Terms and Condition of Use
IMPORTANT- READ CAREFULLY: CUSTOMER'S USE OF
THIS WEBSITE AND THE SERVICES ARE CONDITIONED UPON CUSTOMER'S
COMPLIANCE AND ACCEPTANCE OF THIS AGREEMENT. IF CUSTOMER DOES NOT
AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES.
CUSTOMER IS ENCOURAGED TO PRINT OR DOWNLOAD THESE TERMS AND
CONDITIONS AND SAVE THEM FOR CUSTOMER'S RECORDS.
This Agreement (the "Agreement") is between the individual or
legal entity using, purchasing or opening an account for Services
("Customer") and the Olatel related entity which invoices Customer
for the Services ("Olatel"). Please read this Agreement carefully
before installing, accessing, or otherwise using the Services. By
installing, accessing, or otherwise using Services, Customer agrees
to be bound by this Agreement. Please maintain a copy for
Customer's records. If Customer does not agree with the terms of
this Agreement, do not use the Services.
Service Description
This Agreement governs the purchase and use of IPTelephony
(VOIP), Toll- Free, Call Center services and related products and
services of Olatel ("Olatel Services") and its third party
suppliers ("Third Party Services") (the Olatel Services and Third
Party Services are referred to collectively as the "Services").
Olatel may alter, expand, or reduce the features of the Services
from time to time without notice to Customer. Customer agrees that
Olatel's obligation to provide Services is conditioned upon
Customer providing all information and assistance reasonably
required to perform the Services and Customer hereby agrees to
timely provide all such information and assistance. Olatel reserves
the right to reclaim any dial-in numbers at any time. Customer
acknowledges that not all Services can be guaranteed from all
locations including, but not limited to via mobile telephones, pay
phones or satellite phones due to various in-country, carrier or
other restrictions.
Term
The Term of this Agreement or any Order Form shall remain in
effect until terminated in accordance with the provisions of this
Agreement (the "Term").
Termination of the Agreement
Either Customer or Olatel may terminate this Agreement at any
time for convenience upon written notice to the other party;
provided that the term of each Order Form, if any, shall be
governed by such Order Form and shall continue for the term of the
Order Form notwithstanding any termination of this Agreement. The
termination of any Order Form shall not otherwise effect the Term
of this Agreement or any other Order Form.
Termination For Cause
This Agreement or any Order Form may be terminated by the non
breaching party upon a material breach by the other party of a
material provision of this Agreement or the relevant Order Form and
such breach is not cured within sixty (60) days after written
notice or within ten (10) days after written notice if the breach
is a payment breach.
Effect of Termination
The termination of any Order Form shall not otherwise effect the
Term of this Agreement or any other Order Form. If Customer
terminates any Order Form for cause: (a) Customer will pay for all
Services rendered up to the date of termination; (b), Olatel will
reimburse Customer for any amounts prepaid by Customer for Services
not rendered; and (c) Customer shall be relieved of any future
payments due under such Order Form. Otherwise, upon any termination
of this Agreement or any Order Form, Customer shall pay for: (a)
all Services rendered up to the date of termination; and (b) any
minimum shortfall or future amounts due under this Agreement and
any Order Form including the current renewal thereof, if
applicable. All use of Services after termination shall be billed
at standard rates.
Payments, Rates, Charges and
Taxes
Payments and Charges
Olatel will invoice Customer electronically free of charge or
via paper invoice for a fee. Customer agrees to make payment for
all Services upon receipt of invoice, or such later date if
specified on the invoice, to the location and in the manner
directed on the invoice. Invoices not paid on a timely basis will
be subject to interest or late fees in accordance with the
Customer's location or the maximum legally allowable interest rate,
whichever is lower. Customer must notify Olatel of any disputed
charges within thirty (30) days from the date of the invoice,
otherwise Customer will be deemed to agree to such charges and
Olatel will not be subject to making adjustments to charges or
invoices. Customer acknowledges and agrees, that: (1) unless
indicated otherwise, Services are charged by multiplying all
inbound or outbound legs of all calls by the applicable per minute
rate; (2) Service rates specifically negotiated by Customer and
agreed to by Olatel as indicated on Olatel's invoices to Customer
shall be deemed "Negotiated Rates;" (3) Services that are not
subject to Negotiated Rates, including call legs to or from a
location outside the host country and all taxes, fees, and
surcharges, will be charged at Olatel's standard rates ("Standard
Rates"); (4) Customer may obtain Olatel's Standard Rates through
Customer's sales or account representative or in some cases through
Customer's web account.
Price Changes
PRICE CHANGES. CUSTOMER ACKNOWLEDGES AND AGREES THAT STANDARD
RATES ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT OLATEL PROVIDING
SPECIFIC NOTICE TO CUSTOMER BY OLATEL POSTING NEW STANDARD RATES.
CUSTOMER THEREFORE AGREES TO CHECK OLATEL'S STANDARD RATES FROM
TIME TO TIME AND IN EACH CASE PRIOR TO USING ANY SERVICES SUBJECT
TO STANDARD RATES. NEGOTIATED RATES FOR ANY SERVICE, FEATURE OR FEE
(INCLUDING WAIVERS THEREOF) ARE SUBJECT TO CHANGE AT ANY TIME ON
THIRTY (30) DAYS PRIOR WRITTEN NOTICE TO CUSTOMER OR AT ANY TIME AS
TO A SPECIFIC SERVICE WITHOUT PRIOR NOTICE TO CUSTOMER IN THE EVENT
SUCH SERVICE REMAINS DORMANT (I.E.,IS NOT USED) FOR A PERIOD OF
TWELVE MONTHS OR LONGER. CUSTOMER AGREES THAT EITHER OR BOTH OF
NEGOTIATED RATES AND STANDARD RATES MAY BE INCREASED BY OLATEL BY
15% (ROUNDED UP TO THE NEXT FULL CENT) EACH YEAR WITHOUT PRIOR
NOTICE TO CUSTOMER. IN LIGHT OF THE PRICE CHANGING POLICIES HEREIN,
CUSTOMER THEREFORE AGREES TO CAREFULLY REVIEW EACH INVOICE PRIOR TO
MAKING PAYMENT AND TO NOTIFY OLATEL OF ANY RATE DISPUTES WITHIN
THIRTY (30) DAYS FROM THE DATE OF THE INVOICE, OTHERWISE CUSTOMER
WILL BE DEEMED TO AGREE TO SUCH RATES AND TO HAVE WAIVED ANY RIGHTS
TO DISPUTE THEM IF NOT RAISED WITHIN THIRTY (30) DAYS FROM THE DATE
OF THE INVOICE.
Unpaid Charges
In the event charges due are not timely paid in full for any
reason, Olatel shall have the right to suspend all or any portion
of the Services until such time as all charges and applicable
interest amounts and/or late fees have been paid. In addition, if
any outstanding invoice has not been paid in full within 60 days of
the date due, Olatel may (i) increase the per minute or per use
charge for any service by up to 15% (rounded up to the next full
cent) beginning with Customer's usage on the 61st day in which the
invoice was due; and (ii) charges and features that may have been
waived in the past will no longer be waived, both of which may be
done without any further notice. The new rates, if applied by
Olatel, will continue in effect until a written agreement expressly
lowering such rate is executed by an authorized representative of
each party. This rate increase is in addition to any and all other
rate increases allowed pursuant to these terms and conditions.
Following such payment, Olatel may reinstate Services only upon
satisfactory assurance of Customer's ability to pay for Services,
including modified payment terms such as prepayment and/or
accelerated invoicing. Such suspension shall not relieve Customer
of any payment liability. Customer agrees to reimburse Olatel for
any costs, expenses, or fees expended by Olatel in connection with
any collection efforts against Customer, including reasonable
internal and outside attorneys' fees.
Taxes, Fees and Surcharges
In addition to the rates for the Services, Customer shall pay
all applicable fees, duties, tolls, administrative assessments,
surcharges, or taxes now or hereafter attributable to the Services
and included on Customer's invoice.
License
Subject to Customer's compliance with the terms and conditions
of this Agreement, Olatel hereby grants Customer a non-exclusive
license during the applicable Term to use the Services. Except as
specifically set forth herein, Olatel or its suppliers retain all
right, title, and interest, including all intellectual property
rights, relating to or embodied in the Services, including without
limitation all technology, telephone numbers, web addresses,
software, or systems relating to the Services. Customer agrees not
to reverse engineer, decompile, disassemble, translate, or attempt
to learn the source code of any software related to the Services.
Customer agrees that use of Third Party Services is subject to the
license agreement of such provider. Other than using the Services
for conferences or meetings in which Customer are an active
participant, Customer may not resell the Services or otherwise
generate income from the Services.
Responsibility for Customer's Accounts
Customer is responsible for maintaining the confidentiality of
Customer's accounts, owner numbers, conference codes, passwords and
personal identification numbers used in conjunction with the
Services and for all uses of the Services in association with
Customer's accounts whether or not authorized by Customer. Olatel
does not sell products or services for children. Customer will not
allow children under 18 to use the Services without the involvement
of a parent or guardian. Customer agrees to immediately notify
Olatel of any unauthorized use of Customer's account of which
Customer become aware.
Responsibility for Communications
Customer is the sole owner of content and solely responsible for
the content of all communications (visual, written or audible)
using Customer's accounts. Customer shall comply with all laws
while using the Services; shall not transmit any communication that
violates any law, court order, or regulation; shall not violate any
third party rights in using the Services; and shall not use the
Services in any way that damages Olatel's property or interferes
with or disrupts Olatel's system or other users. Although Olatel is
not responsible for any such communications, Olatel may suspend any
such communications of which Olatel is made aware. Use of
conference recording or taping any use of the Services by Customer
may subject Customer to laws or regulations and Customer is solely
responsible for and obligated to provide any required notification
to participants prior to commencement of said conference. Customer
acknowledges and agrees that Olatel has not and is not expected to
provide Customer with any analysis, interpretation or advice
regarding Customer's compliance with the above and does not control
Customer's content nor guarantee the accuracy, integrity, security
or quality of Customer's content.
Privacy and Data Use
The information Olatel holds about Customer will be used to
provide the Services and for identification, account
administration, analysis and fraud/loss prevention purposes. Each
party will comply with all applicable personal data protection and
privacy laws where such party is located (the "Data Protection
Laws"). The parties acknowledge and agree that: (i) Olatel may have
access to personal data under the Data Protection Laws and will:
(a) use it solely for the purpose of providing the Services; (b)
process it only in accordance with Customer's instructions; and (c)
take appropriate technical and organizational measures to prevent
unauthorized or unlawful processing, accidental loss, destruction
or damage to it; (ii) personal data may be processed by Olatel and
its affiliates throughout the world; and (iii) Customer is the data
controller and retains full responsibility for the data processed
on its behalf by Olatel acting as data processor. More details
about how that information is used can be found in Olatel's privacy
policy which governs Customer's visit to Olatel's Website and use
of the Services. Copies are also available from us by post, by
contacting customer service.
Limited Warranty
ALL SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND
WITHOUT ANY WARRANTY. CUSTOMER UNDERSTANDS AND AGREES THAT OLATEL'S
SERVICES AND THE WEBSITE ARE PROVIDED "AS IS" AND "AS AVAILABLE".
OLATEL AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT. OLATEL MAKES NO WARRANTY OR REPRESENTATION
REGARDING ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED
THROUGH OLATEL'S SERVICES OR WEBSITES, OR THAT THE SERVICES WILL
MEET ANY OF CUSTOMER'S REQUIREMENTS, OR BE UNITERRUPTED, TIMELY,
SECURE OR ERROR FREE. USE OF THE SERVICES AND WEBSITE ARE AT
CUSTOMER'S SOLE RISK. OLATEL IS NOT LIABLE FOR ACTS OR OMISSIONS OF
OTHER SERVICE PROVIDERS, FOR INFORMATION OR CONTENT OF
COMMUNICATIONS, THIRD PARTY SERVICES, EQUIPMENT FAILURE OR
MODIFICATION, OR CAUSES BEYOND OLATEL'S REASONABLE CONTROL.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT
WILL OLATEL, OR ITS SUPPLIERS OR THEIR AFFILIATES, BE LIABLE FOR
ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL
ORINCIDENTAL DAMAGES WHATSOEVER OR LOSS OF GOODWILL, DATA OR
PROFITS, OR COST OF COVER ARISING OUT OF, OR RESULTING FROM THE
SERVICES, THIS AGREEMENT OR ANY ORDER FORM REGARDLESS OF THE LEGAL
THEORY OF RECOVERY, EVEN IF OLATEL HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGES THAT ARE REQUIRED
BY LAW TO BE PAID, CUSTOMER AGREES THAT ALL DAMAGES ARE EXCLUDED
EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY
CUSTOMER IN REASONABLE RELIANCE, UP TO THE LESSER OF THE AMOUNT OF
A REFUND OF THE PRICE THAT CUSTOMER ACTUALLY PAID FOR THE SERVICES
DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FILING OF SUCH
CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT,
WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL
THEORY) OR ONE THOUSAND DOLLARS (US$1,000).
Indemnification
Customer shall indemnify, defend and hold Olatel, its suppliers,
their affiliates and their officers, directors, employees (the
"Olatel Indemnitees") harmless from any and all claims, actions,
suits, proceedings, costs, expenses, damages and liabilities,
including reasonable attorneys' fees, which arise out of or relate
to: (1) Customer's use of the Services (including without
limitation, any person accessing the Services using Customer's
account); (2) any actual or alleged violation of this Agreement,
any Order Form or any applicable law, rule or regulation by
Customer or any person accessing the Services using Customer's
account; (3) or any actual or alleged infringement or violation by
Customer or any person accessing the Services using Customer's
account of any intellectual property or privacy or other right of
any person or entity.
Confidentiality
Olatel and Customer agree to use commercially reasonable efforts
to protect from unauthorized disclosure Confidential Information of
the other party. Confidential Information shall mean information
that derives economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from its
disclosure or use and marked as Confidential ("Confidential
Information"). The parties agree that Confidential Information may
be disclosed to employees, affiliates, suppliers or advisors on a
need-to-know basis and who agree to be bound by confidentiality
terms and conditions at least as stringent as those herein. This
confidentiality obligation shall not apply to any information (i)
independently developed by a party, (ii) generally available to the
public other than by a party's breach of this Agreement, (iii)
already known by a party at time of disclosure to that party, or
(iv) rightfully received from a third party without restriction on
disclosure or an obligation of confidentiality running directly or
indirectly to the other party. Nothing shall prevent or prohibit
the receiving party from providing access to Confidential
Information as may be required by law, rule or regulation.
Notwithstanding the foregoing, the parties acknowledge that
Recipient shall not be required to return to Discloser or destroy
those copies of Information residing on Recipient's backup,
disaster recovery or business continuity systems and the
obligations hereunder with respect to such Information shall
survive until such Information is destroyed.
Export and Import Control Laws and
Regulations
Customer agrees not to export or re-export the Services or any
related software in any form in violation of the export laws of
Canada or any foreign jurisdiction.
Message delivery Services
If Customer uses Services to send fax, email, phone, text, SMS,
or other messages ("Messages") to any recipients (the "Recipients")
as a condition for using such Services, Customer represents and
warrants that a) that Customer will not make any automated outdials
to induce the purchase of goods or services or to solicit a
charitable contribution; and (b) Customer has the legal right to
send all Messages to the Recipients (including obtaining any
required consents from the Recipients) and the content timing and
purpose of all Messages, campaigns and programs are in compliance
with all applicable laws, rules and regulations including those
with respect to timing, content, do not call lists and: the
following laws of the United Sates: TCPA 47 USC 227; CANSPAM Pub.
L. No. 108-187; and TSR 16 CFR 310; the following laws of Canada:
the Canadian Radio-television and Telecommunications Commission
concerning telemarketing and unsolicited faxes, Personal
Information Protection and Electronic Documents Act; and from the
following laws of the United Kingdom: the UK Privacy and Electronic
Communications Regulations 2003. Customer further acknowledges that
Customer is the sender of all Messages and Olatel is acting at
Customer's direction as the broadcaster of the Messages. Olatel
does not provide content and Customer shall be solely responsible
for all content of the Messages and for providing any list of
names, numbers or addresses for Olatel to utilize in sending
Messages.
Enforceability/Waiver
If any part of this Agreement is determined to be invalid or
unenforceable, then such invalid or unenforceable provision will be
deemed superseded by a valid, enforceable provision that most
closely matches the intent of the original provision and the
allocation of risks, and the remainder of the Agreement will
continue in effect. If any provision(s) is found to be contrary to
law, then such provision(s) will be construed, as nearly as
possible, to reflect the intentions of the parties with the other
provisions remaining in full force and effect. Olatel's failure to
exercise or enforce any right or provision of this Agreement will
not constitute a waiver of such right or provision unless agreed to
by Olatel in a non-electronic writing manually signed by a duly
authorized representative of Olatel. If there is any law, rule,
regulation or policy that causes Olatel to be regulated or that
causes the Agreement or Services to be in conflict with such law,
rule, regulation or policy, Olatel may terminate or modify the
affected Services without liability.
Miscellaneous
Except as otherwise expressly provided herein, all remedies
provided for in this Agreement shall be cumulative and in addition
to and not in lieu of any other remedies available to either party
at law, in equity, or otherwise. Customer acknowledges that Olatel
is an independent contractor, and no agency, partnership, joint
venture, employee-employer or franchisor-franchisee relationship is
intended or created by this Agreement. This Agreement is for the
sole benefit of Olatel and its affiliates and Customer and is not
intended to, nor shall it be construed to, create any right or
confer any benefit on any other party. The parties do not intend
that this Agreement will be enforceable by virtue of the Contracts
(Rights of Third Parties) Act 1999 by any person not a party to
this Agreement. The parties confirm that they wish to have this
Agreement written in English only. Les Parties aux présentes
confirment leur volonté que cette Convention soit rédigée en langue
anglaise seulement. Customer authorizes Olatel's monitoring
including recording of calls for the purposes of quality assurance
and Customer further consent to Olatel's use of automatic dialing
equipment to contact Customer. Olatel's performance of the Services
is subject to existing laws and legal process, and nothing
contained in this Agreement or any Order Form is in derogation of
Olatel's right to comply with governmental, judicial and law
enforcement requests or requirements relating to Customer's use of
Olatel's Website, the Services or information provided to or
gathered by Olatel with respect to such use. Customer may not
assign this Agreement or any Order Form to any other person or
entity without Olatel's prior written approval, but nothing
restricts Olatel's ability to assign this Agreement or any Order
Form or subcontract the Services hereunder.
Governing Law; Exclusive Forum;
Jurisdiction
If Customer is incorporated or registered in, or if not
incorporated or registered, resides in North, Central or South
America or any other region of the world not mentioned above, this
Agreement shall be governed and construed by the laws of Calgary,
Alberta Canada and Customer irrevocably agrees and
consents to the exclusive jurisdiction and venue of the courts
sitting in Calgary, Alberta Canada with respect to any dispute,
controversy or claim arising out of or relating to this Agreement
or any Services provided by Olatel.
Customer agrees to service of process by mail directed to
Customer's billing address. Customer waive all defenses including
but not limited to sovereign immunity, lack of personal
jurisdiction and forum non conveniens and expressly waive any right
to bring suit or have any action heard in Customer's local courts.
Customer agrees that any claim or cause of action arising out of or
related to this Agreement must be commenced by Customer within one
(1) year after the cause of action arose.
Force Majeure
Olatel will not be responsible for delays and/or defaults in its
performance due to causes beyond its reasonable control, including,
but without limiting the generality of the foregoing; acts of
terrorism, wars, hostilities, revolutions, riots, civil commotion,
national emergency, fire or explosion, flood, force of nature,
embargoes, accidents, acts of God, or stability or availability of
the Internet, the elements; telecommunication system failure;
technology attacks, epidemic; quarantine; viruses; strike;
lockouts; disputes with workmen or their labor disturbances; total
or partial failure of transportation, utilities, delivery
facilities, or supplies; acts or request of any governmental
authority; or any other cause beyond Olatel's control, whether or
not similar to the foregoing.
Entire Agreement
This Agreement in addition to Order Forms, if any, executed by
the parties (each an "Order Form") constitute the entire agreement
between Olatel and Customer with respect to the Services and
supersedes all prior or contemporaneous communications and
proposals, representations, promises, or agreements, whether
electronic, oral, or non-electronic, between Olatel and Customer
regarding them. Customer agrees that any terms or conditions
contained in any document, including but not limited to a purchase
order, acknowledgement, email, or other document that Customer may
now or later provide to Olatel, will have no effect and that this
Agreement is the only contract between Olatel and Customer
regarding the Services and may only be amended as set forth herein.
The application of the United Nations Convention on the
International Sale of Goods is hereby expressly excluded. A printed
version of this Agreement and of any notice given to Customer in
electronic form will be admissible in judicial or administrative
proceedings based upon or relating to this Agreement to the same
extent and subject to the same conditions as other business
documents and records originally generated and maintained in
printed form.
Notices
Notices from Olatel to Customer under this Agreement may be sent
by mail, email, fax or other electronic media and will be
considered given upon delivery to the physical address, fax number,
email address or other contact information provided by Customer for
billing or account management purposes. Notices to Olatel must be
sent to the address mentioned in Olatel's invoice to Customer with
a courtesy copy to 30 Baywater Cape S.W. Airdrie Alberta CANADA
Attn: Legal Department; Email: legal@Olatel.com. All notices
shall be in English.
Modification
Olatel may, at any time, amend the provisions of this Agreement.
Any amendment proposed by Customer may only be accepted by Olatel
in a non-electronic writing manually signed by authorized
representatives of the parties. Notwithstanding anything in this
Section to the contrary, if Olatel posts amended terms on its
Website, such terms will automatically become effective ten (10)
days after they are posted on the Website. By using the Services
after such revised terms are posted, Customer agrees to be bound by
any such amended provisions. Therefore, Customer agrees to
periodically visit the Website to examine the then-current
Agreement.
Revised February 4, 2011
