The terms herein are referenced in various documents such as invoices, pro-forma invoices, quotes, etc., furnished by IPFINITY Inc. (hereinafter “IPFINITY”, “us”, “we”) to you, the user of our services (hereinafter “User”, “you”) . We agree to provide you with telephony and related services specifically subject to your acceptance and compliance with the terms and conditions herein. The aforesaid services (“Service”) are as set forth in various invoice(s), pro-forma invoice(s), quotes, etc. submitted by us to you from time-to-time.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING THE SERVICE. BY ACCESSING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MUST NOT ACCESS OR USE THE SERVICE. FURTHERMORE, THE TERMS AND CONDITIONS MAY CHANGE FROM TIME-TO-TIME AND WILL COME INTO EFFECT 30 DAYS AFTER THE CHANGE IS MAILED, FAXED OR POSTED ON IPFINITY’S WEBSITE UNDER “TERMS OF SERVICE” OR SIMILAR HEADING.

UNLESS E911 SERVICE IS SPECIFICALLY REQUESTED AND SUBSCRIBED TO, THERE IS NO “911″ OR EMERGENCY CALLING CAPABILITY ON THE SERVICE PROVIDED BY IPFINITY. IF E911 service is provided, its terms and conditions are documented in a separate E911 Terms-Of-Service agreement.

Warranty Disclaimer

THE FOREGOING WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED.

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION PROVIDED BY IPFINITY, ITS AFFILIATES, LICENSORS, CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY. NEITHER IPFINITY NOR ITS AFFILIATES, ITS LICENSORS, CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES WARRANT THAT THE SERVICE WILL BE ERROR FREE.

Limitation of Liability

UNDER NO CIRCUMSTANCES SHALL IPFINITY, ITS AFFILIATES, LICENSORS, CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM USER’S USE OF OR INABILITY TO USE THE SERVICE. USER’S RELIANCE ON OR USE OF INFORMATION, SERVICES OR MERCHANDISE PROVIDED ON OR THROUGH THE SERVICE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, ANY FAILURE OF PERFORMANCE, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO ALTERATION OF OR USE OF USER’S ACCOUNT, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR UNDER ANY OTHER CAUSE OF ACTION. IN THE EVENT IPFINITY IS FOUND LIABLE UNDER ANY CIRCUMSTANCE UNDER THE TERMS OF THIS AGREEMENT, IPFINITY’s LIABILITY SHALL BE LIMITED TO THE REFUND OF ANY UNUSED BALANCE OF USER’S SUBSCRIPTION PAYMENT PRO-RATED TO REFLECT THE CURRENT TERM.

If User is dissatisfied with the Service or with any terms, conditions, rules, policies, guidelines or practices of IPFINITY in operating the Service, User’s sole and exclusive remedy is to discontinue using the Service and to inform IPFINITY of the same.

Indemnification

Notwithstanding anything to the contrary herein contained, User agrees to indemnify and hold IPFINITY, its affiliates, its licensors, its contractors or their respective employees harmless against any and all liability, loss, claim, judgment, damage and expense (including without limitation attorney’s fees and cost of litigation) incurred or suffered by IPFINITY, its licensors, its affiliates, its contractors, or their respective employees as the result of any and all of User’s use of the Service whether or not as a result of any breach of any of the terms of this Agreement by User. User shall promptly notify IPFINITY in writing of any claim of which it is obligated under this indemnity.

Prohibited Uses

User may not:

  1. Use the Service (or components of or derivatives of the Service) for any illegal purpose;
  2. Hack or spoof, or attempt to hack or spoof the Service;
  3. Rent, sublicense, timeshare or otherwise share, rent or lease the Service to other parties without IPFINITY’s written consent;
  4. Use the Service (or any components or derivatives of the Service, such as call records and call recordings) in a manner that breaks applicable laws, such as privacy and confidentiality laws.

Confidential Information

If User requests that IPFINITY provide electronic records or recordings to User, User shall be responsible for ensuring that such data are treated (stored, transmitted) in a manner that is compliant with applicable laws. Furthermore, User agrees that IPFINITY has the right to monitor the Service and to disclose any information as may be necessary to satisfy any law, regulation or other governmental request, to operate the Service properly, or to protect itself or its subscribers. IPFINITY will not intentionally monitor or disclose any private information unless required by law. IPFINITY reserves the right to refuse to accept traffic, signals, connections, etc. that, in whole or in part, and in its sole and absolute discretion, are unacceptable, undesirable, or in violation of this Agreement. IPFINITY reserves the right to suspend access to the Service for User’s account. The account’s suspension may be rescinded within the sole and absolute discretion of IPFINITY following payment of a reconnection charge, to be determined by IPFINITY in its sole and absolute discretion.

User is responsible for the safeguarding of any confidential information provided by us, such as usernames and passwords. User agrees to convey any security breach of such information to us immediately. Usage charges, such as long distance charges, attributable to a breach of security of usernames and passwords will be to the User’s account until we are notified.

Restricted Content

User agrees not to use the Service for any of the following restricted contents: illegal, abusive or unethical activities include, but are not limited to, pornography, obscenity, nudity, violations of privacy, hacking, gambling, or promotion of gambling, and any harassing or harmful materials or uses, as determined by us. User agrees to indemnify and hold IPFINITY harmless from any claim resulting from User’s unethical, illegal or abusive use of the Service.

Bandwidth Restrictions

We reserve the right to terminate or throttle your Service for persistent excessive traffic that overwhelms our systems. If a request for compliance is not met within 5 business days, we reserve the right to cancel the Service. We furthermore reserve the right to immediately suspend Service if excessive traffic threatens the integrity of the Service.

Terms of Payment

Payment terms are as stated on the invoice(s). IPFINITY maintains the right to terminate Service for any unpaid or overdue accounts. Accounts that are in default are subject to a service charge of 2.5% per month on the outstanding balance. Termination of Service shall not relieve User from the obligation to satisfy outstanding invoices. In the event IPFINITY utilizes an attorney to collect any unpaid amounts, User shall be responsible for the payment of all of IPFINITY’s attorneys’ fees and costs in the collection of these sums.

IPFINITY reserves the right to change prices at any time without prior notice to its customers or the public. Price changes will not be retroactive for existing customers, regardless of the length of their existing service subscription.

User is responsible for verifying long distance rates before making calls to the specific number.

Cancellation Policy

IPFINITY reserves the right to cancel Service for any reason with 30 days’ prior notice. Annual and quarterly pre-paid service is refundable, but prorated based on months used. Cancellations after the first of the month will be charged for that month. Setup fees are not refundable. For quarterly or annual accounts in which all or part of setup fee was waived, the setup fee will be deducted from the amount of the refund due if the account is cancelled before the term length of the account: 90 days for a quarterly account and one year for an annual account. Nightingale devices and any other premise equipment must be returned by the User intact and in working order, postage prepaid, no later than 30 days after the cancellation date.

User must notify IPFINITY via telephone, email, or in writing to cancel the Service. Fees for any setup, shipping and handling, and monthly service charges placed by IPFINITY are non-refundable. User must give 30 days’ notice prior to user’s intended cancellation date to avoid a cancellation fee equal to one month of user’s current service plan.

No Confidentiality

Information transmitted through the Service and through the Internet in general is not confidential. IPFINITY cannot and does not guarantee privacy or protection of any User. IPFINITY reserves the right to monitor any User’s transmissions when deemed necessary for providing proper service and/or to protect the rights and property of IPFINITY.

No Transfer

The right to use the Service is not transferable, rentable or sharable. Accounts are for User’s use only. User shall be responsible for the confidentiality of User’s passwords. Loaning or sharing User’s account or Service with others is explicitly prohibited. Violation of these terms shall constitute theft of Service and may be prosecuted under civil and criminal law.

 

Miscellaneous

User agrees to notify IPFINITY if User moves or otherwise changes his or her mailing address or phone number, and to list a truthful name, postal address and telephone number on the forms User supplies to IPFINITY.

In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect.

IPFINITY’s failure to insist upon or enforce strict performance of any provisions of this Agreement shall not be construed as a waiver of any provision or right. neither the course of conduct between parties nor trade practice shall act to modify any provision of this Agreement.

IPFINITY may update this Agreement from time to time by placing the updated agreement on our website ( ). User’s continued use of the Service 30 days following such modification shall be deemed to be User’s acceptance of any such modification. It is User’s responsibility to check this online area regularly to determine whether this Agreement has been modified. If User does not agree to any modification of this Agreement, User must immediately stop using the Service.

This Agreement shall be governed by and construed in accordance with the laws of Ontario and Canada without regard to its conflicts of law provisions. Any cause of action User may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.

IPFINITY shall not be liable or deemed to be in default for any delay or failure in performance under this Agreement or interruption of service resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, riots, civil disturbances, insurrections, accidents, dire, explosions, earthquakes, floods, the elements, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation or any cause beyond the reasonable control of IPFINITY.

Venue for litigation of any dispute, controversy, or claim arising out of, in connection with, or in relation to this Agreement, or the breach thereof, naming IPFINITY as the defendant, shall be proper only in a venue determined by IPFINITY.

In any action between IPFINITY and User to enforce any of the terms of this Agreement, IPFINITY shall be entitled to recover expenses, including reasonable attorney’s fees.

This Agreement constitutes the entire agreement between User and IPFINITY with respect to the Service.

Last Modified: May 2, 2011