Terms and Conditions
This agreement (“Agreement”) is between VaxStream or its Dealers (“the Company or sometimes the Company’s”) and an end user (“End User”) of the Company Service Plan. Any Company services or products (“Services”) provided by Company to End User shall be governed by the terms and conditions herein. Any of the following actions constitutes your agreement, without limitation or qualification, to be bound by, and to comply with, the terms of this Agreement: (i) your initialization of the Service, either on the telephone or web page, through the use of your Number and phone password, (ii) your registering for Service on our Web page and selecting “I Accept” as part of the registration process, or (iii) your signature on a VAXSTREAM Setup Form.END USER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
End User acknowledges that they are of legal age to enter into this Agreement.
- TERMS AND CONDITIONS. The terms and conditions stated herein supersedes any and all terms and conditions set forth in any other document or oral arrangement concerning the Services provided by Company. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY END USER AT ANY TIME ARE HEREBY OBJECTED TO BY THE COMPANY, AND ANY SUCH DOCUMENTS SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE OR SERVICE RENDERED HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON COMPANY. No waiver or amendment to this contract or these terms and conditions shall be binding on the COMPANY unless made in writing expressly stating that it is such a waiver or amendment and signed by an Officer of the COMPANY.
- TERM. The term of this Agreement (“Term”) begins on the date that End User purchases Services and continues for the duration of the service period as defined by the service plan that is selected by End User (“Plan”). At the end of the current Term, the Term is automatically renewed unless End User provides the Company, prior to the end of the current Term, notification of intention to cancel the service. End User agrees to pay for Services for the duration of the Term. Expiration of the Term does not alleviate End User of responsibility for paying all unpaid, accrued charges due hereunder. If End User chooses to cancel the service before the end of the current Term, Disconnection fees may apply as set forth below.
- 911 & SERVICE LIMITATIONS. E911 emergency calling using VoIP Service provides a more limited form of E911 emergency calling than that available using traditional wireline E911 emergency calling.
- 911 ACKNOWLEDGEMENT AND WARNING LABELS. END USER ACKNOWLEDGES THAT THE COMPANY EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS IN THE SAME WAY THAT TRADITIONAL WIRELINE 911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION 3 AND END USER AGREES TO NOTIFY ANY POTENTIAL USER OF THE SERVICES, WHO MAY PLACE CALLS USING END USER’S SERVICES, OF THE 911 LIMITATIONS DESCRIBED HEREIN. THE COMPANY WILL PROVIDE END USER WITH WARNING LABELS REGARDING THE LIMITATIONS OR UNAVAILABILITY OF 911 EMERGENCY DIALING. END USER AGREES TO PLACE A LABEL ON AND/OR NEAR EACH TELEPHONE OR OTHER CUSTOMER PREMISE EQUIPMENT ON WHICH THE SERVICES MAY BE UTILIZED. IF ADDITIONAL LABELS ARE REQUIRED, END USER MAY REQUEST THEM FROM THE COMPANY. THE COMPANY WILL PROVIDE END USER WITH ADVISORY NOTICES REGARDING 911 EMERGENCY DIALING AND REQUEST ACKNOWLEDGMENTS FROM END USER. END USER AGREES TO RESPOND AND AFFIRMATIVELY ACKNOWLEDGE THAT THE COMPANY HAS ADVISED END USER OF THE CIRCUMSTANCES UNDER WHICH THE COMPANY E911 SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON TO TRADITIONAL 911 EMERGENCY DIALING. THE COMPANY ADVISES END USER TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
- ELECTRICAL POWER. END USER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
- INTERNET ACCESS. END USER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IF THERE IS AN INTERRUPTION OF END USER’S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE.
- NON-VOICE SYSTEMS. END USER ACKNOWLEDGES THAT THE SERVICES ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMS INCLUDING HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, AND ENTERTAINMENT OR SATELLITE TELEVISION SYSTEMS. END USER HAS NO CLAIM AGAINST THE COMPANY FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
- END USERS WHO SUBSCRIBE TO THE COMPANY E911 SERVICE WILL BE REQUIRED TO REGISTER THE PHYSICAL LOCATION OF THEIR EQUIPMENT (DTA OR VIDEOPHONE) WITH THE COMPANY, EITHER ON THE COMPANY WEBSITE OR BY CALLING CUSTOMER SERVICE, AND AGREE TO UPDATE THE LOCATION WHENEVER THE PHYSICAL LOCATION OF SERVICE CHANGES. END USER ACKNOWLEDGES THAT THE COMPANY’S ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER IS THE PHYSICAL LOCATION CURRENTLY REGISTERED FOR THE ACCOUNT. END USER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY THE COMPANY WILL BE BASED UPON THE PHYSICAL LOCATION PROVIDED TO THE COMPANY BY END USER. IN THE EVENT THAT THE PHYSICAL LOCATION HAS NOT BEEN UPDATED OR IS NOT COMPLETE, THE COMPANY MAY ATTEMPT TO ROUTE A 911 CALL BASED UPON THE BILL-TO OR SHIP-TO ADDRESSES ASSOCIATED WITH THE END USER’S ACCOUNT OR INITIAL ORDER.
- END USERS WHO SUBSCRIBE TO THE COMPANY’S E911 SERVICE WILL BE SUBJECT TO A MONTHLY E911 SERVICE CHARGE. THE MONTHLY E911 SERVICE FEE SHALL BE IN ADDITION TO THE APPLICABLE BUSINESS PLAN CHARGES FOR THE ASSOCIATED LINE. THE MONTHLY CHARGE FOR THE COMPANY’S E911 SERVICE IS ASSESSED ON A “PER-LINE” (THAT IS, PER PHONE NUMBER BASIS), AND WILL BE SET AT A LEVEL THAT REIMBURSES THE COMPANY FOR THE DIRECT COSTS IT INCURS IN PROVIDING THE COMPANY E911 SERVICE, INCLUDING EXPENSES THE COMPANY INCURS, EITHER DIRECTLY OR INDIRECTLY, IN THE FORM OF STATE, COUNTY OR MUNICIPAL E911 SURCHARGES, E911 AUTOMATIC LOCATION INFORMATION (ALI) DATABASE STORAGE, LINE INFORMATION DATABASE AND CALLER ID (LIDB/CNAM) EXPENSES, AND ANY OTHER TAXES OR SURCHARGES DIRECTLY OR INDIRECTLY ASSOCIATED WITH THE PROVISION OF SERVICES TO END USERS SUBSCRIBING TO THIS SERVICE. THE COMPANY RESERVES THE RIGHT TO ADJUST THE LEVEL OF CHARGES ASSOCIATED WITH THE PROVISION OF E911 SERVICES TO REFLECT INCREASES OR DECREASES IN THE COSTS IT INCURS. (SEE SECTION 11 REGARDING CHANGES TO THE AGREEMENT, SERVICES OR PLAN).
- END USER ALSO ACKNOWLEDGES THAT THE COMPANY E911 SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE. THESE CHARACTERISTICS MAY MAKE THE COMPANY E911 SERVICES UNSUITABLE FOR SOME END USERS. BECAUSE END USER CIRCUMSTANCES VARY WIDELY, END USERS SHOULD CAREFULLY EVALUATE THEIR OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO RELY SOLELY UPON THE COMPANY E911 SERVICE. END USER ACKNOWLEDGES THAT IT IS END USER’S RESPONSIBILITY TO DETERMINE THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET END USER’S EMERGENCY CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCY CALLS). THE FOLLOWING CHARACTERISTICS DISTINGUISH THE COMPANY E911 SERVICE FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE: ** THE COMPANY E911 SERVICE WILL NOT FUNCTION IF END USER’S DTA, PHONE OR VIDEOPHONE FAILS OR IS NOT CONFIGURED CORRECTLY OR IF END USER’S THE COMPANY SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGE, BROADBAND SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF BILLING OR OTHER ISSUES. IF THERE IS A POWER OUTAGE, END USER MAY BE REQUIRED TO RESET OR RECONFIGURE THE EQUIPMENT BEFORE BEING ABLE TO USE THE COMPANY SERVICE, INCLUDING FOR E911 PURPOSES. ** AFTER INITIAL ACTIVATION OF THE E911 SERVICE, AND FOLLOWING ANY CHANGE OF AND UPDATE TO END USER’S PHYSICAL LOCATION, THERE MAY BE SOME DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR. THIS INFORMATION IS TYPICALLY POPULATED INTO OUR DATABASE PRIOR TO SERVICE ACTIVATION, BUT NO GUARANTEE CAN BE MADE THAT THE AUTOMATIC NUMBER AND LOCATION INFORMATION WILL BE ACTIVATED WITHIN THIS SCHEDULE. ** THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING THE COMPANY E911 EMERGENCY SERVICE CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING THE COMPANY E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON COMPANY’S NETWORK, THERE IS A POSSIBILITY THAT THE COMPANY 911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIA TRADITIONAL, LEGACY, CIRCUIT-SWITCHED TELEPHONE NETWORKS. ** IF END USER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE THE COMPANY EQUIPMENT WILL BE LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE, THE COMPANY E911 COMMUNICATIONS MAY NOT BE DIRECTED TO THE CORRECT LOCAL EMERGENCY OPERATOR.
- END USER ACKNOWLEDGES AND UNDERSTANDS THAT THE COMPANY WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING THE COMPANY OR TO ACCESS AN EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT. END USER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO END USER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, END USER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO 911 DIALING.
- EQUIPMENT. To provide the Services, the Company may provide Equipment to End User. All Equipment shipments are F.O.B. the Company’s facility. The Company’s liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to End User upon delivery to carrier. End User will be extended any initial warranties and warranty periods provided by the original manufacturer and from the date of purchase or lease of Equipment or Service. End User shall be required to obtain authorization from the Company to return any Equipment. The Company will provide replacement Equipment only if the Equipment is deemed to be defective and covered under the warranty. The Company will not cover replacement for lost, stolen or modified equipment. Equipment returned by End User that is not covered under warranty may be refused by the Company, and End User will be responsible to pay return shipping charges.
- BILLING, CHARGES AND PAYMENT
- PAYMENT. Upon purchase of the Service, End User must provide the Company with a valid credit card number from an issuer that is accepted by the Company. End User authorizes the Company to charge the credit card number provided by End User (“Credit Card”) for all charges arising from End User’s use of the Services. End User agrees to notify the Company of any change to the credit card information including, but not limited to, changes in account number, expiration date or billing address. The Company shall not be responsible for any charges made by the Credit Card issuer to End User’s Credit Card account for exceeding credit limit, insufficient funds or other reasons. End User’s credit card will not be billed until product has shipped. Estimated ship dates are approximate and are not guaranteed. End User may cancel any order due to shipping delays without charge.
- CREDIT TERMS. All Services provided to End User and covered by the Agreement shall at all times be subject to credit approval or review by the Company. End User will provide such credit information or assurance as is requested by the Company at any time. The Company, in its sole discretion and judgment, may discontinue credit at any time without notice or require a deposit.
- BILLING. The Company will provide End User with a monthly on-line billing statement for the Services and bill all charges invoiced to End User’s account to the Credit Card. Such charges shall include activation fees, monthly service fees, shipping charges, disconnection fees, equipment charges, toll charges, taxes and any other applicable charges. Monthly service fees are paid in advance of each month’s service; toll charges and any other applicable charges are billed subsequent to the end of each month’s service. The Company reserves the right to charge the Credit Card for charges, due if at any time End User’s long distance cumulative charges for the current month exceed Fifty dollars ($50). Billing for monthly service fees commences upon purchase of the Services on the web site, and the first month’s monthly service fee shall be prorated to take into account any partial month that may occur as the result of the date monthly service fees are initiated.
- LATE/NON-PAYMENT. If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment or declined Credit Card charges, the Company may suspend or terminate the Services and all accrued charges shall be immediately due, plus a late fee of the lesser of 1.5% per month or the maximum allowed by law accrued from the date of invoice until payment in full is received by the Company. If charges cannot be processed to the Credit Card, End User will be charged a fee of Fifteen dollars ($15.00). The fee will also be charged to activate a suspended account. No suspension or termination of the Services or of this Agreement shall relieve End User from paying any amounts due hereunder.
- TAXES. Prices for the Services do not include any customs duties, sales, use, value added, excise, federal, state, local, public utility, universal service or other similar taxes. All such taxes shall be paid by End User and will be added to any amounts otherwise charged to End User unless End User provides the Company with an appropriate exemption certificate. If any amounts paid for the Services are refunded by the Company, applicable taxes may not be refundable. In the case where the equipment is not returned, the End User may be billed on a declining balance and each month for the remaining term of their End User Agreement.
- DISCONNECTION AND CONVERSION FEES. If an End User terminates a one (1) Year Term Plan prior to the end of the committed term, the Company will charge the End User the remaining services fees under the term plan agreement. . All fees, including service fees, payable under this term plan shall be non-refundable and non-creditable. Such fees shall be billed to End User’s Credit Card when End User notifies the Company of the termination or cancellation of the Services.
- RATE CHANGES.The Company may change the prices for the Services and toll charges from time to time. The Company may change prices, plans, taxes or fees without any advance notice.In the event of a change in prices or toll charges, the Company will post such changed rates to the web site currently located on the Company’s Web site.International toll calling rates are updated monthly on the first of each month and no other notice shall be provided for changes to international toll calling rates.
- CREDITS. End User acknowledges and agrees that the Services are provided “as is, where is.” Credit allowances for interruption of the Services shall not be provided.
- DISCOUNTS. From time to time in its sole discretion, the Company may offer promotions or discounts of activation or other fees. Any promotion or discount codes must be entered by End User upon purchase of the Services. End User shall not be entitled to a subsequent credit for such promotions or discounts, if not requested at the time of account creation or change of service.
- BILLING DISPUTES. End User must dispute any charges for the Services in writing within thirty (30) days of the date of the charge by or End User waives any objection and further recourse. Written statements disputing charges must be sent to: Billing Department VaxStream Corporation 5111 Ancient Stone Avenue Mississauga, Ontario, Canada, L5M 3A9 -or- Billing@vaxstream.com
- TOLL CHARGES. Every call to or from Equipment using the Services that originates or terminates in the Public Switched Telephone Network (“PSTN”), including other VoIP networks, is subject to the then applicable toll charges that are associated with the Plan. Calls to a phone number outside the United States and Canada will be charged at the current rates published on the Company’s web site. The duration of each call is to be calculated in one minute increments and rounded up to the nearest one minute increment for any fraction of minutes used. If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. If the computed charges for taxes and surcharges include a fraction of a cent, the fraction is rounded up to the nearest whole cent. When End User dials an International PSTN phone number, charges may apply regardless of whether the party on the other line answers the call. Calls made by an End User to an International mobile, rather than landline, or premium rate telephone number may result in higher toll charges.
- TELEPHONE NUMBER. Any telephone number provided by the Company (“Number”) to the End User shall be leased and not sold. End User is not to use the Number with any other device other than the Equipment without the express written permission of the Company. The Company reserves the right to change, cancel or move the Number at its sole discretion.
- PROHIBITED USES. Any use of the Services or any other action that causes a disruption in the network integrity of or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services at the sole discretion of the Company. End User understands that neither the Company nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. End User agrees that it will NOT use the Services in ways that violate laws, infringe the rights of others, or interfere with the users, services, or equipment of the network. End User agrees and represents that it is purchasing the Services and/or the Equipment for its own internal use only, and shall not resell, transfer or make a charge for the Services or the Equipment without the advance express written permission of the Company’s Service Plans for business End Users that offer unlimited minutes (“Unlimited Plan”) of calls are for reasonable business use of End User only. Such use shall not include certain activities including, but not limited to, any autodialing, continuous or extensive call forwarding, continuous connectivity, fax broadcast, fax blasting, tele-marketing (including without limitation charitable or political solicitation or polling), call center operations, junk faxing, fax spamming, calling/faxing any person (through the use of distribution lists or otherwise) who has not given specific permission to be included in such a process or any other activity that would be inconsistent with reasonable business usage. End User shall not transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. End Users further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. Any use found to be inconsistent with this restriction will result in termination of the Service. The Company reserves the right to immediately terminate or modify the Services of any End User using Unlimited Plan if the Company determines, in its sole discretion, that End User is not using the Unlimited Plan for End User’s reasonable business use.
- CHANGES TO THE AGREEMENT, SERVICES OR PLAN. The Company reserves the right to make changes to the terms and conditions of this Agreement, the Services and/or the Plan (“Change of Service”). In the event of a Change of Service, the Company will post to the Company’s Web Site. End User may request a Plan change at anytime, subject to any applicable change of service fee and additional terms and conditions. The Plan change will take effect in the first month after the Plan is changed. In no case will an activation fee be credited after thirty (30) days from the initial purchase of the Services for a Plan change or cancellation. For a Plan change to a plan that requires a purchase of the Equipment, an equipment charge will apply.
- NOTICE. Notice will be considered received by End Users and such changes will become binding to End Users, on the date the changes are posted to the Web Site (“Change Date”), and no additional notice will be required. If End User does not send the Company notification of their desire to terminate this agreement or uses the Service after the Change Date, End User is deemed to have accepted and consented to the change of terms and conditions of the Service. If End User does not consent to the change of service and terminates this agreement, End User will be responsible for any sums due hereunder in addition to any applicable Disconnection Fee. End User may request a Plan change at anytime, subject to any applicable change of service fee and additional terms and conditions. In no case will an activation fee be credited after thirty (30) days from the initial purchase of the Services for a Plan change or cancellation. For a Plan change to a plan that requires a purchase of the Equipment, an equipment charge will apply.
- TERMINATION. End User agrees to provide with thirty (30) days notice of termination. End User shall be responsible for the full monthly service fee for the month during which the notice of termination of service is provided to the Company. In accordance with section 5.6, Disconnection Fees may apply. the Company reserves the right, at its sole discretion, to suspend, terminate or change the Services without advanced notice for any reason, including without limitation, misuse of the Services in any way, End User’s breach of this Agreement, End User’s failure to pay any sum due hereunder, suspected fraud or other activity by End User that adversely affects the Services, the Company’s network or other End User’s use of the Services. The Company reserves the right to determine, at its sole discretion, what constitutes misuse of the Services and End User agrees that the Company’s determination is final and binding on End User. The Company may require an activation fee to change or resume a terminated or suspended account.
- PRIVACY. The Company utilizes the public Internet and third party networks to provide fax, voice and video communication services. Accordingly, the Company cannot guarantee the security of fax, voice and video communications of End User. The Company is committed to respecting an End User’s privacy. Once End User chooses to provide personally identifiable information, it will only be used in the context of the End User’s relationship with the Company will not sell, rent, or lease End Users’ personally identifiable information to others. Unless required by law or subpoena or if End User’s prior permission is obtained, the Company will only share the personal data End User provides with other The Company entities and/or business partners that are acting on the Company’s behalf to complete the activities described herein. Such the Company entities and/or national or international business partners are governed by the Company’s privacy policies with respect to the use of this data. The Company may be required to file reports with different administrative bodies. As such, the Company may provide aggregate statistics about customers, sales and traffic patterns. None of these reports or statistics will include personally identifiable information. However, the Company reserves the right to use personally identifiable information to investigate and help prevent potentially unlawful activity that threatens either the Company or any company affiliated with the Company. Moreover, upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, the Company may disclose personally identifiable information. For more details see the Company’s Web site.
- RETURNS AND ADJUSTMENTS. No Equipment may be returned by End User for any reason without prior approval of the Company. All returns shall be in original packaging or equivalent. End User shall be responsible for all costs related to shipping to the Company any Equipment that is being returned. Any Equipment returned to the Company without prior authorization for its return or proper packaging may be refused. In order to obtain an appropriate refund, upon cancellation End User must immediately obtain a return material authorization number from the Company, return to the Company any Equipment provided hereunder, undamaged and in good working condition, in its original packaging and with its original content or otherwise will be immediately responsible for paying to the Company an amount equal to the fair retail price of the equipment minus any payments End User had previously paid specifically for said Equipment.
- TECHNICAL SUPPORT. The Company provides technical support to End Users via telephone and e-mail for the Services and the Equipment provided hereunder. Support for other applications and uses is not provided or implied.
- BREACH. In the event of End User’s breach of the terms of the Agreement, including without limitation, failure to pay any sum due hereunder, End User shall reimburse the Company for all attorney, court, collection and other costs incurred by THE COMPANY in the enforcement of the Company’s rights hereunder and THE COMPANY may keep any deposits or other payments made by End User.
- INDEMNIFICATION. End User agrees to defend, indemnify and hold the Company, its affiliates and its vendors harmless from any claims or damages relating to this Agreement.
- DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL THE COMPANY OR ITS VENDORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE SERVICES OR PRODUCTS PROVIDED HEREUNDER WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF THE COMPANY OR ITS VENDORS OR OTHERWISE.
- WARRANTY AND LIABILITY LIMITATIONS. THE COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER THE COMPANY NOR ITS VENDORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO COMPANY’S OR END USER’S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF END USER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF COMPANY’S OR ITS VENDORS’ NEGLIGENCE. ANY CLAIM AGAINST THE COMPANY MUST BE MADE WITHIN 90 DAYS OF THE EVENT OF THE CLAIM OR 90 DAYS FROM THE TERMINATION OF SERVICE, WHICHEVER IS EARLIER AND THE COMPANY HAS NO LIABILITY THEREAFTER. THE COMPANY’S LIABILITY IS LIMITED TO REPAIR, REPLACEMENT, CREDIT OR REFUND. THE COMPANY MAY ELECT TO PROVIDE A REFUND IN LIEU OF CREDIT, REPLACEMENT OR REPAIR. ALL WARRANTIES COVER ONLY DEFECTS ARISING UNDER NORMAL USE AND DO NOT INCLUDE MALFUNCTIONS OR FAILURES RESULTING FROM MISUSE, ABUSE, NEGLECT, ALTERATION, MODIFICATION, IMPROPER INSTALLATION, OR REPAIRS BY ANYONE OTHER THAN THE COMPANY. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY HEREUNDER EXCEED THE AMOUNTS PAID BY END USER TO THE COMPANY IN THE PRIOR TWELVE (12) MONTHS FROM DATE OF CLAIM.
- EXPORT COMPLIANCE. End User agrees to comply with U. S. export laws concerning the transmission of technical data and other regulated materials via the Services. End User agrees to comply with applicable local, state and federal regulations governing the locality in which the Equipment and Services are used.
- PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE. Upon expiration, cancellation or termination of the Services, End User shall relinquish and discontinue use of any Numbers, voice mail access numbers and/or web portals assigned to End User by the Company or its vendors.
- SOFTWARE COPYRIGHT. Any software used by the Company to provide the Services and any software provided to End User in conjunction with providing the Services are protected by copyright law and international treaty provisions. End User may not copy the software or any portion of it.
- SURVIVAL. The provisions of section 3, 5, 15, 16, 17, 18, 19 21, 24 and 26 shall survive any termination of the Agreement.
- NOTICES. The Company communicates with End Users primarily via email. Notices to End User shall be sent to the email address specified by End User at the time of registration for the Services or as subsequently specified by End User (“Email Address”). End User is responsible for notifying the Company of any Email Address changes. End User agrees that sending a message to the Email Address is the agreed upon means of providing notification. Email is used to communicate important information about the Services, billing, changes to the Services and other information. The information is time-sensitive in nature. It is required that End User read any email sent to the Email Address in a timely manner in order to avoid any potential interruption in the Services provided hereunder.
- FORCE MAJEURE (EVENTS BEYOND OUR CONTROL). The Company shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties of THE COMPANY as may occur in spite of the Company’s best efforts.
- GOVERNING LAW / RESOLUTION OF DISPUTES.
- Mandatory Arbitration. This agreement to arbitrate also requires End User to arbitrate claims against other parties relating to Services or Products provided or billed to End User if Claims are asserted against THE COMPANY in the same proceeding. ARBITRATION WILL BE CONDUCTED UNDER THE COMPANY SELECTED ARBITRATION ASSOCIATION RULES. Should the COMPANY selected Arbitration Association have a fee schedule for arbitrations. End User will pay the published share of the arbitrator’s fees and administrative expenses (“Fees and Expenses”) End User and the Company agree to bear their own other fees, costs, and expenses, including those for any attorneys, experts, and witnesses.
- Pre-filing Notice of Claim. BEFORE INSTITUTING ARBITRATION OR SUIT, END USER AGREES TO PROVIDE THE COMPANY WITH AN OPPORTUNITY TO RESOLVE THE CLAIM BY SENDING A WRITTEN DESCRIPTION OF THE CLAIM TO THE COMPANY. IF THE COMPANY IS NOT ABLE TO RESOLVE THE CLAIM WITHIN 30 DAYS OF RECEIPT OF NOTICE, THEN END USER OR THE COMPANY MAY INITIATE ARBITRATION OR SUIT AS DESCRIBED IN SECTION 26.1. All claim notices should be sent to: Director of Customer Service VaxStream Corporation 5111 Ancient Stone Avenue Mississauga, Ontario, Canada, L5M 8A9
- Governing Law.The Agreement and the relationship between End User and the Company shall be governed by the laws of the Province of Ontario without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 26.1, End User and the Company agree to submit to the personal and exclusive jurisdiction of the courts within the Province of Ontario, to the extent possible in the Province of Ontario, and waive any objection as to venue or inconvenient forum. The failure of The Company to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. End User agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
- ENTIRE AGREEMENT. The terms and conditions of this Agreement, along with the rates posted to the Company web site, constitute the entire agreement with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to the Services. This agreement shall be binding upon the heirs, successors, and assigns of the Company and End User.
“Activation Date” means the date upon which Customer is provided the URL, login, and password to access the Hosted Services. “Agent” means a Customer employee or contractor who may use the Hosted Services, the total number of Agents being the maximum number of employees who may use the Hosted Services at any one time. “Agreement” means the Service Quote and any modifications thereto contained in a Service Quote addendum, these Terms and Conditions, all Exhibits, schedules and other attachments hereto, and any documents incorporated herein by reference, as the same may be amended by mutual written agreement of the parties. “Confidential Information” of a party means any confidential or proprietary knowledge, information, materials, or trade secrets in which such party has rights, disclosed to the other party, and which either party would reasonably expect or consider to be confidential or proprietary information, including but not limited to, information regarding business methods, products, services, finances, customers and potential customers, suppliers, pricing and rates, costs, expenses, marketing, technologies, properties, specifications, personnel, or organization, in various media, including but not limited to, oral, written, and electronic data form. “The Company Software” means any proprietary software (including any documentation relating to such software) owned by, licensed by, or which the Company has a right to license under this Agreement, which software is either provided to Customer under this Agreement or is used in or used to provide the Hosted Services. “Customer Data” means any data, information or other materials of any nature whatsoever provided to the Company by Customer in the course of implementing or using the Hosted Service. “Documentation” means user manuals and other documentation relating to the Hosted Services, which are made available to Customer by the Company, in the form of recorded documentation on optical or magnetic media, accessible via the Internet or in the form of printed media. “Effective Date” means the date the terms and Conditions of this Agreement go into effect, and is the earlier of the Activation Date or thirty (30) days from the date of signature of the Service Quote. “Hosted Services” means the services that are being provided to Customer as described in the Service Quote, including any Additional Services set forth in a Service Quote Addendum accepted by the Company. “Implementation Services” means the services selected by Customer, as indicated on the Service Quote, to be provided by the Company in connection with the set up and implementation of the Hosted Services.
As part of the Implementation Services, Customer will receive limited training in the set up and activation of the Hosted Services during the hours from 8:00am to 5:00pm PT Monday through Friday. “Initial Payment” means the initial payment set forth in the Service Quote consisting of the fees for Implementation Services and the Service Fees for the first month. “Login” means each separate, named individual login account within a Tenant established for Customer which login account has access to the Hosted Services. “Service Fees” means the fees set forth in the Service Quote to be paid by Customer to the Company as consideration for the Company’s provision to Customer of the Hosted Services. “Service Quote” means the document executed by Customer and The Company, containing (i) a price quotation for Hosted Services, and Implementation Services to be provided to Customer by the Company under the Agreement, along with associated telecommunications fees, (ii) the number of Agents, Tenants and Logins to be provided under the Agreement; (iii) the Term Length; (iv) the Hosted Services to be provided; and (iv) such other options provided on the Service Quote as Customer may elect to apply to the Hosted Services. “Term” shall have the meaning set forth in Section 2 of this Agreement.