The Client requests from Helia Voice Inc., a trade name duly registered in the Province of Alberta ("hereinafter referred to as "Helia") and Helia is pleased to provide to its Client, Voice over Internet Protocol (VOIP) services, Equipment, and related hardware and services as outlined in the Client Services Summary (the "Services"), subject to the terms and conditions contained herein.
Service Commencement Date
The Services shall come into effect on the earlier of: (a) the date Helia attends the Client premises to deliver and connect Equipment or (b) the delivery date of the Equipment to the Client premises (the "Commencement Date").
The Term of this Agreement is outlined in the Client Services Summary (the "Term") and shall come into effect on the Commencement Date.
Monthly Rates and Service Charges
Throughout the Term, the Client shall pay to Helia the monthly fees (the "Monthly Recurring Charge" or "MRC") and any one-time service charges (the "Non-Recurring Charge" or "NRC") for the Services. Applicable taxes will be the responsibility of the Client. The Client agrees to pay the service charges (the "Service Charges"), as they may apply, throughout the Term, as identified in the Service Schedule. The Client agrees and acknowledges that any hardware, cabling, equipment or devices, including but not limited to telephone sets, cables, gateway, or any other devices (the "Equipment") provided to the Client by Helia or a Helia dealer, partner, or distributor is being provided to the Client at less than market value as part of the Services. As such, legal title to the Equipment does not transfer to the Client until the end of the Term. In the event of Termination due to Default by the Client, the Client agrees to return all Equipment to Helia, pay a restocking fee equal to fifteen (15%) percent of the MSRP (as defined in the Client Services Summary), and agrees to all other damages arising from the Default in accordance with the Termination provisions of this Agreement. Client consents to Helia's filing of a notice of security interest pursuant to the applicable Personal Property Security Act or similar legislation (the "Act") and further consents to Helia's enforcement of all of its legal rights pursuant to the applicable Act.
The Client will:
Provide terminated Cat5 or Cat6 Cable at each location where a telephone is required;
Provide ethernet cable, including patch cables, terminated in desired room for DSL run;
If using more than 4 cable runs, Client agrees to use a patch panel;
Provide switched 100BaseT LAN with at least 1 port per phone available;
Permit reasonable access to Helia during Helia's business hours to connect, test, and modify Equipment as needed; and
Other requirements, as determined by Helia, to provide the Services to the Client.
All invoices are due and payable upon receipt and will be subject to a pre-authorized payment plan ("PAPP"), unless Helia has approved the Client for credit pursuant to Helia's current credit granting policies, in which case payment shall be due on the date stipulated on the invoice. Any changes to the PAPP shall be sent to Helia no later than thirty (30) days prior to the effective date of any change. NSF or missed payments will incur a service charge per occurrence as outlined in the Service Schedule. The Client agrees to execute any PAPP or other documents required by Helia to permit Helia to determine the credit worthiness of the Client, including bank/credit card verification, and legal name verification. Helia will charge interest at a rate as outlined in the Services Schedule for overdue accounts, and all payments for Services will be applied first to any interest, then to any arrears, and finally to Services.
This Agreement may not be assigned or transferred by the Client without the prior written approval from Helia. This Agreement may be assigned or transferred by Helia to any party at any time.
Relocation of Services and Equipment
The Client covenants and agrees not to relocate the Services or Equipment without the consent of Helia in writing first having been obtained. Such written request for relocation must be submitted to Helia no less than sixty (60) days prior to any relocation and must include the address the Services and Equipment are to be relocated to. The Client agrees to retain Helia for such relocation at the rates outlined in the Service Schedule.
Modifications of Services or Equipment
The Client covenants and agrees not to, whether using its own resources or utilizing third party service providers (the "Service Provider") to alter, change, add to, modify, delete from, or in any way make changes to the Services or the Equipment or the configuration of the Services or the Equipment unless Helia had provided consent or the Service Provider is authorized by Helia as a Helia Authorized Service Provider.
Pricing and pricing adjustments to any services as requested by the Client but not identified in this Agreement will be charged at the then applicable market rate and term for such services, as determined by Helia
Changes to This Agreement
Helia may change, modify, add, or remove portions of this Agreement from time to time. Notice will be given to the Client pursuant to section 23 of this Agreement and will be effective on the earlier of the date of notice or the date posted on to the "Service Announcements" section of Helia's client portal section of Helia's website, currently www.heliatech.ca, or such location as determined by Helia (the "Website") and your continued use of the Services following such amendment shall be deemed to be acceptance of such amendments. Changes to charges outlined in the Service Schedule will also be posted on the Website and such charges will be deemed to be in effect the date they are posted on the Website. It is further acknowledged that this Agreement is subject to terms and conditions that may be required by statute regulation or CRTC (or other regulatory body) pronouncement. Helia may disclose any information as is necessary in order to: satisfy any legal, regulatory or other governmental request; operate the Equipment or Service properly, or protect Helia or its Clients. This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein. This Agreement and all Schedules attached to this Agreement constitute the entire Agreement and understanding between the parties with respect to the subject matter of this Agreement and supersede and replace any and all prior written, electronic, or verbal agreements.
No Warranty Implied or Expressed
Any hardware, software, or Equipment provided by Helia to the Client is not warranted by Helia but may be covered by a manufacturer warranty. The Client shall be responsible for any claims made in accordance with the manufacturer warranty. If Helia is required to assist the Client with respect to warranty issues, this assistance shall be provided at the rates outlined in the Service Schedule.
The Client acknowledges and agrees that the Services are not traditional telephone services. Important distinctions (some, but not necessarily all, of which are described in this Agreement) exist between telephone services and the Services provided by Helia. The Services are subject to different regulatory treatment than telephone services. This treatment may limit or otherwise affect your rights of redress before Federal or Provincial telecommunications regulatory agencies.
Helia utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Helia is not liable for any lack of privacy that may be experienced with regard to the Service.
The failure of either party to insist upon strict interpretation of this Agreement or to exercise any option herein, shall not act as a waiver of any right or option, but the same shall continue to be in full force and effect. No waiver by either party of any breach shall be effective unless expressed in writing.
Limitation of Liability
For the purposes of this Section "Helia" shall include Helia, any affiliated partner, the parent and subsidiary companies of Helia, and the directors, officers, employees, consultants, sub-consultants, insurers, successors, assigns, agents, sub-agents and representatives of all of them.
Helia shall not be liable for any delay or failure to provide the Services, including, but not limited to, 911 dialing at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:
any act or omission of an underlying telecom or broadband carrier, service provider, vendor or other third party;
Equipment, network or facility failure;
Equipment, network or facility upgrade or modification;
force majeure events including, but not limited to, acts of God, actions of the elements, strikes, fire, war, riot, laws, orders, rules, regulations, government actions or any other event beyond the reasonable control of either party, as the case may be;
Equipment, network or facility shortage;
Equipment or facility relocation;
Service, equipment, network or facility failure caused by the loss of power to Client;
any act or omission of Client or any person using the Services provided to Client; or
any other cause that is beyond Helia's control including, but not limited to, a failure of or defect in any device, the failure of an incoming or outgoing communication, the inability of communications (including without limitation 911 dialing) to be connected or completed, or degradation of voice quality.
Helia's entire liability to the Client or any third party in connection with this Agreement or the Services or the provision or non-provision thereof is limited to the Client's proven direct damages, such amount not to exceed per claim (or in the aggregate during any 12 month period) the amount paid by the Client for one month of the affected Service(s) (such amount to be based on average monthly charges paid by the Client over the 6 months prior to the month in which the damages were incurred or the length of the contract, whichever is less).
Without limiting the generality of the foregoing, Helia shall not be liable for:
defamation or copyright or trademark infringement or the violation of any third party rights arising from the use of the Services by Client or material transmitted or received by Client;
Client's infringement of patents;
any act or omission of any connecting carrier, underlying telecom or broadband carrier, local exchange telephone company, Internet access or service provider, or acts or omissions of any other providers of connections of any kind and nature whatsoever, facilities (including equipment), or services which are used by Helia, the Client or its end-users under this Agreement;
any unauthorized use of the Services by the Client;
service interruptions, errors, delays or defects in transmission or failure to transmit caused by power fluctuations or power failure at Client or its enduser location(s);
service interruptions, errors, delays or defects in transmission or failure to transmit caused by Helia in its performance of maintenance; or
service interruptions, errors, delays or defects in transmission or failure to transmit caused by an act of God, fortuitous event, war, insurrection, riot, strike, walkout, lockout or other labour unrest affecting Helia or its suppliers, storm, fire, flood, explosion, lightning, government restraint, delays in producing supplies, shortages of suitable labour, equipment or materials, power shortages or interruptions or any other event beyond the reasonable control of Helia.
Helia will not be liable for any damages in respect of: Client's facilities, equipment, software, applications, services or content provided by the Client, permitted users or third parties; unauthorized access to or theft, alteration, loss or destruction of Client's, Client's permitted users' or third parties' applications, content, data, programs, information, network or systems by any means including, but not limited to, viruses; or any act, omission or failure of the Client's equipment or connections provided by the Client, Client's permitted users or third parties.
In no event shall Helia be liable for the use of the Services by the Client, Client's permitted users or any third party for unlawful or illegal purposes.
Helia does not represent, warrant, covenant or guarantee that transmissions initiated by Client, Client's permitted users or third parties in the course of using the Services cannot be received or intercepted by other person(s).
These limitations of liability shall apply regardless of the form of action or theory of recovery, including, but not limited to, breach of contract (express or implied), breach of warranty (express or implied), strict liability, or tort, including without limitation negligence of any kind, whether active or passive, or any combination thereof, in respect of Helia.
Termination, Expiration, and Default
The Client may terminate this Agreement at any time after expiration of the original Term by providing Helia with ninety (90) days written notice of such termination. At the end of the Term, the Client will be automatically be treated as a month-to-month Client with associated monthly pricing, at service rates in effect at such time unless a renewal agreement for an extended term is agreed upon by the parties. All terms and conditions of this Agreement, with the exception of section 3 above will continue to apply. Helia may suspend or terminate this Agreement at any time in the event that the Client is in Default or in breach of any term or condition of this Agreement. Client agrees that upon early termination of this Agreement:
The Client will pay Helia in full for use of the Equipment and Services up to the date of termination. If terminated prior to the end of the Term, payment will be an amount equal to the MRC for the Services multiplied by the number of months remaining in the Term plus the unpaid amount of any NRC, subject to a minimum charge of $200.00, plus any additional charges that may be incurred pursuant to this Agreement; and
Client will permit Helia to access its premises during Helia's regular business hours to remove any Equipment and materials belonging to Helia. Such removal will be conducted by Helia at a mutually agreed time.
The Client covenants with Helia and it is a condition of this Agreement that any of the following events shall constitute a default of this Agreement (a "Default"):
failure to fulfill any of the terms and conditions of this Agreement;
an application or petition or certificate or order is made or granted for the winding-up or dissolution of the Client, voluntary or otherwise;
the Client makes any Assignment for the benefit of Creditors, or upon becoming bankrupt or insolvent takes the benefit of, or becomes subject to, any statutes that may be in force relating to bankrupt or insolvent debtors.
Notwithstanding anything herein contained, in the event of a Default, this Agreement will immediately terminate, and any remedies pursuant to this section shall become immediately actionable and any resulting charges shall become immediately due and payable. Helia shall be entitled, without notice, to exercise its rights in accordance with this Agreement, including, but not limited to the repossession of the Equipment and the collection of any fees relating thereto, including the recovery of any collection, seizure, professional fees, and legal fees on a solicitor and his own client basis.
The Client shall defend, indemnify and hold harmless Helia, its affiliates, partners, subsidiary companies of Helia and the directors, officers, employees, consultants, sub-consultants, insurers, successors, assigns, agents, sub-agents and representatives of all of them (hereinafter collectively referred to in this Section as "Helia") and any other service provider who furnishes any part of the Services to the Client in connection with this Agreement or the Services from and against any and all actions, causes of actions, contracts (whether express or implied), claims and demands for damages, loss or injury, suits, debts, sums of money, indemnity, interests, liabilities, obligations, losses, injuries, actions, lawsuits, judgments, decrees, fines, demands, penalties, costs and expenses (including legal fees and disbursements on a solicitor and client basis) arising from claims of any and every kind and nature whatsoever, at law or in equity, in any and all jurisdictions, by any person, including without limitation any of Client's permitted users, based on: the content of any transmissions by the Client or any of Client's permitted users using the Services; the use of the Services by the Client or any of Client's permitted users, including without limitation, any uses prohibited by law or this Agreement; the Client's equipment or connections provided by the Client; or the breach by the Client or any of Client's permitted users of any term or condition of the Agreement.
Without limitation of the foregoing, Client hereby agrees to indemnify and hold harmless Helia from and against any and all actions, causes of actions, contracts (whether express or implied), claims and demands for damages, loss or injury, suits, debts, sums of money, indemnity, interests, liabilities, obligations, losses, injuries, actions, lawsuits, judgments, decrees, fines, demands, penalties, costs and expenses (including legal fees and disbursements on a solicitor and client basis) arising from claims of any and every kind and nature whatsoever, at law or in equity, in any and all jurisdictions, by any person, including without limitation any of Client's permitted users, in respect of the following:
the negligent performance of Client's obligations hereunder;
any breach by Client of any representation, warranty, term or condition contained in this Agreement;
any misrepresentation, material breach, violation, deceit, misconduct, negligence or fraud on the part of any employee or agent of Client while acting in the course of duty; and
any violation or infringement by Client of any laws, rules or regulations. The indemnities given in this Section shall not apply to the extent prohibited by law. In the event of the occurrence of any event that Helia asserts is an indemnifiable event pursuant to this Section, it shall notify the Client and immediately upon receipt of the aforesaid notice, Client shall indemnify Helia for same in accordance herewith.
Client acknowledges and understands that Helia's liability is limited for any Service outage and/or inability to dial 911 or to access emergency service personnel, as set forth in this document.
Disclaimer of Damages
EXCEPT AS OTHERWISE PROVIDED FOR HEREIN, IN NO EVENT SHALL HELIA (AS DEFINED IN SECTION 16 OF THIS AGREEMENT), OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO THE CLIENT IN CONNECTION WITH THIS AGREEMENT, BE LIABLE FOR ANY LOSS, COST, CLAIM OR DAMAGE, INCLUDING WITHOUT LIMITATION ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, THIRD PARTY, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR 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 SERVICES, INCLUDING BUT NOT LIMITED TO ANY FAULTS, INTERRUPTIONS OR DELAYS IN THE SERVICES OR OUT OF ANY INACCURACIES, ERRORS OR OMISSIONS IN THE INFORMATION CONTAINED IN THE SERVICES, INABILITY TO DIAL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL CLAIMS FOR DAMAGES AND SHALL APPLY REGARDLESS OF WHETHER OR NOT HELIA WAS INFORMED BY THE CLIENT OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES. THE INDEMNIFICATION PROVISION FOUND AT SECTION 18 OF THIS AGREEMENT SHALL APPLY MUTATIS MUTANDIS TO THIS SECTION.
Loss of Service due to Power Failure or Internet Service Outage or Termination or Suspension or Termination by Helia
The Client acknowledges and agrees that if the Services do not function due to power failure, Helia is not responsible or liable for any disruption
in the Services. Further, the Client acknowledges and agrees that the Services require a fully functional broadband connection and that in the
event of an outage of, or termination of service with or by Helia, the Internet service provider and/or broadband provider ("ISP"), the Services
will not function. Should there be an interruption in the power supply or if there is an ISP outage, the Service will not function until power is
restored or the ISP outage is cured. A power failure or disruption may require the Client to reset or reconfigure equipment prior to utilizing the
Services. POWER DISRUPTIONS OR FAILURES OR ISP OUTAGES WILL ALSO PREVENT DIALING TO EMERGENCY SERVICE
NUMBERS INCLUDING THE 911 CALLING FEATURE. Should Helia suspend or terminate Services, the Services will not function until
such time as Helia restores the Services, Helia receives reconnection charges as outlined in the Services Schedule, and all payments for Services
are made to Helia pursuant to this Agreement.
Upon termination of this Agreement, all accrued obligations or liabilities and the provisions which by their nature are intended to extend beyond such termination will remain in effect. Without limiting the generality of the foregoing, the provisions of Sections 16, 17, 18 and 19 shall survive the termination of this Agreement.
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
Any notices herein provided or permitted to be given to any party shall be sufficiently given if (i) mailed by registered mail, postage prepaid, with delivery determined on the date of proof of delivery as indicated by the relevant postal authority, (ii) sent by facsimile with the date of delivery being the date on a facsimile confirmation by the sender, or (iii) in the case of Notices by Helia to the Customer, and not vice versa, electronic mail ("Email") sent to the Client at the email address as provided in the Client Services Summary with the date of delivery being the date on the Email message as indicated in the sender's sent items folder. (a) To deliver or cause to be delivered to the Client at the last known address of the Client premises, the Registered Office of the Client, the facsimile number of the Client, or via Email as provided for in 23(iii) above. (b) To deliver or cause to be delivered to Helia at the head office address and facsimile number posted on the Website.