Service Terms And Conditions
Subscribed recurring services including Hosted Services, Data Services and Carrier Services.
1- Terms of service
a. These services will be provided for pursuant to the sales agreement agreed to by Smart IP and the Customer, and per the period set out in the sales agreement. This Agreement, as it applies to a Service Schedule, will continue as long as any Service Schedule remains in effect.
b. This Agreement becomes binding on the customer when signed, and the Term for a Service will commence on the date that the Service is activated as determined by Smart IP’ records (the “Activation Date”) and shall be automatically renew for successive term(s) equal to a twelve (12) month Term, unless either Party shall have given notice of termination at least 60 days prior to completion of the Term or any renewal thereof
c. The customer acknowledges and agrees that the Activation Date for the Services must be scheduled at least 5 business days in advance. Failure to provide Smart IP with appropriate notice of a change in scheduled Activation Date(s) may result in additional charges and fees for provisioning the Service, of which Smart IP will notify the customer of prior to rescheduling a new Activation Date.
d. This Agreement may be:
i. terminated by either Party effective the end of the then current Term of the Agreement by the terminating Party giving the other Party at least sixty (60) days written notice before the end of the then current Term;
ii. terminated by either Party without it incurring liability where the other Party commits a material breach of any provision in this Agreement and fails to cure it within thirty (30) days after receipt of written notice of the breach except that in the case of material breach by Smart IP, the customers’ termination right extends only to those Services directly and materially impacted by such breach;
iii. suspended or terminated by Smart IP without it incurring any liability whatsoever:
- immediately upon Your filing of a bankruptcy petition or similar proceeding under the law of any jurisdiction, or upon Your becoming insolvent or making any assignment for the benefit of creditors, or upon the dissolution, liquidation, or appointment of a receiver of Your property or where any Law prohibits Smart IP from providing Services;
- upon thirty (30) days written notice if customer behaves in a way that is threatening, harassing, abusive or unreasonable to Smart IP, its employees and/or agents;
- upon providing the customer forty-eight (48) hours’ notice where possible, where the customer uses or are reasonably suspected by Smart IP of using the Services in a fraudulent or illegal manner, or the customer fails to meet Smart IP’s credit requirements; or
- upon providing the customer with ten (10) days prior written notice, where the customer fails to make payment in full of all undisputed portions of the customers’ invoice as set forth in Section 2.
e. The customer acknowledges and agree that termination or suspension of the Services provided under this Agreement for any reason whatsoever does not eliminate the customers’ responsibility to pay all fees and other amounts owed to Smart IP up to the date of termination or suspension without any deduction or right of set off whatsoever. The customer also acknowledges and agrees that Smart IP reserves the right to charge Service and Administration charges upon reactivation of service following suspension or termination.
f. If the customer terminates this Agreement other than in accordance with the terms of this Agreement, the customer will be required to pay to Smart IP as liquidated damages, and not as a penalty, an amount which is equal to the sum of: (a) fifty percent (50%) of the average monthly usage of each of the Services (where applicable); (b) fifty (50%) of the monthly recurring charge for each of the Services, multiplied by the number of months remaining in the then current Term; (c) a charge equivalent to any Equipment discount the customer received as set out in the Agreement; and (d) any other applicable charges set out in the Agreement. In addition, the customer will be responsible for any other charges that Smart IP, acting reasonably, is liable to incur for the remainder of the then current Term, including without limitation, installation charges, removal costs and rental costs, and the customer will forfeit a refund of any prepayment made for Services.
2- Payment and Billing
a. The customer is responsible for any and all charges (without any right of set-off or deduction) for the Services. The Customer is responsible for paying all calls originating from and charged calls accepted at its telephones and/or equipment, regardless of who made or accepted them. The Customer agrees to pay the rates and charges including any applicable service charges, other nonrecurring charges or feature changes or any other charges for their services in accordance with Smart IPs’ price quote as set out in the applicable Schedule(s) and as outlined in Smart IPs’ monthly invoices. Smart IP reserves the right to change tariff rates should there be a price increase and these rates will be made available to all customers on Smart IP’s website.
b. All monthly services, are to be paid for by PAD. Hardware, installation setup fees, start-up costs may be paid for on approved credit terms and will be billed at time of order. Any other credit terms or offerings for the customer will be offered at the sole discretion of Smart IP.
c. All fixed and variable service charges (subscription services) are payable monthly. Notwithstanding anything contained in section 2 and 3, a late payment charge of 1.5% per month, will accrue on any amounts remaining unpaid for thirty (30) days, after the date of any invoice (the “Interest Application Date”) The Customer is responsible for any applicable Provincial, or Federal taxes or similar charges including regulatory recovery fees, universal service fees, 911 fees, and government fees prescribed by the CRTC authorities. The Customer shall be responsible for paying, at any time, a previously unbilled or under billed charge where it is correctly billed from the date it was incurred after it has been correctly invoiced. There shall be no interest payable by the customer for the period prior to the billing date as it pertains to the previously unbilled or under billed charges.
d. Where Smart IP has reasonable grounds for believing that the Customer intends to defraud Smart IP, Smart IP may demand immediate payment from the Customer. The Customer shall be liable to Smart IP for all reasonable costs and/or expenses incurred; including legal fees, in the collection or attempted collection of any unpaid charges and such amounts shall represent a debt owed by the Customer to Smart IP. Cheques rejected, due to Non-Sufficient Funds, will be subject to a service charge (‘NSF Charge’). Smart IP accepts payment by PAD, and in some circumstances (on prior approval), Visa and Mastercard and if the customer chooses to pay by either one of these methods, the Customer authorizes Smart IP to charge the total amount of the invoice to the Customer’s chosen payment method.
3- Rates And Charges
a. The Customer are responsible for all charges for all Services and the customer agrees to pay the rates and charges for all Services as set out in this Agreement, including system access fee(s), monthly service charges, any restoral fees, airtime, data transfer fees, long distance fees, fees incurred in the course of provisioning Services, and any other charges incurred in using the customers Services, regardless of who used the Services.
b. The Customer are solely responsible in the event of any charges arising from fraudulent and, or unauthorized use of the Services, without regard to how the fraudulent and, or unauthorized use occurred.
c. Smart IP reserves the right to change rates for any and all Services upon the provision of thirty (30) days’ notice.
4- Credit Approval
a. Credit terms may be granted for any goods and services not being paid for by credit card, at the discretion of Smart IP, subject to the following:
b, Smart IP will collect any information from the customer to facilitate credit inquiries about same, and the customer consent to the disclosure of such information from and to credit grantors, credit bureaus and suppliers of services as Smart IP deems appropriate at any time; and
c. Despite any other provisions of this Agreement, the customers’ outstanding charges for Services will not at any time whatsoever, exceed the approved credit limit, without prior approval by Smart IP; and
d. Any further credit terms and requirements Smart IP may establish from time to time to satisfy acceptable credit security and grant acceptable credit terms to the customer.
5-Access to Facilities
a. The customer grants Smart IP any such access required (if any) to install, establish, troubleshoot and confirm the agreed to services.
6-Equipment and Software
a. Where required, Smart IP will provide and install equipment, facilities and products, including cables and documentation (“Equipment”) to establish and provide the customer with Services. The Customer agrees that the Equipment, and any North American Numbering Plan numbers and/or IP addresses assigned to the Customer will at all times remain the property of Smart IP and the Customer has no right, title or interest in or to the Equipment and any North American Numbering Plan numbers and/or IP addresses assigned to the Customer except for use under this Agreement.
b. Smart IP will make available software for use (“Software”) where required for the Services. All Software made available by Smart IP remains the property of the Software provider, which may be Smart IP, its suppliers or another party as applicable. Use of Software made available by Smart IP is subject to applicable license agreements that must be accepted prior to installation or use of the Software. Unless otherwise stated, license agreements for Software required by Service expire upon cancellation or termination of Service. The Customer is responsible for the installation and operation of all Software made available by Smart IP.
c. The Customer is solely responsible for the physical security and protection of all Equipment provided for use with the Services. The customer is also solely responsible for the data and network security of Equipment and Software provided for use with the Services where connected to non-Smart IP equipment, software, systems and networks.
d. The customer is solely responsible for the security and protection of the passwords and credentials for Equipment and Software and the passwords and credentials that are used by the Equipment and Software to provide Services.
c. The Equipment will be considered to be in good working condition, unless the Customer gives notice to Smart IP to the contrary within five (5) days of receiving the Equipment. The Customer agrees:
i. to not re-arrange, disconnect, remove, reconfigure or repair any Equipment, including passwords, except by prior written agreement with Smart IP;
ii. upon deactivation or termination of Services, to return the Equipment immediately to Smart IP in good working condition excluding normal wear and tear. Charges for Equipment will continue and be payable until the Equipment is returned and failure to do so within the time specified by Smart IP will result in Smart IP, at its option repossessing the Equipment at the Customers’ expense or the Customer paying Smart IP the replacement cost of such Equipment; and
iii. if the Equipment is damaged, lost or stolen while in the Customers’ care, or returned to Smart IP in an unusable condition, to pay the replacement value of the Equipment as determined by Smart IP.
a. The Parties acknowledge that the existence and the terms of this Agreement and any oral or written information exchanged between the Parties in connection with the preparation and performance this Agreement are regarded as confidential information. Each Party shall maintain confidentiality of all such confidential information, and without obtaining the written consent of the other Party, it shall not disclose any relevant confidential information to any third parties, except for the information that: (a) is or will be in the public domain (other than through the receiving Party’s unauthorized disclosure); (b) is under the obligation to be disclosed pursuant to the applicable laws or regulations, rules of any stock exchange, or orders of the court or other government authorities; or (c) is required to be disclosed by any Party to its shareholders, investors, legal counsels or financial advisors regarding the transaction contemplated hereunder, provided that such shareholders, investors, legal counsels or financial advisors shall be bound by the confidentiality obligations similar to those set forth in this Section, with the exception of such information required to provide the services. Disclosure of any confidential information by the staff members or agencies hired by any Party shall be deemed disclosure of such confidential information by such Party, which Party shall be held liable for breach of this Agreement. This Section shall survive the termination of this Agreement for any reason.
8-Disclaimer And Limitation Of Liability
a. Smart IP provides the Services, Equipment and Software to the Customer on an “as is” basis and disclaims all warranties, whether express, implied or statutory, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or system integration. No warranty is made that the Services, Equipment and Software will operate in an error free or uninterrupted manner.
b. Smart IP will not be responsible for any damages including actual, direct, indirect, incidental, special, consequential, punitive or reliance, or for any lost profits of any kind, even if the damages were foreseeable, arising out of the provision of the Services or in any way arising out of this Agreement. The customers’ exclusive remedy and Smart IPs’ liability, if any, for damages for any cause whatsoever, will be no more than the recurring charges paid by the customer for the affected Service for the one (1) month preceding the event alleged to have caused damages. Any legal action arising in connection with this Agreement must be brought within one (1) year after the cause of action arises. For the purpose of this section, “Smart IP” includes its officers, directors, employees, agents and affiliates.
c. NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, IN THE EVENT YOU SUBSCRIBE FOR SMART IP SERVICES THAT INCLUDE THE CUSTOMER OR IT’S EMPLOYEES OR AGENTS RECORDING INDIVIDUAL TELEPHONE CONVERSATIONS AND/OR COMPUTER SCREEN ACTIVITY, LAWS REGARDING NOTICE AND NOTIFICATION REQUIREMENTS WITH RESPECT TO SUCH RECORDING VARY ACROSS JURISDICTIONS AND THE CUSTOMER AGREES TO BE SOLELY RESPONSIBLE FOR COMPLYING WITH ALL APPLICABLE LAWS. SMART IP EXPRESSLY DISCLAIMS ANY LIABILITY WITH RESPECT TO THE CUSTOMERS’ USE OF SMART IP’S SERVICES FOR RECORDING CONVERSATIONS AND YOU HEREBY FULLY RELEASE AND INDEMNIFY SMART IP, TO THE EXTENT PERMITTED BY LAW, FROM ANY AND ALL CLAIMS AND LIABILITY IN RELATION THERETO.
a. THE CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS SMART IP, ITS AFFILIATES, UNDERLYING CARRIERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS, AND SUPPLIERS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE LEGAL FEES, RESULTING FROM THE USE OF THE SERVICES OR FROM ANY BREACH OF THIS AGREEMENT AND ANY SCHEDULE(S) BY THE CUSTOMER EXCEPT AND TO THE EXTENT OF ANY NEGLIGENCE OR MISCONDUCT ON THE PART OF SMART IP. THE PROVISIONS OF THIS SECTION WILL SURVIVE TERMINATION OF THIS AGREEMENT.
a. The Customer must bring all billing inquiries and billing disputes to the attention of Smart IP, in writing, within thirty (30) days of the invoice date. Failure to do so shall constitute acceptance of the accuracy of the entire contents of the invoice, and the Customer will have no further right to challenge the accuracy of any portion of the invoice. The Customer agrees and acknowledges that the undisputed portion of any disputed invoice and all subsequent invoices shall be paid by the customer on a timely basis or the Service(s) may be terminated by Smart IP.
a. Customer agrees to maintain industry accepted safeguards over their network infrastructure and to safeguard all security information including passwords used to access Smart IP’s systems.
b. Customer agrees that they will ensure that firewalls, network equipment and systems remain secure and prevent unauthorized access to them. Customer acknowledges that they may receive passwords or usernames via the Internet or through e-mail and will take necessary steps to safeguard that information.
c. Customer acknowledges that they are responsible for any breach of their security or unauthorized use of their equipment or passwords to access Smart IP’s systems and that all telephone calls made by those unauthorized parties will be billable to the Customer’s account.
a. Customer acknowledges and agrees that the Service may not be compatible with certain models or brands of routers, modems or networking equipment.
b. Customer further acknowledges and agrees that the Service may not be compatible with certain Internet providers, mobile providers, mobile platforms or that those internet providers may choose to block the Services.
c. Customer agrees that the Service may not be compatible with certain telephony equipment and IP phone equipment. Customer agrees that Smart IP can only provide support and assistance with equipment.
a. Entire Agreement: This Agreement constitutes the entire agreement between the Parties regarding the provision of Services, and supersedes and replaces all prior agreements and representations whether written or oral with respect to the provision of Services. In the event of conflict between the terms of a quotation and these terms and conditions the terms of the quotation shall govern.
b. Amendment: You can only amend this main Agreement in writing signed by an authorized representative of Smart IP. This main Agreement can only be amended by a signatory authorized by Smart IP and not by any other Smart IP sales representatives, agents or employees.
c. Jurisdiction: This Agreement will be governed by the laws of Ontario and the applicable laws of Canada and the Parties agree to be subject to the exclusive jurisdiction of the courts of Ontario.
d. Independent Contractors: This Agreement will not be construed as constituting either Party as a partner or agent of the other Party or to create a joint venture in the conduct of business or otherwise.
e. Notices: Any notice or other communication required or permitted by this Agreement will be in writing and be provided by personal delivery, email, or by facsimile to the Customer or Smart IP at the last address or facsimile number provided in writing by each Party. Notices delivered in person will be effective on the date of such delivery and notices delivered by facsimile will be effective on the date of transmission provided printed proof of transmission is obtained.
f. Force Majeure: Smart IP will not be liable for any failure nor delay in performance to the extent caused by factors beyond its reasonable control, including, without limitation, labour disputes, fires or other casualties, weather or natural disasters, damage to facilities, or the conduct of third parties.
g. Assignment: You cannot assign this Agreement in whole or in part without Smart IP’s prior written consent. Smart IP can assign this Agreement to any affiliate or subsidiary. This Agreement is binding upon and enures to the benefit of the Parties and their respective successors and permitted assigns.
h. Severability and Waiver: If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, that provision will be deemed severable from the other provisions which will remain valid and enforceable. The terms of this Agreement may only be waived in writing and signed by both Parties. No failure by either Party to insist upon the other Party’s performance of any obligations hereunder will constitute waiver unless in writing.
14-Other policies and legal conditions
a. Smart IP’s policy for e911 services shall be governed by Smart IP’s current policy, which can be found at https://www.smartip/legal/e911-services
b. Any use of hosted services by Avaya’s shall be governed by Avaya’s policies and terms and conditions which can be found at https://www.smartip/legal/Avaya-EULA
c. All other legal terms and conditions that may govern the business relationship with Smart IP can be found at https://www.smartip.ca/legal
14-Entire Agreement and changes
The Agreement, including any applicable DPA, sets forth the entire agreement between us relating to the Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. If there is a conflict between an executed Order, these Terms, the DPA if applicable, and the Service Descriptions, the conflict will be resolved in that order, but only for the specific Services described in the applicable Order. Nothing contained in any document submitted by you will add to or otherwise modify the Agreement. These terms and conditions may be updated from time to time, and can be reviewed at any time at https://www.smartip/legal/service-terms-and-conditions. The customers continued use and access of the services constitutes acceptance of the then-current terms and conditions.
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