equipment or software, the cost of which will be borne by the Customer; alternatively, the Customer may choose to terminate his or her Account as per section 26.
12.7 Interruption to other devices
The Customer acknowledges the Services or Equipment used to access the Services may interrupt the functioning of some home or business security systems or other devices that use the same phone line, communications hardware or protocols.
The Customer acknowledges that Itelya is not responsible for such problems or interruptions. The Customer is responsible for ensuring that the Customer’s premises are appropriately wired to ensure proper functioning of such security systems or other devices prior to installation of the Services.
Itelya will warn the Customer prior to potential interruptions that may occur to the best of its knowledge and ability at the time.
13.0 Provisions specific to Dial-Up Services
The Customer acknowledges that that the access numbers used by the Customer’s modem to connect to the Dial-Up Services may result in additional or long distance charges being billed to the Customer.
The Customer is solely responsible for determining whether the access numbers the Customer are using are subject to additional or long distance charges and warrants to pay all such charges, including but not limited to those that may be billed to the Customer by a third party.
Itelya will not reimburse the Customer for charges incurred by the Customer as a result of selecting access numbers that are subject to additional or long distance charges.
Itelya may temporarily disconnect the Customer’s access to the Service for ‘inactivity’, ‘inactivity’ defined as logging into the Dial-Up Services for an extended period without network activity.
The right referred to in the current section is unabridged by provision to the contrary in the current Agreement or elsewhere.
The Customer may not use software, such as ‘keep alive’ software, or devices merely for the purpose of simulating network activity to avoid inactivity disconnection.
14.0 Provisions specific to High Speed Services
High Speed Services have transfer rate limits as described in the Schedule and applicable Agreement. In the event, the Customer’s transfer rate exceeds these limits, extra fees may be charged per gigabyte, or Itelya may, elect to terminate or suspend the Customer’s Services or Account in accordance with section 26.
Nothing in this section limits the Customer’s acknowledgement on inherent limitations of Internet-based Services.
15.0 Provisions specific to VoIP Services
NOTICE!
Limitations regarding the use of 9-1-1 are provided here
15.1 Voice over Internet Protocol Services
Voice over Internet Protocol Services (‘VoIP Services’) allows the Customer to make or receive telephone calls over the Internet to or from the public switched telephone network. The nature of VoIP Calls, create unique limitations and circumstances.
The Customer acknowledges that differences exist between traditional telephone service and the VoIP Services, particularly the lack of traditional 9-1-1 services and other privacy issues.
SPECIAL NOTICE!
15.2 Making a 9-1-1 Call
Emergency calls to 9-1-1 through the VoIP Service (a ‘9-1-1 Call’) will be handled differently than traditional phone service due to the unique nature of VoIP Calls.
When an individual makes a 9-1-1 Call, the VoIP Service will attempt to automatically route the Customer’s 9-1-1 Call through a third party service provider to the Public Safety Answering Point (‘PSAP’) corresponding to the address on record with the Account of the Customer.
The 9-1-1 Call of a Customer may be routed to a different location than that which would be used for traditional 9-1-1 dialing due to the limitations of the VoIP System.
The Customer’s call may be forwarded to a third-party, specialized call centre that handles emergency calls. This call centre is different from the PSAP that would answer a traditional 9-1-1 call, and the Customer may be required to provide the Customer’s name, address, and telephone number to the call centre.
15.3 How Customer information is provided
The VoIP Service will attempt to automatically provide the PSAP dispatcher or emergency service operator (a ‘Dispatcher’) with the name, address and telephone number associated with the Account of the Customer.
But, for technical reasons, the Dispatcher may not be able to capture or retain the Customer’s name, phone number or physical location.
When making a 9-1-1 Call, an individual must immediately inform the Dispatcher of their location, or location of the emergency.
In the event, the individual is unable to speak, the Dispatcher may not be able to locate the Customer.
15.4 Customer’s responsibilities
15.4.1 Information accuracy
The Customer is solely responsible for providing and updating correct contact information including but not limited to name, residential address and telephone number associated with the Account of the Customer.
The Customer acknowledges 9-1-1 Calls may be misdirected to an incorrect Dispatcher in the event the Customer does not correctly maintain or update such information.
15.4.2 Disconnections
The caller must refrain from disconnecting a 9-1-1 Call until told to do so by the dispatcher, as the dispatcher may not have the Customer’s number or contact information. The individual must call back immediately in the event the call is inadvertently disconnected.
15.4.3 Connection time
A 9-1-1 Call may produce a busy signal or will take longer to connect when compared with traditional calls due to technical reasons, including but not limited to network congestion.
SPECIAL NOTICE!
15.5 Failing functionality of 9-1-1 Call
The functionality of a 9-1-1 Call may cease or be curtailed in various circumstances for technical reasons, including but not limited to:
15.5.1 Failure of Service or Service Access Device
in the event the Customer’s Service Access Device fails or is not configured correctly or in the event the Customer’s VoIP Service is not functioning for reason, including but not limited to in the event of power outage, VoIP Service outage, suspension or disconnection of the Customer’s Service due to billing issues, network or Internet congestion, or network or Internet outage, in the event of a power, network or Internet outage, the Customer may need to reset or reconfigure the Service Access Device before being able to use the VoIP Service, including but not limited to for a 9-1-1 Call;
15.5.2 Changing Location of Service Access Device
in the event the Customer moves the Customer’s Service Access Device to a location other than that described in the Account of the Customer information or otherwise on record with Itelya; and,
15.5.3 Use outside of Canada or the United States
in the event the Customer moves the Customer’s System Access Device to a location other than one located in the USA or Canada, excluding Alaska, Hawaii, the Northwest Territories, Yukon and Nunavut.
15.6 Customer responsibility to seek Alternate Services
Itelya recommends that the Customer terminate the Services or consider an alternate means for accessing traditional 9-1-1 services in the event the Customer is not comfortable with the limitations of 9-1-1 Calls.
15.7 Customer responsibility to inform other users
The Customer is responsible for notifying, and the Customer promises to notify, user of the Customer’s VoIP Services of the nature and limitations of 9-1-1 Calls on the VoIP Services as described herein.
15.8 No Liability and Indemnity
The Customer acknowledges that Itelya will not be liable for service outage or inability to place 9-1-1 Calls using the Customer’s VoIP Service or to access emergency service personnel due to the limitations of 9-1-1 service described herein.
15.9 Privacy
The Customer acknowledges that VoIP Calls and VoIP Services utilize, in whole or in part, the public Internet and third party networks to transmit voice and other communications, which transmissions may be intercepted by other parties.
15.10 Availability of 411 Service
The 411 information service is available at Itelya’s current rates as set by the Website, changes to the aforementioned rate will be subject to the Notice requirements outlined in section 7.
15.11 Availability of 900 and 976 Numbers
VoIP Calls to certain special service phone numbers, including but not limited to 900- and 976- numbers, may be limited and Itelya reserves the right to limit the Customer’s ability to call such number at its discretion.
15.12 Telephone Number Portability
The Customer may be able to transfer an existing telephone number to the Customer’s VoIP Service or the Customer’s VoIP Service telephone number to another service provider, provided that the Account of the Customer is in good standing.
Itelya will not be responsible for termination fees imposed by other service provider as a result of the Customer transferring or instructing Itelya to transfer the Customer’s existing number to the Services.
Itelya cannot guarantee or warrant the timeliness or date of transfer, nor can it guarantee that the Customer will be able to transfer the aforementioned number.
15.13 Directory Services
Itelya will make the Customer’s name, address and telephone numbers available to publishers of paper and electronic telephone directories and to providers of operator services, in accordance with legal, contractual or regulatory requirements.
15.14 Limit on Usage Patterns
Itelya reserves the right to terminate or suspend the Customer’s VoIP Services in the event the Customer’s calling patterns materially exceed the negotiated limits outlined in the Schedule or applicable SLA, or, in the event the Customer breach part of the current Agreement.
15.15 Bandwidth Usage
VoIP calls require high-speed Internet bandwidth, which may affect throughput over High Speed Services and will count towards the Customer’s bandwidth usage for all High Speed Services.
15.16 Prohibitions
The Customer is prohibited from using VoIP Services for: automatic-dialing announcing devices and unsolicited voice and facsimile calls made for the purpose of solicitation; or, application with continuous or excessive calling patterns for telemarketing, including but not limited to charitable and political solicitation and polling, fax broadcasting or fax blasting.
16.0 Residential Phone Service
The Customer acknowledges the Customer may only use the Service from the Customer phone located at the Customer’s home. The Services are required to be connected to Itelya's Equipment and used only for normal residential calling purposes such as person to person conversations or voice messages.
The Customer will refrain from using the Residential Phone Service for:
The Customer may not use the Residential Phone Service for:
17.0 Business Phone Service
The Customer acknowledges the Customer may only use the Service from the Customer’s phone located either at the Customer’s small office or at the home office. The Services are required to be connected to Itelya's Equipment and used only for normal business calling purposes such as person to person conversations or voice messages.
The Customer may not use the Business Phone Service for:
- Internet access, data, fax, a call center, or any related activities;
- Unlawful, unethical or otherwise inappropriate purposes; or; or
- A purpose intended primarily to cause interference with Itelya’s network operations or the Services, including but not limited to the fair and proportionate use of the Services by others, as determined by Itelya.
- Long-distance calls, chat lines, or any other, multi-party and/or pay-per-call services which impose unusually high costs on Itelya; or
- Excessive use of the Service in a manner which is materially inconsistent with average residential usage patterns to make unlimited long distance calls directed to or within certain high cost of service areas, as determined as such by Itelya.
The Customer may not use the Business Phone Service for:
The Customer is solely responsible for the use of the Residential Phone Services or Business Phone Services by the Customer and all and other users, including but not limited to all calls originating from the Customer’s telephone, as well as for all charged calls accepted at the Customer’s telephone, regardless of who made or accepted them.
The Customer acknowledges unlimited long-distance calling available on the Customer’s Service is only available for calls within Canada and to the U.S., with the exception for calls made in and to NWT area code 867, Hawaii area code 808, and Alaska area code 907, or such other calling areas as identified and designated by Itelya on its website, in its sole discretion, from time to time.
The Customer acknowledges that calls to multi-party conference services, party lines, adult services, or to high cost pay-per-call services may be restricted by Itelya, it its sole discretion, from time to time.
The Customer acknowledges calls terminating outside of the applicable calling area for the Customer’s Service, as identified and designated by Itelya in its sole discretion from time to time, are subject to higher rates.
NOTICE!
The Customer is required to contact Itelya before the Customer uses medical monitoring devices through the service.
The Customer acknowledges other restrictions may apply to the Service and an Itelya representative will advise the Customer of such, in the event any, at the time the Customer subscribes to the Service.
The Customer will take all necessary measures to ensure that Itelya’s Phone Services are used in accordance with the current Agreement; and will be liable for all consequences resulting from breach of the current Agreement.
The Customer’s misuse of part of the Service or breach of term contained in the current Agreement may cause part of the Service to be blocked, suspended, downgraded or terminated by Itelya.
Itelya may also refuse, at time and without liability, to provide of the Services to the Customer where Itelya would have to incur unusual expenses such as, but not limited to, the payment of high costs to other telecommunication carriers.
Itelya may, but will not be obligated to provide such Services if, upon Itelya’s request and agreement, the Customer will pay an amount for these unusual expenses. Agreements on such matters will be in writing and signed by the Customer and Itelya.
18.0 Disclaimer uninterrupted service is not warranted by Itelya
Itelya does not warrant uninterrupted use of the Service.
The Customer understands that it is the Customer’s responsibility to ensure that the telephone the Customer uses with the Service are compatible with the Equipment. Most importantly, some telephone may not operate in the event there is a power failure and in the event the Customer are using a telephone that requires power to operate the Customer would lose the Customer’s ability to use the Service, including but not limited to access to 9-1-1 emergency services until the power is restored.
As per the Terms, disruption in the Service, such as a power failure, may require Itelya to reset or reconfigure the Equipment prior to the Customer utilizing the Service.
19.0 Specific provisions for Long-Distance Call Services
19.1 Fees
The ability for the Customer to place long-distance telephone calls is included in some of the Services. By dialing or placing a long-distance telephone call, the Customer will pay Itelya’s then-current rates and fees for such calls.
Itelya will make its rates and fees for long-distance telephone calls available on its Website at www-kuyef.hosts.cx/phone. Itelya may change such rates and fees upon the provision of at least thirty (30) days prior Notice in accordance with section 7.
19.2 Unlimited Long-Distance Plan Limitations and Prohibitions
Itelya reserves the right to terminate, curtail or suspend the Customer’s long-distance telephone Services in the event the Customer’s calling patterns materially exceed the negotiated limits outlined in the Schedule or applicable Agreement, or, in the event the Customer breach part of the current Agreement.
The Customer is prohibited from using long-distance Services for: automatic- dialing announcing devices and unsolicited voice and facsimile calls made for the purpose of solicitation; or, application with continuous or excessive calling patterns for telemarketing (including but not limited to charitable and political solicitation and polling), fax broadcasting or fax blasting.
20.0 Customer support/product support
Itelya’s Customer Support Team will provide telephone assistance on a reasonable efforts basis, via the telephone number and during the hours specified on the Website.
Assistance is limited to the Customer’s problems use of the contemplated Services or the Account of the Customer and may exclude problems related to certain equipment and software, as specified by Itelya, in its discretion.
Support tickets may be the website and Itelya will make all efforts to respond to Customer requests in a timely manner.
21.0 Installations, maintenance, inspections, repairs or removals of Service or Equipment
The following provisions apply to all installations, maintenance, inspections, repairs or removals of Service or Equipment, whether by the Customer or by or on behalf of Itelya.
21.1 Installation Services
The standard installation configuration for self-installation or Itelya installation only includes the installation of the Service access device, such as a high speed modem for High Speed Services or a combination modem/ATA for VoIP Services (the ‘Service Access Device’), and related components to one stand-alone computer or non-networked server.
In the event, the Customer wishes to connect additional computers to the Internet or to the Customer’s home network, the Customer is responsible for installing and maintaining the necessary systems and their configurations. Where applicable, the Customer is required to show that the Customer’s equipment is functioning properly prior to Itelya’s doing work on the Customer’s equipment.
21.2 Hardware/Software requirements
Services for the most part require the Customer to have suitable hardware (such as a network interface card) or software (such as an operating system) installed in the Customer’s computer before accessing the contemplated Services is possible. Itelya will not install, remove or rearrange such software or hardware unless expressly provided for hereunder.
The Customer acknowledges that Itelya is not responsible for the installation, operation, maintenance or support of equipment or software owned or used by the Customer, including but not limited to equipment or software used in connection with the Services provided.
21.3 Access to site
The Customer authorizes Itelya, its employees, agents, contractors and representatives, to enter the Customer’s premises and access the Customer’s equipment and software for the purpose of installing, maintaining, inspecting, repairing or removing equipment or software as reasonably required for the provision of the Services, for installation services provided by or on behalf of Itelya.
21.4 Time of Access
Itelya will exert commercially reasonable efforts to arrange for access to the Customer’s premises at a time that is mutually convenient for the Parties.
21.5 Availability
The Customer acknowledges that not all installation options or Services are available at all locations. Final confirmation of Service availability cannot occur until the necessary equipment is installed at the Customer’s premises and tested in such environment. Installation options available for certain Services, including but not limited to High Speed Services and VoIP Services will depend upon the Customer’s location.
21.6 Standards
The Customer must provide, at all times: an adequate, standard household power outlet within 1.8 metres of the location that the Service Access Device is to be installed;
and,
a suitable location for the installation of the Service Access Device and associated components within 1.8 metres of the computer to be used for access to the Services and that provides reasonable ventilation and protection from damage to, or theft or loss of, the Service Access Device and associated components.
21.7 Additional Charges
Additional charges will apply when it is necessary for Itelya to install special equipment or software or to incur an unusual expense to establish or install the Services. All site visits for moves, changes, rearrangements or re-installations of a Service will involve a minimum charge, unless otherwise specified by Itelya.
NOTICE!
21.8 Preventing unanticipated loss of data
Itelya recommends that the Customer back-up all existing computer files by copying them to a different storage device prior to the installation or maintenance of Services, software, Service Access Devices or related components.
21.9 Equipment of Itelya
The Customer acknowledges that Equipment provided by Itelya, including but not limited to Service Access Devices or related components, as part of the Services (collectively, ‘Itelya Equipment’), will at all times be owned by Itelya and that nothing in the current Agreement grants the Customer right, title or interest in or to such Itelya Equipment except as expressly set out in the current Agreement.
The Customer will not to sell, transfer, lease, assign interest in, or encumber part of such Itelya Equipment.
The Customer will not modify the device, including but not limited to: changing the electronic serial number or other identification code of such Itelya Equipment, altering the firmware of such Itelya Equipment or performing factory resets.
The Customer acknowledges that all Itelya Equipment is exclusively for use in connection with the Service, and to that end, promises to use all Itelya Equipment in the manner and for the purpose for which it was intended and solely as expressly permitted under the current Agreement.
Itelya Equipment must be returned upon termination, cancellation or deactivation of the Account of the Customer or the contemplated Services for reason.
The Customer promises not to access the contemplated Services with Equipment or device that has been modified, tampered, or altered so as to change the electronic serial number or identification code, or circumvent access controls, limitations or security mechanisms in connection with the Service.
22.0 Customers may also purchase equipment from Itelya
Customers may also purchase equipment from Itelya
23.0 Customers may also bring their own equipment
Customers may also bring their own equipment provided such equipment is approved by Itelya.
24.0 Software supplied by Itelya
The Customer promises all software and documentation that forms part of the Services, or that is otherwise supplied by Itelya, its agents or representatives for use in connection with the Services (the ‘Software’), is protected by applicable intellectual property laws, remains the sole property of Itelya or its suppliers and is supplied subject to the terms of the current Agreement, including but not limited to the Disclaimers and Limitations of Liability herein, and the terms of applicable software license made available to the Customer by Itelya.
Unless otherwise expressly authorized by Itelya or in the applicable Software license, the Customer promises not to:
copy, modify, rent, lease, loan, sell, assign, sublicense, grant a security interest in or otherwise transfer right or interest in the Software;
distribute, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover the source code, of the Software;
remove proprietary notices or labels on or in the Software; or,
allow other person or entity to engage in of the foregoing activities.
25.0 Acceptable use and prohibitions
The Customer promises to fully abide by each of the following terms and conditions regarding.
25.1 Background
Itelya is committed to being the best possible network citizen. To assist us in protecting the usefulness and enjoyment of the Internet and the Services for our members and for other users, we require full compliance with these acceptable use provisions.
25.2 Lawful use
The Services may be used only for lawful purposes.
25.3 Prohibited Conduct
The Customer promises not to:
a. create and post, upload, reproduce, distribute or otherwise transmit unauthorized or unsolicited commercial e-mail, junk or bulk e- mail, chain letters or other ‘spam’ (whether or not using e-mail services, such as Instant Messaging spam) or other duplicative or unsolicited messages, surveys, contests or pyramid schemes, information, material or software that contains a virus, cancelbot, Trojan horse, worm or other harmful, disruptive or surreptitious component, inappropriate, profane, defamatory, information or materials where such activity gives rise to civil liability, or otherwise violates the rights or assists others to violate the rights of Itelya or third party; or information or materials where such activity constitutes a criminal offence, or otherwise engage in or assist others to engage in criminal offence; such offences include communicating hatred, pyramid selling, unauthorized use of a computer, mischief in relation to data, fraud, obscenity and child pornography;
b. harass, engage in threats, intimidation, stalking or abuse or conduct that violates the legal rights of others, including but not limited to the rights of minors and rights relating to privacy and publicity;
c. scan or probe another computer system, obstruct or bypass computer identification procedures or engage in unauthorized computer or network trespass;
d. forge headers or otherwise manipulate protocols or identifiers used in system or protocol in such a manner to disguise the origin of data transmitted using the Services;
e. impersonate or falsely represent the Customer’s association with person, including but not limited to an Itelya representative;
f. export equipment (including but not limited to the Itelya Equipment, Service Access Device and related components), software or data outside of Canada or the United States in contravention of applicable export control legislation;
g. violate established or accepted network etiquette, applicable charters, FAQs, policies, rules or guidelines of Itelya or other parties;
h. disrupt or threaten the integrity, operation or security of Service, computer or Internet system;
i. engage in conduct that elicits or is likely to elicit complaints from other Internet users, restricts or inhibits other person from enjoying the Service or the Internet, or, in the sole judgment of Itelya, is otherwise objectionable;
j. use or register Itelya’s trade-marks, trade names or logos, including but not limited to such trade-marks, logos or service marks displayed on web site operated by Itelya, without Itelya’s express prior written permission;
k. share, resell, reproduce, copy, distribute, redistribute, or exploit for commercial purposes, portion of, use of or access to, Service, except where expressly authorized by Itelya;
l. extract, gather, collect, or store personal information about others without their express consent; or
m. allow other person or entity to engage in of the foregoing activities while using the Account of the Customer.
NOTICE!
In the event, at time the Customer becomes aware of violation, by person or entity, of the acceptable use rules set out above, which involves the Account of the Customer, the Customer promises to immediately notify Itelya and provide Itelya with assistance, as requested, to stop or remedy such violation.
24.4 Itelya’s Remedies
Itelya may suspend, restrict or terminate the Customer’s Services or Account, in the event Itelya determines or believes that the Customer has violated of the acceptable use rules set out above.
25.0 Disclaimers and Limits of Liability
25.1 Acknowledgement of Risk
The Customer acknowledges that all use of the contemplated Services is at the Customer’s own risk, subject only to the express qualification of that risk contained in the current Agreement and the relevant documents incorporated by reference.
The Customer further acknowledges that Itelya web site, which the Customer may visit while using the contemplated Services, may contain links to other web sites, which links are provided solely as a convenience to the Customer. The inclusion of such link does not imply the endorsement of, investigation by, or independent verification (as to the authenticity of the Content contained therein), by Itelya.
Itelya makes no conditions, warranties or representations about the suitability, reliability, usability, security, quality, capacity, performance, availability, timeliness or accuracy of the contemplated Services, the networks of third parties or Content sent or received using or through the aforementioned Services, except as expressly provided for under the current Agreement and the relevant documents incorporated by reference.
25.2 Limitation of Liability
Liability on the part of Itelya for damages or loss (including but not limited to damages for loss of profits, goodwill, opportunity, earnings, use or data, arising directly or indirectly from or related to the current Agreement or the use, non-use, or installation of the contemplated Services or software or service access device or related components), regardless of the cause of action, will be limited to the applicable ‘Deemed Damages’ contemplated in section 26 and, such other liability imposed by a duly authorized Court of Law in accordance with Section .
Notwithstanding other provision of the current Agreement, in no event will Itelya, its parents, subsidiaries, affiliates and their respective officers, directors, agents, employees, suppliers, resellers and distributors (collectively, the ‘Itelya Entities’) be liable for indirect, incidental, or consequential damages.
For greater certainty, this limit to the potential liability of Itelya will be understood to exist notwithstanding the fact that one or more of the Itelya Entities have been advised of the possibility of such damages or loss, and, will continue to exist notwithstanding damages or losses arising from:
a. 9-1-1 service outages, delays, errors or omissions or the Customer’s inability to place 9-1-1 calls using the Customer’s Services, or access emergency service personnel.
b. The sending, receiving, not sending, not receiving, loss, deletion or alteration of transmissions or data, including but not limited to 9-1-1 Call, e-mail messages or telephone or VoIP transmissions, and transactions entered into through or using the Services, including but not limited to domain name registrations, renewals and transfers;
c. suspension, curtailment, restriction, termination or other limitation placed on the Customer’s Services or the Customer’s account;
d. act or omission of the Customer or third party, including but not limited to threatening, defamatory, obscene, offensive or illegal conduct or infringement of another’s rights, including but not limited to intellectual property rights;
e. loss or damage to the Customer’s equipment, software or data arising directly or indirectly out of use or non-use of the Services or service access device or related component;
f. The performance of the internet or the Services;
g. The Content or accuracy of material, information or data (including but not limited to software) related to the current Agreement or viewed, downloaded, accessed or transmitted using, over or through the internet or the Services, including but not limited to material which infringes the rights of others or otherwise violates laws or regulations;
h. The viewing, downloading, transmitting, accessing, purchasing or by other means acquiring information, material, product or service accessible through the internet or the Services;
i. Delays, errors, interruptions, mistakes, omissions, non-delivery, incorrect delivery, viruses, Trojan Horses, spyware, spam or defects in the transmission of information, material or data over or through Itelya’s systems or networks or the systems or networks of third parties; and
j. Installation or maintenance of the Services, whether by the Customer, Itelya or third parties, including but not limited to in the event an installation appointment for the Services is missed, either by Itelya or by third party installer.
25.3 Indemnity
The Parties agree to indemnify and hold-harmless each other from all demands, claims, awards, actions, proceedings, damages, losses, costs, charges and expenses, (including but not limited to legal fees, in the event awarded by a duly authorized Court of Law), incurred by or made against the other, which results from or relates to:
a. failure or outage of the Service, including but not limited to those related to 9-1-1 calls;
b. Access to or use, by the Customer or third-party (with the Customer’s knowledge and consent), of the Services, service access device or related components, or the Customer’s account; or
c. act or omission, including but not limited to breach or non-performance of the current Agreement and violation of third-party rights.
25.4 Effect of Force Majeure
Neither party will be responsible for a failure to fulfil its obligations under the current Agreement or for delay in doing so in the event such failure or delay is due to circumstances beyond its reasonable control, such as acts of God, acts of government, war, riots, strikes and accidents in transportation.
NOTICE!
26.0 Termination
26.1 By the Customer
The Customer may stop using the contemplated Services at time, but Itelya will continue to bill the Customer until the Customer terminates the Account of the Customer or the current Agreement in accordance with this section.
The Customer may cancel Services, the Account of the Customer, or otherwise Terminate the current Agreement at time by forwarding Notice to Itelya at least fourteen (14) days prior to the Customer’s next Billing Date, which Notice will specify: the Customer’s request for Account cancellation, Service cancellation, or Agreement termination; the Customer’s name, authorized representative’s name, and respective contact telephone number; and, the Customer’s Username and password (if applicable).
Itelya will process the Customer’s request effective on the day immediately before the next Billing Date, provided Itelya received the Customer’s request at least fourteen (14) days before that Billing Date.
NOTICE!
Only an authorized representative of the Customer, or Account holder themselves, may cancel Services, cancel their Account, or otherwise Terminate the current Agreement.
SPECIAL NOTICE!
26.1.1 Cancelation Fees
Termination of the current Agreement by the Customer prior to the end of the then current Term, absent Just Cause, will entitle Itelya to ‘Deemed Damages’ in an amount of $15/month remaining on the term.
For the purposes of this Section, ‘Just Cause’ will be understood to include:
a. The material breach of term or condition of the current Agreement by Itelya;
b. The occurrence of any Force Majeure or other act of frustration which would make compliance with the terms and conditions of the current Agreement practically impossible;
c. mutual amendment, modification, abridgement or other cancelation of the current Agreement as consideration for entering into another agreement; or
d. other valid cause at law
26.2 By Itelya
Itelya may suspend the Account of the Customer, restrict available Services, or otherwise terminate the current Agreement, only in accordance with this Section.
Provided that forty-eight (48) hours’ Notice has been provided to the Customer, Itelya may suspend the Account of the Customer, for of the following reasons:
a. the operation or efficiency of the Services or Itelya’s or third party’s equipment or network is impaired by the use of the Services from the Account of the Customer;
b. amount is past due from the Customer to Itelya;
c. Itelya has received a third party complaint, which relates to the use or misuse of the Services from the Account of the Customer;
d. the Customer has or is in breach of term or condition of the current Agreement; or
e. the Account of the Customer contains invalid contact information.
Notwithstanding suspension of the Account of the Customer Itelya will not restrict the availability of Services to the Customer, unless fourteen (14) days have elapsed since the provision of Notice outlined above, and the impugned act or omission outlined in the aforementioned Notice has not been addressed by the Customer.
In the event, the conduct contemplated above does not resolve to the Satisfaction of Itelya within one full Recurring Period of the suspension of Services, such conduct will be deemed to be a material breach of the current Agreement, entitling Itelya to terminate the current Agreement upon Notice to the Customer, such termination to take effect 30 (thirty) days from the provision of the aforementioned Notice.
Termination by Itelya as a result of a material breach of the current Agreement by the Customer, will entitle Itelya to Deemed Damages in an amount equivalent to three (3) Recurring Periods’ worth of Service Fees. 23.12 Notwithstanding anything outlined in this Section, Itelya may otherwise terminate the current Agreement at their discretion upon the provision of 90 (ninety) days’ Notice to the Customer in accordance with Paragraph 24.6 following.
such termination by Itelya, which occurs prior to the expiry of the then-current Term, will entitle the Customer to Deemed Damages in an amount of $15/month left on the term
26.3 Effect of Termination
Termination of the current Agreement, will not relieve the Customer from amounts owing or other liability accruing under the current Agreement prior to the effective date of such termination.
Additionally, upon suspension of the Account of the Customer, restriction of Service, or termination of the current Agreement, Itelya will have no obligation to forward unread or unsent electronic messages to the Customer or third- party, or to maintain messages, information or other Customer Content related to the Account of the Customer.
Moreover, Itelya will have no responsibility to notify third party, including but not limited to third-party service providers, merchants or information processors, of suspension, restriction or termination of the Account of the Customer or of the contemplated Services.
26.4 Return of Equipment
The Customer promises to return and all Itelya Equipment to Itelya within thirty (30) days of termination of the Agreement or cancellation of the Account of the Customer, unless otherwise directed by Itelya.
In the event, the Customer fails to return such Itelya Equipment in accordance with the foregoing, or in the event such Itelya Equipment is otherwise returned damaged or in disrepair, the Customer will be liable for the cost of repairing or replacing the aforementioned Equipment, along with applicable shipping or associated taxes.
27.0 General
27.1 Parole Evidence Rule - Entire Agreement
The current Agreement, as amended from time to time, including but not limited to and all documents, web sites, rules, terms and policies referenced herein, constitutes the entire agreement between Itelya and the Customer with respect to the matters referred to in the current Agreement and as such, the current Agreement supersedes all prior agreements and/or understandings, whether electronic, oral or written, between Itelya and the Customer with respect to such matters.
27.2 Assignability
Either Party may assign their respective rights and obligations under the current Agreement to related third-parties, upon the consent of the other Party, which consent will not be unreasonably withheld.
27.3 Inurement
The current Agreement will inure to the benefit of and bind the Customer and Itelya and their respective successors and permitted assigns.
27.4 Relationship between Parties
The Customer agree that no joint venture, partnership, employment or agency relationship exists between Itelya and the Customer as a result of the current Agreement or use of the Account of the Customer or Services.
27.5 Waiver not construed
The failure of either Party to insist upon or enforce strict performance of provision of the current Agreement will not be construed as a waiver of provision or right. Neither the course of conduct between the Customer and Itelya nor the actions between the Parties will be understood to modify provision of the current Agreement.
27.6 Remedies
The rights, powers and remedies provided for by the current Agreement, will be understood to be cumulative to each other, and in addition to, right, power or remedy that may be available at law or in equity, unless the context contemplates otherwise.
27.7 Severability
In the event, of the provisions of the current Agreement or part thereof will be or held to be invalid or unenforceable, such invalidity or unenforceability will not invalidate or render unenforceable the entire Agreement but rather the extent of such will be restricted to that portion of the Agreement which will be severed from the remainder of the Agreement for those limited purposes, with the remainder to be construed and enforced accordingly, to the fullest extent possible.
27.8 Exclusion jurisdiction
The current Agreement will be governed by and construed in accordance with the laws generally applicable in the Province of British Columbia, Canada. The Customer irrevocably consents to the exclusive jurisdiction of the courts of first instance located in the Province of British Columbia with respect to matter arising under the current Agreement.
27.9 Activation, acceptance of terms, etc.
The Customer promises to be legally bound by and abide by the terms of the current Agreement by activating or using of the contemplated Services, Equipment or user ‘Account’ with Itelya.
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Itelya Communications resides in Beautiful British Columbia in the South Okanagan. We've been in the Telecommunications game since 1992!
