1. PAYMENT OF RATES
1.1. Invoices – FaxSIPit will bill for FaxSIPit Services in accordance with rates identified in the FaxSIPit Contract. Customer agrees to pay each FaxSIPit invoice for FaxSIPit Services in full, without deduction or set of any kind, on or before the due date set forth on each FaxSIPit invoice to Customer (“Due Date”) unless there is a Billing Dispute (see section 2.1 hereafter). All payments due hereunder shall be made in currency. If payment is not received by FaxSIPit on or before the Due Date, interest charges of 1% per month or 12% on an annual basis will be applied to all charges not paid as of the Due Date. The late payment charge rate is subject to change from time to time by FaxSIPit. A service charge of $20.00 will be applied to all insufficient fund payments. FaxSIPit shall have the right, without notice, to draw payment(s) in the amount due from any Customer deposit in the event Customer fails to make payment by the Due Date. Installation charges will be invoiced upon completion of installation. If the Customer has requested more than one installation, FaxSIPit will invoice the Customer as each installation is provided. Monthly base charges will be invoiced in advance and usage fees will be invoiced in arrears. In the case of DID service the customer shall always be and pay one month in advance.
1.2. Rates and Charges FaxSIPit – will measure usage of the FaxSIPit Services in accordance with FaxSIPit’s policies and practices in effect from time to time and may amend policies relating to measuring usage on thirty (30) days’ advance notice to the Customer. FaxSIPit may increase or decrease the Customer charges with respect to services regulated by the CRTC or FCC as required by tariffs. FaxSIPit will endeavor to advise Customer of any fee increase or decrease as a result of CRTC or other regulatory body decision issuing written notification at least thirty (30) days prior to any change taking effect. All rates and charges provided in the Schedules are computed by FaxSIPit, exclusive of any applicable taxes. Customer will pay all sales and value-added taxes, duties or levies imposed by any governmental body in connection with the FaxSIPit Services and the Equipment provided under the FaxSIPit Contract.
1.2a Call Charges: Customer acknowledges and agrees to pay FaxSIPit the rates and charges applicable to the Services being provided hereunder whether fax, voice, or any connect time. FaxSIPit reserves the right to raise or otherwise modify the rates it charges Customer for domestic services upon thirty (30) calendar days’ notice and international service, upon five (5) calendar days’ notice to the Customer. Customer may, within thirty (30) calendar days of its receipt of said notice, terminate the affected service only by providing written notice to FaxSIPit of its intention to terminate the affected service.
1.2b Default Rates: Any traffic to or from NPA/NXX’s, LATA’s or OCN’s that are not specified as part of Customer’s rates will be rated at $0.05 per interstate minute and $0.10 per intrastate minute for all domestic (48 contiguous states) calls. Calls to or from all other NPA/NXX’s, LATA’s, and/or OCN’s that are included in the North American Numbering Plan (NANP) will be rated at $0.30 per minute. All international calls placed to destinations not specified in the customers agreement shall be rated at $5.00 per minute. The Customer agrees all incomplete calls shall incur a surcharge of $0.015 at the sole discretion of FaxSIPit.
1.2c Call Duration: The rates agreed to by FaxSIPit under this Agreement are based upon the condition that Customer will maintain a call duration of greater than 30 seconds in length for at least 80% of Customer’s total domestic calls. If more than 20% of Customer’s traffic is 30 seconds or less in duration, FaxSIPit shall charge an additional one-half cent ($0.005) per call for all calls that are 30 seconds or less above the 20% limit.
1.2d Billing: Unless otherwise stated, all call lengths shall be rounded up to the next tenth of a minute. All domestic calls will be rated in six (6) second increments with a eighteen (18) second per call minimum and rounded to the fourth decimal place amount of a call charge. All international calls will be rated in six (6) second increments with a thirty (30) second per call minimum and rounded to the fourth decimal place amount of a call charge except Mexico, which will be rated in sixty (60) second increments.
1.3. Tax Exemption – Where applicable, Customer will provide FaxSIPit with a valid tax exemption certificate to exempt Customer, under applicable law, from taxes that would otherwise be paid by Customer. FaxSIPit will invoice Customer for taxes that are not covered by any tax exemption certificate led by Customer with FaxSIPit. Should Customer not provide FaxSIPit with the applicable tax exemption certificate, it will be Customer’s responsibility to seek to obtain any tax credits directly from the agency concerned.
1.4. Multiple Locations – Where FaxSIPit provides FaxSIPit Services to multiple locations of Customer or affiliates of Customer (‘affiliate’ as defined in the Canada Business Corporations Act), one of Customer’s accounts must be designated the ‘Main Account’ for the purpose of the FaxSIPit Contract, and must accept financial responsibility for all affiliate accounts included under the FaxSIPit Contract. In the event that an associate or affiliate account fails to pay FaxSIPit, the ‘Main Account’ shall be liable for all charges and accrued interest incurred as a result of the associate or affiliate account’s use of the FaxSIPit Services.
2. CUSTOMER OBLIGATIONS
2.1. Billing Disputes – Customer must bring invoice inquiries and disputes to FaxSIPit’s attention in writing within thirty (30) days of the Invoice Date. After that time, Customer will be deemed to have agreed to the contents of the invoice and will have no right to challenge any element of the invoice. Billing disputes will be settled in accordance with Section 2.1 of this Appendix 1. Customer must pay and the undisputed portion of an invoice subsequent invoices in accordance with the FaxSIPit Contract.
2.2. Operating Conditions – Where applicable, Customer will at its own expense provide all necessary electrical and other utility connections and services, air conditioning equipment and other preparations and alterations to the Site(s) and will ensure that the operating and environmental conditions for the Equipment are suitable for the Equipment, and otherwise conform to any reasonable requirements FaxSIPit might stipulate from time to time. If the operating and environmental conditions for the Equipment do not conform to FaxSIPit’s reasonable requirements, FaxSIPit may refuse to proceed with the installation of the Equipment, or, if installed, remove the Equipment, at the Customer’s expense.
2.3. Illicit Use – Under no circumstances shall Customer use, and Customer shall ensure that its clients do not use, the FaxSIPit Services fraudulently or otherwise illegally including, without limitation: a) falsely reducing or avoiding in whole or in part the regular charges for FaxSIPit Services and the Equipment; b) obtaining, accessing, altering or destroying data files, programs, procedures or other information of FaxSIPit or FaxSIPit’s customers; c) interfering with FaxSIPit Services or affecting FaxSIPit’s customers; d) to directly or indirectly violates any law, rule, code or regulation or aids any unlawful act or undertaking. Customer shall indemnify and hold FaxSIPit harmless for any damages, costs, loss expenses, legal fees and other liabilities arising from the breach of this Section, including any third party claims.
2.4. Liability – If any of Customer’s obligations under The FaxSIPit Contract are breached, Customer shall be liable to FaxSIPit for all costs (including legal fees) incurred by FaxSIPit in remedying the breach. In the event that Customer’s client breaches any of the provisions of the FaxSIPit Contract, Customer shall take reasonable steps to remedy the breach and to prevent continuing breaches, which may include issuing such notices to cure the default as are legally required, and termination of the client’s entitlement to utilize the FaxSIPit Services.
2.5. Client Cooperation – In the case of carriers or resellers, Customer shall ensure that its clients will comply, at all times, with the Terms and Conditions to the extent that Customer’s client makes use of the FaxSIPit Services or Equipment.
2.6. Customer Facilities and Local Access – Customer has sole responsibility for the installation, testing, operation of, and costs associated with, any facilities, services and equipment (the ‘Customer Facilities’) other than those specifically to be provided by FaxSIPit as described in the Schedule(s). In no event will the untimely installation or non-operation of Customer Facilities relieve Customer of its obligation to pay charges for the FaxSIPit Services. Unless otherwise specified within the respective Schedules(s), Customer assumes full responsibility for local access arrangements (including costs) which are adequate to the requirements for interconnecting with FaxSIPit Services and/or the Equipment. Cancellation of Request for FaxSIPit Services – Customer may cancel a request for FaxSIPit Services prior to the intended date for installation of such FaxSIPit Services, by (30) days written notice, if Customer agrees to pay FaxSIPit all pass-through charges incurred by FaxSIPit in provisioning the FaxSIPit Services, including the full amount of charges for any non-cancelable commitments made by FaxSIPit to Contractors (“Contractor” means any third party from which FaxSIPit has acquired any service or facilities used in providing the FaxSIPit Services), plus reasonable administrative costs.
2.7. Fraudulent Calls – Customer shall indemnify and hold FaxSIPit harmless from and against all costs, expenses, claims or actions arising now and in the future from fraudulent calls of any nature carried by means of the FaxSIPit Services. Customer shall not be excused from paying FaxSIPit charges for FaxSIPit Services provided to Customer, or any portion thereof, on the basis that fraudulent calls comprised a portion of the FaxSIPit Services. In the event FaxSIPit discovers fraudulent calls are being made, or reasonably believes fraudulent calls are being made, in respect of the FaxSIPit Services, FaxSIPit shall notify Customer in writing of such fraudulent use and Customer shall use all commercially reasonable efforts to prevent or terminate the fraudulent use. If Customer does not terminate the fraudulent use within seven (7) days of receiving notice from FaxSIPit, FaxSIPit will have the right with notice to Customer, to take immediate action such as suspension of the FaxSIPit Services of such other action that is reasonably necessary to prevent or terminate such fraudulent use from taking place.
2.8. Security – Protection, security, and management of usage and security of the Customer’s network is the sole responsibility of the Customer. In the event that the Customers network security is violated the offence will be remedied between the Customer and the offending party(s). FaxSIPit will not compensate Customer for damages incurred due to security violations(s) of Customer equipment or network(s), nor will the Customer make deductions or offsets of any kind for usage charges due FaxSIPit.
3. REGULATORY COMPLIANCE
Both parties are responsible for obtaining and keeping current all licenses, approvals, filings and regulatory authorities required in respect of the regulation of telecommunications federally, per state and provincially, in the United States and Canada in conjunction with the FaxSIPit Services. If either party is prohibited, on a temporary or long-term basis, from conducting its telecommunications operations as a result of a breach by either party of any regulatory requirements, the offending party shall immediately notify the affected party in writing, and the affected party a shall have the right to terminate the FaxSIPit Contract forthwith without further notice.
4. FAXSIPIT OBLIGATIONS
4.1. Maintenance – Where applicable and unless otherwise specified in the Schedule(s), FaxSIPit will maintain and repair the Equipment, except where damage is caused by Customer’s breach of the FaxSIPit Contract, in which case the Customer will be solely responsible for the maintenance and repair of the Equipment.
4.2. Installation – Where applicable, as soon as reasonably possible following the Commencement Date, FaxSIPit will install the Equipment. FaxSIPit will not be responsible for ensuring power and non FaxSIPit telecommunications connections to and from the Site(s).
4.3. Scheduled Maintenance – The Customer agrees that it may be necessary for FaxSIPit to temporarily suspend the FaxSIPit Services for technical reasons or to maintain the FaxSIPit network, the Equipment or any other facilities. For moderate to high risk scheduled maintenance suspensions as determined by FaxSIPit, FaxSIPit shall send notification of such intent ten (10) business days in advance. For low risk scheduled maintenance situations as determined by FaxSIPit, FaxSIPit shall provide five (5) business days advance notice to the Customer regarding any scheduled maintenance. The regular maintenance window period is on Sundays between 12:00 a.m. and 6:00 a.m. local time. Such suspension of FaxSIPit Services will not be an “Interruption” of the FaxSIPit Services for the purpose of calculating network availability or the Customer’s entitlement to credit for Interruption of the FaxSIPit Services, unless such Interruption exceeds four (4) hours in length. If such Interruption exceeds four (4) hours, the two (2) hour period applicable for determining a Customer’s entitlement to a credit allowance shall commence following the completion of the four (4) hour period. FaxSIPit may interrupt the FaxSIPit Services at any time for any duration of time, without penalty or liability for any claim by Customer, where necessary to prevent improper or unlawful use of the FaxSIPit Services, FaxSIPit’s facilities or connections or FaxSIPit’s network.
4.4. Service Interruption Credit – In the event that the Customer has experienced an “Interruption” of FaxSIPit Service (interpreted according to paragraph 4.5 below) exceeding 2 hours for a single incident, FaxSIPit may, at its sole discretion, give the Customer a credit on its invoice within (60) days of the FaxSIPit Services service interruption. Such credit will be applicable to FaxSIPit Services provided under the Schedules for Internet Services, Frame Relay and Private Line. The amount of the credit shall be calculated as twice the hourly rate for the interrupted FaxSIPit Service (which hourly rate is calculated based on 720 hours in a month) multiplied by the duration of the interruption, determined to the nearest tenth of an hour. No allowance shall be given in respect of any non-recurring charges.
4.5. Definition of Interruption – “Interruption” in the FaxSIPit Contract shall mean the inability of FaxSIPit to complete network connections due to equipment malfunctions or human errors. Interruption does not include, and no allowances shall be given for, interruptions arising from the failure of any service or facilities provided by the Customer or an entity other than FaxSIPit (provided that, for this purpose only, “FaxSIPit” shall be deemed to include any third party from which FaxSIPit has acquired any service or facilities used in providing the FaxSIPit Services), or from the negligence or willful act or omission of the Customer. Interruption does not include the termination of the FaxSIPit Services by FaxSIPit, pursuant to the terms of the FaxSIPit Contract for non-payment of amounts or deposits due, for unlawful or improper use of facilities or FaxSIPit Services by the Customer, or for any other reason provided under the FaxSIPit Contract or applicable law.
4.6. Resident Software – Where any of the FaxSIPit Services contained in computer programming or software (the “Resident Software”), FaxSIPit hereby grants to Customer and Customer’s clients a non-exclusive, non-transferable royalty-free license to use, during the Term of the FaxSIPit Contract, the Resident Software for the sole purpose of enabling Customer and Customer’s client to obtain the FaxSIPit Services. Customer recognizes that the Resident Software constitutes valuable trade secrets of FaxSIPit and its licensors, and that FaxSIPit and its licensors own all of the technology, know-how and intellectual property rights associated with such Software, the FaxSIPit Services and the Equipment. Customer shall use its best efforts to protect and keep confidential the Resident Software used by it, and shall make no attempt to examine, copy, alter, reverse engineer, tamper with or otherwise misuse the Resident Software.
4.7. Trade Marks and Trade Names – Customer shall not display or otherwise use any trade mark, trade name, logo, symbols, coined word or combination of words used by FaxSIPit or permit the same to be displayed or otherwise used in connection with any business conducted or controlled by Customer except as may be specified or approved in advance by FaxSIPit in writing.
It is recognized that technical, financial, commercial, legal or other information (collectively the “Confidential Information”) may be disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) whether orally or in any other media form between Parties during the course of the FaxSIPit Contract. The Receiving Party shall not disclose the Confidential Information to any third party without the prior express written consent of the Disclosing Party, unless compelled by law or order of a court or regulatory body having jurisdiction. Any Confidential Information disclosed shall remain the property of the Disclosing Party. Notwithstanding the foregoing, where FaxSIPit is the Receiving Party, it may use Confidential Information received from the Customer for the purposes of providing the FaxSIPit Services to the Customer and may use or disclose such Information in any manner otherwise permitted or authorized by an applicable municipal, provincial/state or federal law.
6.1. By Both Parties – If either Party does any of the following: (I) breaches any of its obligations under The FaxSIPit Contract or any Schedule to the FaxSIPit Contract and fails to correct the breach within thirty (30) calendar days after receiving written notice from the affected Party to do so; or (ii) should become insolvent, bankrupt or subject to any process, proceeding or arrangement for the benefit of its creditors, including any reorganization, receivership or liquidation proceedings, then the Party not in breach may terminate the FaxSIPit Contract by giving the other Party written notice of termination.
6.2. Relocation of FaxSIPit Services – If Customer wishes to relocate all of the FaxSIPit Services or only a portion of the FaxSIPit Services as set forth in one or more Schedules to the FaxSIPit Contract, Customer may make such relocation request to FaxSIPit. Subject to FaxSIPit being able technically and economically to provide the FaxSIPit Services at the Customer’s desired location and subject to FaxSIPit and Customer being able to agree upon the terms and conditions that would apply to any relocation, the FaxSIPit Services or the applicable portion of the FaxSIPit Services will be relocated.
6.3. Substitute Service – If Customer wishes to substitute different FaxSIPit Services for all or any portion of the FaxSIPit Services as set forth in one or more Schedules to the FaxSIPit Contract before the Term for all or any one or more Schedules for the FaxSIPit Services has expired, Customer may do so without being required to pay to FaxSIPit termination charges determined according to Section 7.4 hereof if FaxSIPit can provide the requested FaxSIPit Services at the Customer’s desired location, the Customer signs a new Schedule for the FaxSIPit Services and the revenues that will accrue to FaxSIPit under the new FaxSIPit Services Schedule for the service term chosen by the Customer are substantially equivalent, as determined by FaxSIPit, to the revenues remaining due to FaxSIPit for the FaxSIPit Services Customer is substituting for over the unexpired balance of the service term for such FaxSIPit Services being substituted for.
6.4. Early Termination/Cancellation
6.4.1. Entire Contract. If prior to the expiry of the Term of the FaxSIPit Contract, FaxSIPit terminates The FaxSIPit Contract for the failure of Customer to fulfill its obligations under this Agreement or Customer desires to terminate the FaxSIPit Contract and all of the FaxSIPit Services early, Customer shall pay to FaxSIPit as liquidated damages and not as a penalty, for all FaxSIPit Services Schedules that have a Minimum Monthly Commitment an amount equal to fifty (50%) per cent the total monthly charges for such FaxSIPit Services for the remainder of the service term from the date of termination for such FaxSIPit Services. For Schedules for which there is no Minimum Monthly Commitment (MMC) or Minimum Monthly Billing Fees (MMBF), Customer shall pay to FaxSIPit an amount equal to fifty (50%) per cent of the total monthly charges for the FaxSIPit Services for each Schedule being terminated for the remainder of the Term of each such Schedule determined from the date of termination based on the total monthly charge for the FaxSIPit Service in the month immediately preceding the date of termination for the FaxSIPit Service being terminated. Such amounts are agreed by the Customer to be genuine liquidated damages and not a penalty. Additionally, Customer shall continue to be responsible to pay to FaxSIPit for all FaxSIPit Services being terminated amounts owing by FaxSIPit to third parties for such things as local loops required to provide the FaxSIPit Services being terminated for so long as FaxSIPit is obligated to pay such third party charges.
6.4.2. Termination of One or More Service Schedules. If prior to the expiry of the service term for any one or more Schedule for the FaxSIPit Services, FaxSIPit terminates one or more of such Schedules, but not the entire Contract, for failure of Customer to fulfill its obligations under the FaxSIPit Contract, or Customer desires to terminate any one or more Schedules early (before the expiry of the Term), Customer shall pay to FaxSIPit as liquidated damages and not as a penalty, an amount equal to fifty (50%) per cent of the MMC or MMBF, and for Schedule not having a MMC or MMBF, an amount equal to fifty (50%) per cent of the total monthly charges for the FaxSIPit Services being terminated for the remainder of the Term for such FaxSIPit Services determined from the date of termination based on the total monthly charge for the FaxSIPit Service in the month immediately preceding the date of termination for the FaxSIPit Service being terminated. Additionally, for each such FaxSIPit Services Schedule being terminated, Customer shall continue to be responsible to pay FaxSIPit all amounts owing by FaxSIPit to third parties for such things as local loops required to provide to the Customer the FaxSIPit Services being terminated, for as long as FaxSIPit is obligated to pay such third party charges.
6.4.3. FaxSIPit’s Obligation to Provide Services FaxSIPit’s obligation to provide the Equipment and the FaxSIPit Services is subject to FaxSIPit being able to obtain and maintain upon commercially reasonable terms, the necessary facilities and services to be able to provide the FaxSIPit Services to the Customer. Notwithstanding any other provision of the FaxSIPit Contract or any Schedules hereto, in the event FaxSIPit is unable to obtain or maintain on commercially reasonable terms the required facilities and services to provide the Equipment and the FaxSIPit Services to the Customer or the required facilities and services are no longer available then FaxSIPit may at its option, upon thirty (30) days prior written notice to the Customer, either terminate the enacted FaxSIPit Services Schedule or this Contract as a whole or propose to the Customer revised pricing for the FaxSIPit Services taking into consideration the increased price of such facilities and services to FaxSIPit. If FaxSIPit elects to re-price the FaxSIPit Services (which FaxSIPit shall not be obligated to do as opposed to choosing instead to terminate the affected FaxSIPit Services Schedule or Contract as a whole), and such revised FaxSIPit Services Schedule or this Contract as a whole where there is one FaxSIPit Services Schedule then in effect, shall terminate upon communication by the Customer of non-acceptance of the proposed revised FaxSIPit Services pricing to FaxSIPit. The Customer shall communicate its acceptance or non-acceptance of any proposed revised FaxSIPit Services pricing to FaxSIPit within five (5) business days of receipt of notice of such revised pricing from FaxSIPit. If the Customer fails to do so, then Customer shall be deemed not to accept such revised FaxSIPit Services pricing and Contract shall terminate. Any termination of the Contract pursuant to this paragraph shall be without the requirement for the payment of any termination charges or early cancellation fees by the Customer, other than any cancellation fee that FaxSIPit must pay to any third party. Customer shall remain obligated to reimburse FaxSIPit for any such fees where the Contract is terminated by the Customer pursuant to this paragraph or is deemed to have terminated.
7. RETURN OF MATERIALS
Upon the expiration or earlier termination of the Contract, Customer shall cease all use of the Resident Software, and Customer will permit FaxSIPit to remove from Customer’s premises the Resident Software and all material in whatever form or whatever medium that contain or disclose any information relating to the FaxSIPit Services Where the site(s) is on the premises of a client of Customer, Customer shall ensure that FaxSIPit may exercise the same rights to enter and remove the Software and all material in whatever form or whatever medium that contain or disclose any information relating to the FaxSIPit Services and the Equipment.
8. SUSPENSION OF SERVICES
Notwithstanding any other provision of these Terms and Conditions in the event payment in full is not received from Customer by the Due Date, FaxSIPit shall also have the right, after giving Customer three (3) days written notice, to suspend all or any portion of the FaxSIPit Services to Customer until such time as Customer has paid in full all charges then due, including late fees. Following such payment, FaxSIPit shall be required to reinstitute the FaxSIPit Services to Customer only upon the provision by Customer to FaxSIPit of satisfactory assurance (such as a deposit) of Customer’s ability to pay for FaxSIPit Services, and Customer’s advance payment of the cost of reinstituting FaxSIPit Services including FaxSIPit administrative costs. If Customer fails to make such payment by a date determined by, and acceptable to, FaxSIPit, Customer will be deemed to have cancelled the FaxSIPit Services effective as of such date. Such cancellation shall not relieve Customer of payment liability pursuant to Section 7.4 above.
9. LIMITATION OF LIABILITY
CUSTOMER ACKNOWLEDGES AND AGREES NEITHER FAXSIPIT NOR ANY OF ITS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR REPRESENTATIVES OR AGENTS OR ANY OF THEIR SUCCESSORS AND ASSIGNS WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS OR SAVINGS, LOSS OF DATA, OR LOSS OF USE) IN CONNECTION WITH THIS AGREEMENT, THE FAXSIPIT SERVICES OR THE EQUIPMENT OR ANY OTHER
INFORMATION, MATERIAL OR SERVICES PROVIDED BY FAXSIPIT TO CUSTOMER UNDER OR RELATED TO THE FAXSIPIT CONTRACT, WHETHER ARISING OUT OF CONTRACT, TORT OR OTHER BASIS. IF DESPITE THE FOREGOING LIMITATIONS, FAXSIPIT OR ANY OF ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES OR AGENTS SHOULD BECOME LIABLE TO CUSTOMER OR ANY OTHER PERSON IN CONNECTION WITH THE FAXSIPIT CONTRACT FOR ANY REASON, THEN THE MAXIMUM AGGREGATE LIABILITY OF FAXSIPIT, ITS MEMBERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND REPRESENTATIVES OR AGENTS AND ANY OF THEIR SUCCESSORS AND ASSIGNS FOR ALL SUCH THINGS AND TO ALL SUCH PARTIES, WILL BE LIMITED TO THE LESSER OF THE ACTUAL AMOUNT OF LOSS OR DAMAGE SUFFERED BY THE CLAIMANT OR THE AMOUNT PAYABLE BY CUSTOMER TO FAXSIPIT FOR ONE MONTH OF SERVICE UNDER THE FAXSIPIT CONTRACT.
Customer will indemnify and save harmless FaxSIPit and its shareholders, directors, officers, employees, agents, contractors, representatives and each and any of their successors and assigns from and against all damages, losses, costs and expenses (including actual legal fees and costs), fines and liabilities incurred by or awarded, asserted or claimed against FaxSIPit or any of its or agents , shareholders, directors, officers, employees, representatives and each or any of their successors and assigns in connection with Customer’s negligence, activities or omissions, or breaches of its obligations under the FaxSIPit Contract, including any third party claims and without limiting the generality of the foregoing, any claims brought by a person using or relying upon any advice given or publication produced and distributed by Customer.
11. THIS SECTION WAS LEFT BLANK INTENTIONALLY.
Any notice, request, demand consent or other communication provided or permitted under the FaxSIPit Contract shall be in writing and shall be deemed to be sufficiently given if personally delivered, sent by facsimile, or sent by registered mail, postage prepaid, to the Party for which it is intended at its address specified in the FaxSIPit Contract. Any notice so given shall be deemed to have been received on the date on which it was delivered in person, or sent by facsimile, or, if sent by registered mail only (which method of service shall not be a valid form of providing notice during a postal strike), on the fifth business day after the sending.
Any notice by FaxSIPit to the Customer regarding a rate change or invoicing for the FaxSIPit Service may be communicated by email address of the Customer set for in Appendix A of the FaxSIPit Contract Any such notice communicated by email to the Customer is deemed to have been received by the Customer on the day such notice is sent. It is the Customer’s responsibility to inform FaxSIPit of any change in its email address from time to time for the purpose of receiving such email notices relating to rate changes or invoicing issues regarding the FaxSIPit Service.
Customer may not assign, transfer or otherwise dispose of the FaxSIPit Contract or any interest therein without the prior, express written consent of FaxSIPit, which consent shall not be unreasonably withheld. FaxSIPit may assign its rights under the FaxSIPit Contract.
14. GOVERNING LAW
The FaxSIPit Contract shall be interpreted in accordance with and be governed in all respects by the laws of the Province of British Columbia and the laws of Canada applicable therein. The courts of British Columbia shall have non-exclusive jurisdiction to entertain any action or proceeding brought by the Parties in connection with t or any alleged breach of the FaxSIPit Contract.
15. Customer Risk Acknowledgement
Customer acknowledges that it accepts all risk of any unauthorized or illegal use of the FaxSIPit network or any inter-connected network by third parties. FaxSIPit will use reasonable commercial efforts to assure a reasonable level of security for its network. However, FaxSIPit provides no warranties, makes no representations, and accepts no liability for the unauthorized or illegal access or interference with Customer’s network unless such access or interference is caused by the intentional unlawful acts of FaxSIPit, its agents or employees.
16. THIS SECTION WAS LEFT BLANK INTENTIONALLY
Notwithstanding termination of the FaxSIPit Contract by the Parties, the terms and conditions contained in the FaxSIPit Contract, that by their sense and context are intended to survive the performance by the Parties, shall so survive the completion of performance and termination of the FaxSIPit Contract, including, without limitation, provisions for indemnification and the making of any and all payments due hereunder.
Customer may choose to interconnect FaxSIPit Services with services and/or facilities of other authorized communications carriers and/or with private systems where those services and/or facilities comply with general industry standards. Unless explicitly agreed to by FaxSIPit, FaxSIPit Services do not form part of any joint undertaking with other such carriers or private systems.
The FaxSIPit Contract and the relationship established hereunder, does not constitute a partnership, joint venture, relationship of franchisor and franchisee, relationship of principal and agent, or relationship of employer and employee, between FaxSIPit and Customer or between FaxSIPit and any officers, directors, employees, agents, clients or contractors of Customer. Customer shall have no authority to bind FaxSIPit or to assume or create any obligation or responsibility, expressed or implied, on FaxSIPit’s behalf, or in its name, nor shall it represent to anyone that it has such power or authority.
20. FORCE MAJEURE
a. Each Party shall be relieved from the performance of its obligations under the FaxSIPit Contract if, and for so long as, it is unable to perform such obligations due to circumstances beyond its reasonable control, including, but not limited to, power surges or failures, acts of God, acts or omissions of any common carrier, labor disputes, regulatory restrictions, changes in law or regulation, or other acts of governmental authority. An event of force majeure shall not in any way be an acceptable excuse for a failure to pay or a delay by Customer in paying any amount when due under the FaxSIPit Contract and Customer’s payment obligations under the FaxSIPit Contract shall remain unaffected by any such event.
b. In no event will either FaxSIPit, any supplier of services to FaxSIPit or any landlord or licensor of FaxSIPit where FaxSIPit equipment or facilities are located, be liable in any manner or upon any basis to Customer for any loss or damages, whether direct or indirect, incidental, special or consequential, resulting from an interruption in the Services provided by FaxSIPit to the Customer, caused by or attributable to, directly or indirectly, re or other perils or factors beyond the reasonable control of FaxSIPit and any of its suppliers, landlords or licensees.
21. DISPUTE RESOLUTION
a. Except for nonpayment, any dispute between the Parties shall be resolved in accordance with this Section 21. Upon the written request of a Party, the other Party shall appoint a designated representative representatives shall discuss the issue and negotiate in good faith in an effort to resolve the dispute without the necessity for any formal proceeding. During the course of negotiations, the Parties may request and exchange non-privileged information reasonably related to the FaxSIPit Contract. The specific format of the discussions shall be left to the discretion of the designated representatives, and may include the preparation of agreed-upon statements of facts or written statements of position.
b. If a dispute cannot be resolved or settled informally, it shall be settled and determined by a Court of Law in the province of British Columbia Canada.
22. NO WAIVER
The failure of either party at any time to require performance by either party of any provision, condition or covenant in the FaxSIPit Contract shall in no way affect its right thereafter to enforce the provision, condition or covenant, nor shall the waiver by either party of any breach of any provision, condition or covenant in the FaxSIPit Contract shall not be taken or held to be a waiver of any future breach of the same provision, condition or covenant.
The FaxSIPit Contract shall be binding upon and inure to the benefit of the Parties hereto, their respective heirs, successors, assigns, and legal representative of any type whatsoever.
24. LANGUAGE OF CONTRACT
FaxSIPit and Customer confirm that they wish to have the FaxSIPit Contract written in English only.
25. UNENFORCEABLE PROVISIONS
The provisions of the FaxSIPit Contract are severable. If a provision in the Contract is found to be unenforceable, the Contract will be deemed amended to the minimum extent necessary to make the Contract fully enforceable so long as the Contract as amended is consistent with the Parties’ original interest and expectations.
Except as provided for in the FaxSIPit Contract, the FaxSIPit Contract may be amended only with the written consent of both Parties.