General. For the purpose of these Terms and Conditions and related agreements and forms, “You” and “Your” includes an applicant, person, customer and the user of this service, corporation or other type of business, organization, legal entity, which has subscribed for Service. The term “service” means CONVERGIA’s Business Services and Solutions as described and authorized in the application forms (“Service” or “Services”). “Equipment” means the equipment provided to You by CONVERGIA for the purposes of providing You with the Service (“Equipment”).
THERE ARE IMPORTANT 9-1-1 TERMS RELATED TO THIS SERVICE, PLEASE REVIEW BELOW. BY ACTIVATING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO THE TERMS AND CONDITIONS. THE TERMS AND CONDITIONS MAY BE CHANGED AND UPDATED FROM TIME TO TIME BY CONVERGIA. CONVERGIA WILL POST UPDATED TERMS AND CONDITIONS ON ITS WEBSITE AVAILABLE AT WWW.CONVERGIA.COM OR YOU CAN CALL CUSTOMER SERVICE FOR A COPY. YOUR CONTINUED USE OF THE SERVICES THEREAFTER WILL BE DEEMED ACCEPTANCE BY YOU OF SUCH CHANGES. PLEASE KEEP CHECKING OUR WEB SITE FOR THE LATEST TERMS AND CONDITIONS.
1. Term and Termination. The term of this contract commences on the date CONVERGIA activates Your Service (“Commencement Date”) and will continue for the remaining months (“Initial Term”), as indicated in the Service application forms. You agree that the Service will automatically renew at the expiry of the Initial Term for subsequent one year terms (“Renewal Terms”), unless You give CONVERGIA written notice of non-renewal at least thirty (30) days before the end of the Initial Term and/or subsequent Renewal Terms. You may cancel Service before the end of the Initial Term and/or Renewal Terms, provided that You give CONVERGIA thirty (30) days prior written notice and provided that You pay CONVERGIA a cancellation fee equal to fifty percent (50%) of the average monthly usage, where usage is applicable, and one hundred percent (100%) of the monthly recurring charge for the Service, the whole multiplied by the number of months remaining in the unexpired portion of the Initial Term and/or Renewal Terms in effect at the time. The Initial Term and/or Renewal Terms are sometimes collectively referred to herein as the “Term”.
2. Use of Service. You agree to use the Service and Equipment only for lawful purposes. CONVERGIA reserves the right to terminate the Service immediately and without prior notice if CONVERGIA, in its sole discretion, believes that You have violated this clause, leaving You responsible for the full charges to the end of the Term, including all unbilled charges, all of which shall become immediately due and payable. You are liable for any and all use of the Service and/or Equipment by any person making use of the Service and/or Equipment provided to You and agree to indemnify and hold harmless CONVERGIA against any and all liability for any such use that does not comply with this Section. You agree not to resell, transfer or assign the Service (or the Equipment, if You have not purchased the Equipment) to any other person for any purpose, or charge for any use of the Service, without prior written consent of CONVERGIA.
3. Equipment. You agree not to change the electronic serial number or equipment identifier of the Equipment, or to perform a reset of the Equipment, without the express written consent of CONVERGIA. CONVERGIA reserves the right to terminate Your Service should You tamper with the Equipment, leaving You responsible for the full charges to the end of the current term, including all unbilled charges, all of which shall become immediately due and payable.
Unless You have purchased the Equipment from CONVERGIA, You agree that the Equipment will at all times remain the property of CONVERGIA and that You have no right, title or interest therein. In the event Services are terminated and You have not purchased the Equipment from CONVERGIA, You must return the Equipment to CONVERGIA within five (5) days of termination date, otherwise CONVERGIA will charge the value of the Equipment to Your account and You will be responsible for such payment. If, while in Your care, the Equipment is damaged, lost, stolen, or if, in CONVERGIA’s sole discretion, the Equipment is returned in an unusable condition, You agree to pay the replacement value of the Equipment. If, in CONVERGIA’s sole discretion, the Equipment is not damaged beyond repair, CONVERGIA will repair or cause to be repaired such Equipment at Your cost and expense, whether or not owned by You. You acknowledge that performing a reset of the Equipment without permission from CONVERGIA may cause Service malfunction and You will be responsible for any damages to the Equipment caused by such malfunction.
4. Fraud. You agree to notify CONVERGIA immediately, in writing or by calling the CONVERGIA Customer Care at 1-888-501-8430, if the Equipment is stolen or if You become aware at any time that Your Service is being stolen or fraudulently used. When You call or write, You must provide Your account number and a detailed description of the circumstances of the Equipment theft or fraudulent use of Service. Failure to do so in a timely manner may result in the termination of Your Service and additional charges to You. You will be liable for all such stolen or fraudulent use of the Service.
5. Local Calling for CONVERGIA Local Service. Free local calling is limited to a maximum 10,000 local minutes per month. In the event of excess usage, additional charges will apply and CONVERGIA reserves the right to suspend or terminate Service.
5.1 Fair Usage Policy. This policy is designed to prevent fraud and abuse by a small number of users. Convergia’s unlimited plans and features are to be used for non-commercial use only and by only the account holder and the staff members, at the place listed under the account holder location. Because over 99% of Convergia unlimited calling plan customers use less than 2000 minutes per month and do not have any unusual usage patterns, a customer’s aggregate usage may be considered outside of normal and reasonable use if it exceeds 2000 minutes per month in combination with other factors that may adversely impact other Convergia customer or Convergia network. Convergia plans have maximum reasonable call duration of 2 hours per call, after which time the call will be disconnected. Unlimited plans are subject to an aggregated limit (outgoing, call forwarding, conferencing etc) of all usage and features of 2000 minutes during each monthly billing cycle for inclusive calls. Incoming and Convergia to Convergia calls are excluded from this policy.
Convergia reserves the right to either suspend your Service and offer you an alternative call plan or terminate your Service if we determine, in our sole and absolute discretion, that your use of the Service or at any time was, inconsistent with normal average usage patterns of other Convergia customers. All usage minutes over 2000 minutes will be billed on a per minute basis based on the rates for the destination country being called. If we deem your use of our Services for commercial use, you will be required to pay our higher rates for Business Plans for all periods in which your use of the Service was inconsistent with normal use or the Reasonable Usage limits described herein.
- Using subscriptions for telemarketing or call centre operations;
- Re-selling subscription minutes;
- Sharing subscriptions between users whether via a PBX, call centre, computer or any other means;
- Calling numbers (whether singly, sequentially or automatically) to generate income for yourself or others as a result of placing the call, other than for your individual business communications; and
- Unusual calling patterns inconsistent with normal, individual subscription use, for example, regular calls of short duration or calls to multiple numbers in a short period of time.
Other practices may be relevant in determining Legitimate Use and Convergia reserves the right to take any unlawful, prohibited, abnormal or unusual activity into account in making its determination. Convergia may at its option, terminate its relationship with you, or may suspend your subscription immediately if it determines you are using your subscription contrary to this fair usage policy. Where reasonable, Convergia will provide you with notice of improper usage before suspension or termination of your subscription and, if appropriate, Convergia may offer you an alternative subscription.
6. National Long Distance Calling for CONVERGIA Long Distance Service. National long distance is limited to a maximum of 2500 minutes. In the event of excess usage, additional charges will apply and CONVERGIA reserves the right to suspend or terminate Service.
7. SERVICE LIMITATIONS FOR CONVERGIA’S DIGITAL LOCAL SERVICE.
a) NOT A TELEPHONE SERVICE. You acknowledge and understand that the Digital Service is not a telephone service. The Service connects to the Internet, and not a telephone line. There are IMPORTANT DIFFERENCES between telephone service and the Digital Service offering provided by CONVERGIA as set out in these Terms and Conditions.
b) 9-1-1 SERVICE ASSOCIATED WITH YOUR SERVICE(S) HAS CERTAIN LIMITATIONS COMPARED WITH TRADITIONAL 9-1-1, WHICH ARE SET OUT BELOW.
c) IF YOU DIAL 9-1-1, YOU WILL BE AUTOMATICALLY ROUTED TO A SPECIALIZED CALL CENTRE THAT HANDLES EMERGENCY CALLS. THE CALL CENTRE IS DIFFERENT FROM THE PUBLIC SAFETY ANSWERING POINT (PSAP) THAT WOULD ANSWER A TRADITIONAL EMERGENCY CALL. YOU MAY BE REQUIRED TO PROVIDE YOUR NAME, TELEPHONE NUMBER AND ADDRESS TO THE CALL CENTRE OPERATOR.
d) YOU AGREE TO NOTIFY CONVERGIA IMMEDIATELY SHOULD YOU INTEND TO CHANGE YOUR USE OF YOUR SERVICE, INCLUDING WITHOUT LIMITATION, SHOULD YOU MOVE THE LOCATION OR MUNICIPAL ADDRESS FROM WHICH YOU USE YOUR SERVICE.
e) YOU UNDERSTAND AND ACKNOWLEDGE THAT A) SHOULD YOU CHANGE YOUR USE OF YOUR SERVICE WITHOUT FIRST NOTIFYING CONVERGIA AND/OR B) SHOULD YOU CHOOSE TO OPERATE YOUR SERVICE OUTSIDE OF YOUR MUNICIPAL ADDRESS, AS REGISTERED WITH CONVERGIA, EITHER TEMPORARILY OR PERMANENTLY, 9-1-1 SERVICE WILL NOT OPERATE PROPERLY AND YOUR ABILITY TO ACCESS 9-1-1 SERVICE WILL BE ADVERSELY AFFECTED.
f) YOU ACKNOWLEDGE AND AGREE THAT CONVERGIA ITS AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS AND UNDERLYING CARRIERS, WILL NOT BE LIABLE FOR ANY INJURY, DEATH OR DAMAGE TO PERSONS OR PROPERTY, ARISING DIRECTLY OR INDIRECTLY OUT OF, OR RELATING TO THE 9-1-1 SERVICE AND YOU AGREE TO INDEMNIFY AND HOLD HARMLESS CONVERGIA (AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND UNDERLYING CARRIERS) FOR ANY LIABILITIES, CLAIMS, DAMAGES, LOSSES AND EXPENSES, (INCLUDING REASONABLE LEGAL FEES AND EXPENSES) WHICH YOU MAY SUFFER OR INCUR, ARISING DIRECTLY OR INDIRECTLY OUT OF OR RELATING TO 9-1-1 SERVICE WITH CONVERGIA
g) SERVICE OUTAGES. You acknowledge and understand that during service outages by Your broadband Internet service provider or for any reason whatsoever, Your Service, INCLUDING 9-1-1 SERVICE, will not work.
h) LOSS OF SERVICE DUE TO POWER FAILURE. You acknowledge and understand in the event of a power failure, Your Service, INCLUDING 9-1-1 SERVICE will not work. If there is an interruption in the power supply, the Service, INCLUDING 9-1-1 SERVICE, will not function until power is restored. A power failure or disruption may require You to reset or reconfigure Equipment prior to using the Service.
i) SERVICE OUTAGE DUE TO SUSPENSION OF YOUR ACCOUNT. You acknowledge and understand that service outages due to suspension of Your account as a result of billing issues will prevent Your Service, INCLUDING 9-1-1 SERVICE.
j) OPERATOR SERVICES CURRENTLY NOT AVAILABLE. CONVERGIA does not currently offer Operator Service.
9. Provision of Service. The Service is only available where CONVERGIA is able to provide such Service. All Services and the associated rates are subject to change. You acknowledge and agree that CONVERGIA may conduct a preliminary check to determine if the Service is available in Your area. CONVERGIA is not required to provide Service to You where: 1) CONVERGIA would have to incur unusual expenses for which You will not pay; including but not limited to special construction; 2) You owe amounts to CONVERGIA that are past due other than as a guarantor; 3) You do not provide credit information satisfactory to CONVERGIA or a reasonable deposit.
10. Payments and Billing. Fixed and variable charges are payable monthly. You are responsible for payment to CONVERGIA of charges for all Service(s) and Equipment furnished to You as described and agreed in the Service application forms. A late payment charge applies when payment has not been received thirty (30) days after the date of the statement of account for Service. This charge is a monthly compounded rate of 1.5%. An administrative fee will be charged for any payments returned for non-sufficient-funds (“NSF”). No charge disputed by You can be considered past due unless CONVERGIA, in its sole discretion, has reasonable grounds for believing that the purpose of the dispute is to evade or delay payment. You acknowledge that CONVERGIA will not issue cheques for refunds for amounts lower than ten dollars ($10.00). In the alternative, You agree that any refunds lower than ten dollars ($10.00) will be credited against Your account. Unless there has been deception with regard to a charge, You are not responsible for paying a previously unbilled or under billed charge except where: 1) in the case of a recurring charge it is correctly billed within a period of one year from the date it was incurred; or 2) in the case of a non-recurring charge, it is correctly billed within a period of one hundred and fifty (150) days from the date it was incurred. In the case of a recurring charge that should not have been billed or that was over billed, You will be credited with the excess back to the date of the error, subject to applicable limitation periods provided by law. However, if You do not dispute the charge within one hundred and fifty (150) days of the date of an itemized statement which shows that charge correctly, CONVERGIA will not credit such charge for the period prior to that statement. Non-recurring charges that should not have been billed or that were over billed will be credited, provided that You dispute such charges within one hundred and fifty (150) days of the date of the bill. Additional terms and conditions apply for e-billing. Please ask customer service for details.
11a) Convergia may suspend or terminate any and all of the Services and required payment of a termination charge as described in section 6 below: (a) if the Customer defaults in the payment of Charges and such default continues for a period of ten (10) days after written notice to the Customer; (b) if the Customer is in default of a material obligation under this Agreement and such default continues for a period of thirty (30) days after written notice to the Customer; or (c) immediately, if the Customer becomes bankrupt or insolvent, or becomes subject to any legislation relating to bankruptcy or insolvency. The Customer may terminate this Agreement at any time upon written notice to Convergia and payment of Termination Charge as described in section (11.b) below. Upon termination of such Services, all Charges will become immediately due and payable and will, at such time, be subject to the Late Payment Charge. Termination of the Services will not relieve the Customer from any liability, including amounts owed to Convergia, accrued prior to or at the time that such termination become effective.
11b) Termination Charge. Except as otherwise provided in this Agreement, if this Agreement is terminated by Convergia for cause as described in section (11.a) above or by the Customer prior to the expiration of the Term, the Customer will pay Convergia, in a single payment as liquidated damages for early termination of this Agreement and not as a penalty, a Termination Charge. “Termination Charge” means an amount equal to one hundred percent (100%) of the average of Customer’s monthly usage since the Effective Date and its MRC, multiplied by the number of months remaining in the Term following the effective date of termination, in addition to all of Customer’s monthly recurring charges for circuits multiplied by the number of months remaining in the Term following the effective date of termination, in addition to all of Customer’s monthly recurring charges for circuits multiplied by the number of months remaining in the Term, and a lump sum representing the aggregate of: a) any installation or one-time charges; b) any charges waived or discounts given in consideration of commitments made by Customer to the Service Term; c) any outstanding amounts due and payable under the Hardware Charges, as set forth in the Commercial Summary; and d) any cost which Convergia is liable to pay to third parties for the remainder of the applicable Term. For term contract Digital Line Services, “Termination Charge” means a one time one hundred and fifty dollar ($150.00) termination charge. The Termination Charge shall be payable on the effective date of any and all terminations.
12. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY. It is agreed and understood that the Services provided by CONVERGIA to You may be through third party providers and as such, You understand and agree to the following LIMITATIONS OF LIABILITY:
CONVERGIA, AND ITS AFFILIATES, DIRECTORS, EMPLOYEES AND AGENTS PROVIDE THE SERVICE(S) “AS-IS” AND MAKE NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND IN CONNECTION WITH ITS NETWORK, ITS SERVICES, ITS EQUIPMENT OR ITS PRODUCTS AS CONTEMPLATED HEREIN, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND ARE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEREBY EXCLUDED. THE PARTIES AGREE THAT CONVERGIA, AND ITS AFFILIATES, DIRECTORS, EMPLOYEES AND AGENTS, SHALL IN NO EVENT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE OR ANY OTHER DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, REGARDLESS OF THE FORESEEABILITY THEREOF, ARISING OUT OF THE PROVISION OF ANY SERVICE(S) OR IN ANY WAY ARISING OUT OF THESE TERMS AND CONDITIONS AND ANY RELATED AGREEMENTS, WHETHER IN AN ACTION ARISING OUT OF BREACH OF CONTRACT, BREACH OF WARRANTY, DELAY, NEGLIGENCE, STRICT TORT LIABILITY, PATENT OR INTELLECTUAL PROPERTY MATTERS OR ANY OTHER LEGAL OR EQUITABLE THEORY. HOWEVER, IN THE EVENT A COURT OF COMPETENT JURISDICTION FINDS CONVERGIA LIABLE, YOUR EXCLUSIVE REMEDY AND CONVERGIA’S SOLE LIABILITY, FOR DAMAGES FOR ANY CAUSE WHATSOEVER, REGARDLESS OF FORM OF ACTION, INCLUDING NEGLIGENCE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE PRICE OF SERVICES PURCHASED BY YOU DURING THE ONE (1) MONTH PERIOD PRECEDING THE EVENT WHICH CAUSED THE DAMAGES OR INJURY. NO ACTION OR PROCEEDING AGAINST CONVERGIA MAY BE COMMENCED MORE THAN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO SUCH CLAIM. THE PROVISIONS OF THIS SECTION SHALL SURVIVE TERMINATION OF THESE TERMS AND CONDITIONS.
13. INDEMNIFICATION. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS CONVERGIA, ITS AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AND SUPPLIERS FROM AND AGAINST ALL CLAIMS, LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE LEGAL FEES, RESULTING FROM ANY BREACH OF THESE TERMS AND CONDITIONS BY YOU. THE PROVISIONS OF THIS SECTION SHALL SURVIVE TERMINATION OF THESE TERMS AND CONDITIONS.
14. CONVERGIA Intellectual Property. CONVERGIA and/or its affiliates and licensors are the exclusive owners of all names, trade-marks, tradenames, service marks and any copyright material relating to the Services (“Intellectual Property”). Nothing in these Terms and Conditions contemplates or creates permission of use of Intellectual Property for any marketing or advertisement by You or a transfer of license of Intellectual Property from CONVERGIA to You.
15. Notices and Other Communications. Any notice or other communication will be in writing and will be provided by personal delivery or by e-mail or facsimile to CONVERGIA or You as applicable, at the e-mail address or regular address or facsimile number as set forth in Your service order(s). Notices delivered in person will be effective on the date of such delivery. Notices delivered by e-mail or facsimile will be effective on the date of transmission provided printed proof of transmission is obtained.
16. Assignment. You may not assign, resell or transfer the Service to a third party without the prior written consent of CONVERGIA.
17. No Waiver. The terms and provisions of these Terms and Conditions may only be waived in writing signed by CONVERGIA. No failure by CONVERGIA to insist upon Your performance of any obligation in these Terms and Conditions will constitute a waiver of the obligation.
18. Severability. The invalidity, illegality or unenforceability of any one or more provisions of these Terms and Conditions will not impair any other provision in these Terms and Conditions.
19. Jurisdiction. These Terms and Conditions and any related agreements will be governed in all respects by the laws of the State of New York.