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MOVILINE SERVICE TERMS AND CONTRACTS
The following terms and conditions of service (the “Terms”) govern your use of Movita’s enhanced residential communications services and any related products or services, and form part of your service agreement with Movita Communications Inc. (the “Agreement”).
1.1 Throughout the Agreement, the following terms have the following definitions:
us, we, our, and Movita means Movita Communications Inc.;
you, your, or Customer means you;
Device means any device, equipment or hardware used to access the Services or used in conjunction with the Services, including, but not limited to, a mobile phone, pager or SIM (Subscriber Identity Module) card;
Marks mean all Movita websites, corporate names, service marks, trademarks, trade names, logos and domain names;
Service or Services means Movita’s enhanced residential communications services and any related products or services;
Service Term means the period starting on the date that Movita activates your Service and ending on the day before the same date in the following month.
THE USE OF SERVICE REPRESENT THAT YOU UNDERSTAND FULLY AND AGREE TO ITS TERMS AND CONDITIONS.
2.0 USE OF SERVICE
2.1 Service Term
The initial term of the service is one (1) month (the “Initial Term”). Following the end of the Initial Term, this Agreement will automatically renew on a month-to-month basis (“Renewal Term”). If you would like to terminate this Agreement, you must provide us with ten (10) days’ written notice prior to the end of the then applicable Service Term.
If you choose to terminate all or part of the Services, such termination will be subject to the following conditions:
(i) If you cancel a single, or multiple, Service option(s), you will be billed the remainder of any applicable monthly charges associated with that Service option, and any Price Adjustment Fee, as such term is defined in this Agreement, applicable to such Service option in connection with any special offers or promotions, plus applicable taxes.
(ii) If you terminate this Agreement, you must pay in full all fees associated with the Services for the then applicable Service Term, all late payment fees, disconnection fees (if applicable), and any outstanding payments, fees, and charges owing under this Agreement, plus any applicable taxes. This obligation will survive termination of this Agreement.
(iii) If you terminate the Agreement without providing us with ten (10) days’ prior notice, you will be responsible for all charges relating to the current month in which you terminate the Agreement, as well as all service charges and fees relating to the next month.
2.2 Promotional Consideration.
If you accept or have received any type of promotional consideration, there may be a time commitment associated with that promotional consideration (“Promotional Commitment Period”). The Promotional Commitment Period will be disclosed to you as part of the promotional consideration. To the extent there is a Promotional Commitment Period, it will begin on the date you accept the promotional consideration and will terminate on the last day of the Promotional Commitment Period, as stipulated by Movita. In the case where there is no Promotional Commitment Period stipulated by Movita at the time you accept or receive the promotional consideration, the Promotional Commitment Period will be one (1) year. If you choose to terminate the promotional consideration, or terminate this Agreement, prior to the end of the Promotional Commitment period, you agree to pay Movita a price adjustment fee in an amount equal to the difference between the price you paid for the promotional consideration, and the regular price of the promotional consideration you received at the time the Promotional Commitment Period began (“Price Adjustment Fee”). Price Adjustment Fees are cumulative and in addition to any other charges or fees you may owe Movita.
Movita has the right to monitor, log or investigate any use by you of the Service. Movita reserves the right to delete, remove or block access to any third party products or service available or transmitted through the Service that Movita, in its sole discretion, believes is unacceptable or in violation of this Agreement.
2.4 Telephone Number and Identifiers
You do not own the telephone number or other identifiers that we have provided or assigned to you. We reserve the right, at any time and from time to time, to change any such identifier if required. We will notify you in advance of any such change, and we will not be liable or responsible for any costs, damages or losses you incur that are associated with any change of your telephone number of other identifiers.
2.5 Transferring Your Number
If would like to transfer your phone number to another service provider, subject to your account being active, we will process a transferring request from your new chosen service provide. You must pay any applicable termination fees associated with the termination of this Agreement and, if you do not provide us with the 10 days written notice prior to the end of the then applicable Service Term, you must also pay all fees applicable for the 30 days after the transfer is requested. The Service cannot be transferred to your new service provider. Movita is not responsible or liable for any interruption or disruption of services resulting from such transfer, or for any charges, costs, expenses or fees which you incur or suffer resulting from the transfer of your phone number.
2.6 Prohibited Uses
You cannot use the Service, or allow others to use the Service, for any illegal uses, including without limitation, if such use:
(i) is for, or results in, any illegal, abusive, or offensive activities, including, but not limited to, making available offensive content, the commission or encouragement of a criminal offence, stalking, harassment, spamming, disrupting or interfering with any network, defamation, intellectual property infringement, or interference with other clients' service; or
(ii) is higher than average or consumes excessive network capacity in Movita’s reasonable opinion, or causes our network, or our ability to provide services to others, to be adversely affected;
You shall not (a) commit, attempt to commit, or allow others to commit or attempt to commit, any fraud against Movita including fraudulently obtaining Services, or (b) transform outbound communications into incoming communications or otherwise attempt to avoid applicable charges, or (c) otherwise abuse the Services, or allow others to do any of the foregoing.
Movita may immediately suspend, restrict, change or terminate all or part of your Services without notice, or take other necessary protective measures if Movita has reasonable grounds to believe there is a breach of any of these "Prohibited Uses" provisions.
You are responsible for and will indemnify us for all damages, losses, expenses and any action, claim or judgment which may be made against us by anyone in connection with the use of the Service, or your violation of this Agreement.
If Movita, in its sole discretion, believes that you have violated the above restrictions, Movita may forward any objectionable material, as well as your communications with Movita, and your personally identifiable information, to the appropriate authorities for investigation and prosecution and you hereby expressly consent to such forwarding.
2.7 Use of Service
You may not resell or transfer the Service or the software to any other person for any purpose, or make any charge for the use of the Service, without the prior written permission of Movita.
2.8 Copyright / Trademark / Unauthorized Usage of software
The Service and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, and all Services, information, documents and materials on movitatel.com website(s) are protected by trademark, copyright or other intellectual property laws. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "Marks") of Movita are and will remain the exclusive property of Movita and nothing in this Agreement will grant you the right or license to use any of such Marks. You expressly agree that the software is exclusively for use in connection with the Service. You will not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the software. If you use the Service through an interface device not provided by Movita, or that is unauthorized by Movita, which Movita reserves the right to prohibit, in its sole discretion, you represent that you possess all required rights, including software and/or firmware licenses, to use that interface device with the Service.
You will defend, indemnify, and hold harmless Movita, its officers, directors, employees, affiliates and agents from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, legal fees and expenses) Movita suffers or incurs and resulting or arising from your breach of this Section.
2.9 Tampering with the software or Service.
You agree not to modify, remove, or disable the software provided for the Service. You agree not to hack or disrupt the Service or to make any use of the Service that is inconsistent with its intended purpose. Movita reserves the right to terminate your Service should you tamper, in any way and in Movita’s sole discretion and opinion, with the software. If Movita terminates your Service, pursuant to this Section, you will be responsible for all charges for the then applicable Service Term, including, without limitation, all unbilled charges, late payment fees, and any disconnection fees (if applicable).
2.10 Theft of Service
If your Device is stolen, or if you become aware at any time that your Service is being stolen or fraudulently used, you must notify Movita immediately, by calling the Movita customer support line at 1-613-366-1097, or in writing at the following address: 38 Auriga Drive, Suite 200, Ottawa, ON, K2E 8A5. You will be liable and responsible for all use of the Service or the Device, and all charges relating to such use, until you provide Movita with notification, as set out in this section.
2.11 Your Passwords and Account Security
You agree and understand that you are responsible for maintaining the confidentiality of any passwords associated with any account you use to access the Services. If you become aware of any unauthorized use of your account or your password, you must notify Movita at the following email address: email@example.com or by calling 1-613-366-1097. You will be liable and responsible for all use of your account and your password, and all charges relating to such use, until you provide Movita with notification, as set out in this section.
2.12 Software Updates
The software may, from time to time, automatically download and install updates from Movita. These updates are designed to improve, enhance and further develop the Services. You agree to receive such updates, and permit Movita to deliver such updates to you, as part of your use of the Services.
2.13 No 0+ or Operator Assisted Calling.
The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls, 900 or calling card calls). The Service does not support 311, 511 and/or other x11.
2.14 Customer Service.
Movita offers different levels of customer service. For more information on our customer service options, please review the “Support” section of our website located at www.movitatel.com. We reserve the right to change the customer service options from time to time, and at any time, without notice to you.
3.0 EMERGENCY SERVICES
3.1 Wireless Cellular Mobile Devices
Any emergency 911 calls originating from mobile cellular devices requiring emergency services are handled by, and are the responsibility of, your underlying mobile operator. Movita Communications does not interfere with, or have control over, any such emergency 911 calls.
3.2 Disclaimer of Liability and Indemnification for Emergency Services
Notwithstanding anything else in this Agreement, Movita will have no liability or responsibility in the event any third party data used to route calls is incorrect or yields an erroneous result. Neither Movita, nor its officers, directors, employees, affiliates and agents, will be liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to 911 emergency or dialing services, unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct.
You will defend, indemnify, and hold harmless Movita, its officers, directors, employees, affiliates and agents from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, legal fees and expenses) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, incorrectly routed 911 dialing calls, and/or the inability of any user of the Service to be able to use 911 or access emergency service personnel.
4.0 CHARGES / PAYMENTS / DEFAULT / TAXES / TERMINATION
For the purposes of this Agreement, the following terms have the following meanings:
Activation Fee means the fee and all charges relating to setting up your account and activation of such account.
Service Plan Options means those features and options that you may add to your service and for which Movita charges additional fees.
International Service Charges means those fees associated with calls to locations outside of Canada, and the United States.
Service Fee means the basic charge associated with your Service, and includes, without limitation, all calling charges set out in your plan, basic account services, and charges for any options and features set out in your plan. Any Service Fees will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found on the movitatel.com website.
Taxes means those amounts Movita is required to bill to you, and collect, on behalf of local, provincial and federal tax authorities. Movita remits all taxes it collects to the appropriate taxing authority.
Usage Charges means those charges that will be billed to you if you exceed the number of calling minutes on your plan. Movita will bill you for the minutes you use above your allowance. Movita also bills for calls you make to directory assistance and other information services.
When you activate your Service, you must provide us with a valid credit card number (Visa, MasterCard, or any other credit card issuer accepted by Movita). Movita reserves the right to stop accepting credit cards from one or more credit card issuers. If the card you provide us with expires, you close your account, your billing address changes, or your card is cancelled and replaced owing to loss or theft, you must advise Movita immediately by calling the following number: 1-613-366-1097. We will bill all charges, applicable taxes and surcharges monthly in advance of the Service Term for which they are applicable (except for usage-based charges, which will be billed monthly in arrears, and any other charges which Movita decides to bill in arrears) to your credit card, including but not limited to:activation fees, Service Fees, usage charges, International Service Charges, Service Plan Option fees, advanced feature charges, premium services/add-ons, equipment purchases, taxes, disconnection fees (if applicable), and shipping and handling charges. Movita reserves the right to bill at more frequent intervals if the amount due and owing by you at any time exceeds $50. You expressly authorize Movita to charge your credit card the amount of any Service Fees (including taxes) due under your account. This will constitute Movita’s sufficient authority for doing so.
We may impose a credit limit on your account at any time. If your balance exceeds this limit at any time, Movita reserves the right to suspend your Service. Movita also reserves the right to change your credit limit at any time and from time to time. We will provide you with notice of any imposition of a credit limit on your account, or any change to that credit limit.
4.2 Billing Disputes
Movita requires you to report, within fourteen (14) days after receiving your credit card statement, any discrepancies, or disputes you might have with a Movita charge. If you do not provide us with such notice and report within the applicable time period, your dispute will be deemed waived and accepted by you. Billing disputes should be forwarded to the following address:
Customer Care Billing Department
Movita Communications Inc..
38 Auriga Drive, Suite 200
Ottawa, ON K2E 8A5
or by calling: 1-613-366-1097
You agree to pay all applicable fees, charges and taxes relating to the Services. This authorization will remain valid until 30 days after we receive written notice from you terminating our authority to charge your credit card, whereupon Movita will disconnect your Service and charge you for the disconnection fee, if applicable, and any applicable termination charges or outstanding charges. We may disconnect your Service at any time in our sole and absolute discretion if any charge to your credit card is declined or reversed, your credit card expires and you have not provided us with a valid replacement credit card or in case of any other non-payment of account charges. If your Service is disconnected pursuant to this Section, you will remain fully liable to us for all charges under this Agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and legal fees and expenses.
Disconnection; Discontinuance of Service. We reserve the right to suspend or discontinue the Service generally, or to disconnect your Service, at any time in our sole and absolute discretion. If we discontinue the Service generally, or disconnect your Service, without a stated reason, you will only be responsible for charges accrued through the date of disconnection, including a pro-rated portion of the final Service Fees. If your Service is disconnected as a result of your breach of any provision of this Agreement, you will be responsible for all Service Fees accruing to the end of the current Service Term, including unbilled charges, plus the disconnection fee, if applicable, all of which will immediately be due and payable.
Movita will pursue collection for unpaid amounts on disconnected accounts and may report to and exchange credit and personal information with any credit/consumer reporting agency and financial institution relating to this Agreement.
Federal, provincial, municipal, local or other governments may assess taxes, surcharges and/or fees on your use of Movita Service. You are responsible for all applicable federal, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service. Such amounts are in addition to Service Fees for the Service and will be billed to your credit card as set forth in this Agreement. If you are exempt from payment of such taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate.
4.5 Disconnection Fee
You will be charged a disconnection fee, equal to base service charges of your last month of service with Movita Communications Inc. if your Service is disconnected, subject to applicable federal, provincial and local laws.
5.0 REVISIONS OR MODIFICATIONS TO THIS AGREEMENT
Movita may change these Terms of Service from time to time, and may add or change fees, rates, rate plans and charges for services and features, and terms and conditions of any services, at any time. Notices of such revisions will be considered given and effective on the date such terms and conditions are posted on the "Service Announcements" section of Movita’s website (currently located at http://www.movitatel.com ). Such revisions will become binding on you, on the date such terms and conditions are posted to the movitatel website and no further notice by Movita is required.
If you do not accept the modification, your sole remedy will be to terminate the Services, and paying all applicable fees for the then current Service Term, upon providing Movita with 10 days’ prior written notice. Should you continue to receive the Services after such change is effective, you expressly agree that no additional written agreement or express acknowledgment will be required to accept such change and, unless otherwise prohibited by law, and you specifically waive any and all statutory requirements for notice and express acceptance of such changes except for those provided in this Section.
This Agreement and the Terms cannot be changed, modified or altered in any way by you, or by a Movita sales representative.
6.1 Network Security
The Movita Service utilizes, in whole or in part, public Internet and third party networks to transmit voice and other communications. Movita is not liable for any lack of privacy which may be experienced with regard to the Service.
6.2 Personal Information
To the extent that personal information is provided in connection with this Agreement, you consent to the use, collection and disclosure by Movita, assignees of Movita, and their respective affiliates, agents and contractors for the following purposes:
(i) providing products and services to you,
(ii) managing and administering your contract,
(iii) establishing a customer relationship and communicating with you,
(iv) developing, implementing and managing products and services for you,
(v) assisting in law enforcement purposes and collecting unpaid debts,
(vi) providing you with information on other products and services which may be available; and
(vii) otherwise as required or permitted by law or this Agreement.
You may withdraw your consent in respect of clause (vii) above, without affecting your other arrangements with Movita, by notifying Movita’s Privacy Officer in writing at privacyofficer@ movitatel.com. For the purposes of this section, “personal information" does not include the name, address and telephone number of a subscriber that appears in a publicly available telephone directory.
7.0 WARRANTY AND LIABILITY LIMITATIONS / INDEMNIFICATION
7.1 Limitation of Liability
Movita will not be liable for any delay or failure to provide the Service, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:
1) act or omission of an underlying carrier, service provider, vendor or other third party;
2) equipment, network or facility failure;
3) equipment, network or facility upgrade or modification;
4) force majeure events such as (but not limited to) acts of god; strikes; fire; war; riot; government actions;
5) equipment, network or facility shortage;
6) equipment or facility relocation;
7) service, equipment, network or facility failure caused by the loss of power to Customer;
8) any other cause that is beyond Movita's control, including without limitation, a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications to be connected or , or degradation of voice quality.
Movita will not be liable to you or anyone using your Device or the Services or any third parties for the following:
Any damages, loss of profits, loss of property, loss of earnings, loss of business opportunities, misappropriation of personal information stored on device or SIM card or any other loss, however caused, including from use of the services or your device;
Any violation by you of the agreement, your negligence, or acts or omissions in connection with the services, or your device; and/ or
Loss, theft, damage to or unauthorized use of the Services, your Device, or any equipment.
For all other damages, Movita’s aggregate liability will not exceed the Service charges you have paid under this Agreement.
You agree to defend, indemnify, and hold harmless Movita, its officers, directors, employees, affiliates and agents who furnishes services to you in connection with this Agreement or the Service, for all damages, losses, penalties, expenses (including, without limitation, reasonable attorneys fees) and any and all claims, actions, or judgments which may be made against use by anyone in connection with the use of the Service or your violation of this Agreement. This paragraph shall survive termination of this Agreement.
7.3 Disclaimer of Damages
In no event shall Movita, its officers, directors, employees, affiliates or agents or any other service provider who furnishes services to you in connection with this agreement or the Service be liable for any direct, incidental, indirect, special, punitive, exemplary or consequential damages, or for any other damages, including but not limited to loss of data, loss of revenue or profits, or damages arising out of or in connection with the use or inability to use the service, including inability to be able to dial 911 or to access emergency service personnel through the service.
7.4 No Warranties on Service
Movita makes no warranties, express or implied, including but not limited to, any implied warranties of merchantability, fitness of the service for a particular purpose, title or non-infringement or any warranty arising by usage of trade, course of dealing or course of performance or any warranty that the service will meet customer's requirements. Without limiting the foregoing, Movita does not warrant that the service will be without failure, delay, interruption, error, degradation of voice quality or loss of content, data or information. Neither Movita nor its officers, directors, employees, affiliates or agents or any other service provider or vendor who furnishes services or products to customer in connection with this agreement or the service will be liable for unauthorized access to Movita’s or customer's transmission facilities or premises equipment or for unauthorized access to, or alteration, theft or destruction of, customer'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 Movita’s or its service provider's or vendors' negligence. Statements and descriptions concerning the service or device, if any, by Movita or Movita’s agents or installers are informational and are not given as a warranty of any kind.
8.0 EXPORT CONTROLS
You agree to comply fully with all relevant export laws and regulations of Canada, and without limiting the generality of the foregoing, you expressly agrees that you shall not export, directly or indirectly, re-export, divert, or transfer any portion of the Service to any destination, company or person restricted or prohibited by such laws or regulations.
9.1 Governing Law
The Agreement and the relationship between you and Movita is governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein without regard to its conflict of law provisions. You submit and attorn to the non-exclusive jurisdiction of the courts of the Province of Ontario to determine all issues, whether at law, contract or equity, arising from this Agreement.
9.2 Mandatory Arbitration and No Jury Trial
Except to the extent contrary to applicable law, any dispute or claim between you, any member of your household or any guest or employee of you and us arising out of or relating to the Service will be resolved by arbitration before a single arbitrator administered by a Canadian arbitration organization of our choosing. The arbitration shall take place in Toronto, Ontario and shall be conducted in English. The arbitrator's decision will follow the plain meaning of the relevant documents, and will be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED, except to the extent such a limitation is prohibited by applicable law. All claims shall be arbitrated individually. Except to the extent contrary to applicable law, you will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND AN AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL PROCEEDINGS IN, ONTARIO.
9.3 No Waiver of Rights
Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
9.4 Entire Agreement
This Agreement, including any future modifications as may occur within the terms of the Agreement, and the rates for Services found on our website constitute the entire agreement between you and Movita and govern your use of the Service. This Agreement supersedes any prior agreements between you and Movita and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.