SmartReach Long Distance Service-
Agreement and Terms and Conditions of Use
- Parties and Subject Matter
This is an Agreement between 1429481 Ontario Inc. o/a SmartReach Long Distance Service and the person who has signed up to receive long distance voice service from SmartReach ("Customer"). The Agreement applies to the Customer's use of SmartReach long distance service ("Service") on a month to month basis. "This Agreement" means these long distance terms, any terms stated on SmartReach web site from time to time or the Customer's bill, and the prices, discount rates and other terms applicable to the Services, of which SmartReach notifies the Customer.
- Use of the Service
The Customer agrees to use the Service only for lawful personal purposes and shall not use the Services for any purpose which may be construed to be a nuisance. The Service may not be resold to others without the express written permission of SmartReach.
- Customer responsibility for all Charges
The Customer shall pay the charges for use of Services billed to the Customer’s account, regardless of who used the Services, or the location of the person whose use of the Services resulted in such charges, or the method used to access the Services, and shall pay for all goods and services, sales and other taxes applicable to the use of the Services. The Customer is responsible for paying all charges for the Services, including for all calls and services: (i) made via your telephones or telecommunications systems; (ii) made using any number or authorization (PIN) code assigned to you, including any calling card number or any other personal identification number assigned to you or selected by you; (iii) which are charged to your account, whether or not such use of the Service was with the Customer’s consent or knowledge. By providing Credit Card information for payment of the Service fees to SmartReach, the Customer expressly authorizes SmartReach to charge the Customer’s
Credit Card (and any replacement Credit Card) and to collect any outstanding amounts owing or fees owed by the Customer to SmartReach. It is the Customer’s responsibility to ensure that the billing information provided to SmartReach, including Customer’s address and Credit Card or other billing information, remains current at all times. Customer agrees to notify SmartReach of any changes to Customer’s billing information forthwith.
- Date of Payment
All charges relating to the Service are due and payable, by credit card, immediately after the call is completed or after online confirmation. Call timing will be determined conclusively by Pathway’s network systems.
- Immediate Payment
Pathway requires that the Customer pay any and all charges immediately, if Pathway considers there to be a substantial likelihood of loss. Upon demand, such charges shall become due and payable.
- Disputed Charges
If the Customer disputes any charges, the Customer will first pay the all such charges and then inform SmartReach in writing, of any disputed charges before the required date. Failure by the Customer to bring bill disputes to SmartReach attention via email or in writing, within thirty (30) days of the date of the Customer's bill shall be deemed to be acceptance by the Customer of the accuracy of the bill.
SmartReach reserves the right to require a deposit from the Customer. Such deposits will earn no interest during the period such deposit is held by SmartReach. SmartReach may apply any portion of the deposit against any of the Customer's unpaid charges and will return the unused balance of the deposit to the Customer.
- Suspension or Termination
SmartReach will be entitled to terminate the Agreement and/or suspend the Services with no refunds to the Customer whatsoever, if SmartReach discovers that: (i) the Customer's Credit Card is invalid; (ii) processing of the Service Fee via a Credit Card offered by the Customer is not authorised by the processing Financial Institution; (iii) the Customer has revoked SmartReach authorization to make Credit Card withdrawals; (iv) SmartReach cannot reach the Customer to obtain, confirm, revalidate or update information required to process the Customer's Credit Card. Upon termination or suspension of the Services, Customer will become liable for all applicable termination and other Fees.
SmartReach may, in its sole discretion, immediately suspend or terminate Customer's use of Services if:
- the Customer is in default of any material term of this Agreement, including the obligation to pay charges;
- Processing of the Service Fee via a Credit Card offered by the Customer is not authorised by the processing Financial Institution;
- the Customer is in default of any other term of this Agreement;
- the Customer becomes bankrupt or insolvent or, if the Customer is a company, it has a receiver or receiver-manager appointed to govern its affairs;
- in the opinion of SmartReach, there is a reasonable likelihood of the Customer's Service account being used for fraudulent purposes;
- the Customer's use of the Service is excessive and not consistent with normal patterns of use by a residential or business Customer.
- Customer Equipment
The Customer is responsible for any and all disruptions and damage caused by equipment, software and services not provided by SmartReach ("Non-SmartReach Products") to:
- SmartReach' network and equipment; and
- Services provided by SmartReach to the Customer and to other persons.
SmartReach does not guarantee that its equipment or network is or will remain compatible with any Non-SmartReach Products. SmartReach is not liable for any changes in SmartReach equipment, network or Services, which cause Non-SmartReach Products to become obsolete or to require modification or alteration, or which affect the performance of Non-SmartReach Products.
- Limitation of Liability
SmartReach will not be responsible for failing to provide Service or meet obligations, including disruption to the Service caused by SmartReach network failures or the failure of the networks of other companies to which SmartReach network is interconnected. Specifically, SmartReach will not be responsible for any or all interruption of Services (whether due to utility service breakdown, excessive customers, mechanical breakdown or other reasons) and the Customer will not be entitled to any refund for any temporary interruptions.
SmartReach will provide the Service using currently available technology and will avoid using any system, hardware, software or methods known to threaten Customer security. Beyond that, SmartReach makes no warranties of any kind, whether expressed or implied, in relation to the accessibility, accuracy, reliability, safety or quality of the Services. To the extent permitted by applicable law, SmartReach makes no express or implied representations, warranties or conditions of any kind whatsoever, including but not limited to warranties of title or non-infringement, or implied warranties or conditions of merchantability or fitness for a particular purpose, with regard to the service, hardware, software or any other services or deliverables provided hereunder and all representations, warranties, or conditions of any kind, express or implied are, to the extent permitted by applicable law, hereby excluded.
SmartReach has no responsibility for any damage suffered by any person, organisation, group or entity due to loss of communication, delay, non-delivery or service interruptions in using the Service, whether or not caused by the negligence, errors or omissions of SmartReach or those for whom it is responsible at law. SmartReach exercises no control and has no responsibility whatsoever over the traffic or data passing through the Services. Use of any Service is at the Customer's sole risk and Customer assumes full responsibility for the accuracy, reliability, quality or effect of information received through the Service.
In the event of any breach by SmartReach, its affiliates, suppliers, employees or agents, including any breach of a fundamental term or any negligence, the Customer's exclusive remedy shall be to receive from SmartReach, payment for actual and direct damages to a maximum amount not exceeding the bills for seven days of Service. Other than the foregoing remedy, under no circumstances shall SmartReach, its affiliates or its agents be liable to the Customer or any third party for special, exemplary, punitive indirect or consequential damages including, but not limited to, damages arising out of loss of data, loss of income, loss of profit or failure to realize expected savings, even if SmartReach had been advised of, had knowledge of, or reasonably could have foreseen, the possibility of such damages. This "Limitation of Liability" section applies regardless of the basis on which the Customer is entitled to claim damages from SmartReach, including but not limited to:
- breach of contract even if a fundamental breach; or
- tort, including negligence and misrepresentation.
- Amendments Communication and Notices
If there is a material increase in the cost of providing the Service (such as, by way of example, an increase in the cost of termination or telephone charges) SmartReach may increase the charges for the Service immediately and the Customer shall pay the increased fees from and after the effective date of the increase. Pricing and discount rates are subject to change without notice to the Customer and SmartReach may, without notice, change the terms of the Service. The most current rates and Service terms applicable will be posted on the SmartReach website http://www.pathcom.com and it will be the Customer's sole responsibility to check these rates and terms from time to time in order to remain current with them. The Customer's continued use of the Services will be deemed to be acceptance of SmartReach' amendments of the rates or Service terms.
All direct communications and notices between SmartReach and the Customer will be conducted through E-mail or over the telephone, unless otherwise agreed to by SmartReach. All such communications and notices will be deemed received by the Customer three days after being sent by E-mail by SmartReach. The Customer specifically agrees that SmartReach has no obligation to send any other notice to the Customer, even in the event of default. All notices from the Customer, such as for disputes or termination of Services, will be effective only if presented to, and received by, SmartReach in writing or via E-mail. Such notices sent to SmartReach by the Customer must be confirmed by return E-mail by SmartReach, to be effective. If the customer decides to makes a change to the telephone number to be used with the Service, it is the Customer's sole responsibility to register the new number(s) on the SmartReach system for provision of Service, and to remove such previous number(s) from the system.
- Confidentiality of information
Unless the Customer provides express consent or disclosure is pursuant to a legal power, all information kept by SmartReach regarding the Customer, other than the Customer's name, address and listed telephone number, is confidential and may not be disclosed by SmartReach to anyone other than: the Customer; a person who, in the reasonable judgment of SmartReach is seeking the information as an agent of the Customer; another telephone company, provided the information is required for the efficient and cost-effective provision of telephone service and disclosure is made on a confidential basis with the information to be used only for that purpose; a company involved in supplying the Customer with telephone or telephone directory related services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose; an agent retained by SmartReach to evaluate the Customer's creditworthiness or collect the Customer's
account, provided the information is required for and is to be used only for that purpose; or to a public authority or agent of a public authority, if in the reasonable judgment of SmartReach it appears that there is imminent danger to life or property which could be avoided or minimized by disclosure of the information. Express consent may be taken to be given by the Customer where the Customer provides written consent, oral confirmation verified by an independent third party, electronic confirmation through the use of a toll-free number, or electronic confirmation via the Internet.
- General Provisions
The Agreement expresses the entire understanding between the Customer and SmartReach and replaces any and all former Agreements, understanding, offers and representations relating to SmartReach performance in connection with this Agreement and contains all of the terms, conditions, understandings, representations and promises between the Customer and SmartReach. Any provision of this Agreement that is unenforceable at law will be ineffective to the extent of such unenforceability without invalidating the remaining provisions of this Agreement. No failure by SmartReach to exercise any right under this Agreement or to insist upon full compliance by the Customer with its obligations under this Agreement will constitute a waiver of any provision of this Agreement.
SmartReach may assign this Agreement in whole or in part without consent of the Customer.
This Agreement shall be governed by the laws of the Province of Ontario and the Customer and SmartReach irrevocably agree to the exclusive jurisdiction of the courts of Ontario at Toronto.