1. Subscription to Telecommunications Services. The Customer agrees to subscribe for and Convergia agrees to provide the Services as described in the Commercial Summary attached hereto subject to credit approval in accordance with all of the terms and conditions set out or referenced in this Agreement.
THERE ARE IMPORTANT 9-1-1 TERMS RELATED TO THIS SERVICE, PLEASE REVIEW BELOW. BY ACTIVATING THE SERVICE, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, UNDERSTOOD AND AGREES 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.ca OR CUSTOMER CAN CALL CUSTOMER SERVICE FOR A COPY. CUSTOMER’S CONTINUED USE OF THE SERVICES THEREAFTER WILL BE DEEMED ACCEPTANCE BY CUSTOMER OF SUCH CHANGES. PLEASE KEEP CHECKING OUR WEB SITE FOR THE LATEST TERMS AND CONDITIONS.
2. Effective Date and Term. This Agreement shall be effective on the date upon which it is signed by the authorized representative of the last party to sign, and will remain in full force and effect until no Services are provided, and continue in effect for the Term herein above designated. Upon expiration of the initial Term, (or subsequent renewals, as the case may be) this Agreement shall automatically renew for the period of time equal to the original Term, unless terminated by either party in writing at least sixty (60) days before the expiry of any such Term.
3. Charges and Payment. Convergia reserves the right to increase/decrease any long distance termination/organization rate at any time, without any prior notification to its customer. The Customer agrees to pay the rates and charges, including any applicable service charges, other non-recurring charges or feature charges (if any), and applicable taxes for the Services listed in the attached Commercial Summary, and specified in Convergia’s invoices (“Charges”). Convergia will deliver written or electronic notice (“Connection Notice”) to Customer when Service is installed, at which time billing will commence (“Service Commencement Date”). If Convergia cannot complete installation due to Customer delay or inaction, Convergia may begin charging Customer for the Service and Customer shall pay such charges which will appear on Customer’s first invoice following the Service Commencement Date. Charges for any circuits or other recurring charges will be invoiced in advance. Charges for any voice service usage (outbound long distance, tollfree, or calling card) will be invoiced in arrears. Charges not paid when due will bear interest at one and one half percent (1.5%) per month or the highest interest rate allowed by applicable law (“Late Payment Charge”). If the Customer cancels or delays a request for Services before the Service commences, the Customer will be charged Convergia’s actual installation and out-of-pocket costs incurred. The Customer shall not set off or deduct any amount from the Charges due to Convergia. In the case of a recurring Charge that should not have been billed or that was over-billed, the Customer will be credited the excess back to the date of the error, subject to applicable limitation periods provided by law. Non-recurring Charges that should not have been billed or that were over-billed will be credited, provided that the Customer disputes them within sixty (60) days of the date of the invoice and furnishes the appropriate supporting documentation. Failure to dispute an invoice within said 60-day timeframe shall be deemed agreement by Customer as to its contents and shall foreclose Customer’s right to challenge any element of the invoice. Customer acknowledges that Convergia may require billing cycles more frequent than one per per calendar month if Convergia, in its sole option, decides that more frequent billing cycles are necessary to control Convergia’s credit exposure to Customer. Convergia shall invoice Customer for all Services provided on a monthly NET 30 days basis (“Due Date”). Convergia is committed to provide a competitive rate for all your telecommunication services. However, all toll free calls originating from a payphone will have a surcharge of $0.99 per call. As our valued toll tree service customer you will have the option of cancelling the provision of receiving any call from a payphone. Please contact our Customer Care if you want to take this option.
4. Monthly Recurring Charges (MRC). Where applicable, the Customer’s MRC shall be set out in the Commercial Summary attached hereto. The Customer agrees to pay Convergia the MRC as calculated and invoiced by Convergia irrespective of actual usage.
5. Termination. Convergia may suspend or terminate any and all of the Services and require 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; (c) immediately, if the Customer becomes bankrupt or insolvent, or becomes subject to any legislation relating to bankruptcy or insolvency or (d) immediately, if the customer demonstrates unwillingness or inability to pay currently due and/or future service fees. The Customer may terminate this Agreement at any time upon written notice to Convergia and payment of Termination Charge as described in section 6 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.
6. Term. Cancellation and Termination Charge. Except as otherwise provided in this Agreement, if this Agreement is terminated by Convergia for cause as described in section 5 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, 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.
Except as otherwise provided by the applicable law, this Agreement, or the Service Order, (A) Customer may cancel a Service Order (or portion thereof) without cause prior to the delivery of a Connection Notice upon written notice to Convergia identifying the affected Service Order and Service. If Customer does so within ten business days of signing the Agreement or the Service Order, Customer shall pay Convergia a cancellation charge of Convergia’s out of pocket costs and expenses incurred in connection with investments, constructing facilities or purchasing goods and/or services from third parties necessary for Service delivery; (B) Customer may cancel a Service Order (or portion thereof) without cause prior to the delivery of a Connection Notice upon written notice to Convergia identifying the affected Service Order and Service. If Customer does so after ten business days of signing the Agreement or the Service Order, or if Service is terminated by Convergia as the result of Customer’s default, Customer shall pay Convergia a cancellation charge equal to the sum of: (i) third party termination charges related to the cancelled Service; (ii) 25 % of the total monthly recurring charges of the Service Term related to the cancelled Service (calculated by multiplying the applicable monthly recurring charge by the number of months of the applicable Service Term); (iii) the non-recurring charges for the cancelled Service; and (iv) Convergia’s out of pocket costs and expenses incurred in connection with investments, constructing facilities or purchasing goods and/or services from third parties necessary for Service delivery.(C) Customer may terminate specified Service(s) without cause after the delivery of a Connection Notice upon written notice to Convergia. If Customer does so, or if Service is terminated by Convergia as the result of Customer’s default, Customer shall pay Convergia a termination charge equal to the sum of: (i) all unpaid amounts for Service actually provided; (ii) 100% of the remaining monthly recurring charges of the Service Term or renewal term (calculated by multiplying the applicable monthly recurring charges by the number of months remaining in the applicable Service Term); (iii) any uninstallation or deactivation charge(s); and (iv) any termination liability payable to third parties resulting from the termination, as agreed in the Service Order or if not recovered by the foregoing, and any out of pocket costs of construction to the extent such construction was undertaken to provide Services hereunder. Customer agrees that the charges in this Section are a genuine estimate of Convergia’s actual damages and are not a penalty.
6.1 Deposit. Convergia has the right to check Customer’s credit record at any time. Convergia may require Customer to pay a deposit should Convergia determine that the Customer is not credit worthy. Convergia reserves the right to review the Customer’s monthly bills and payment history with Convergia on a weekly basis and, if deemed necessary, may increase the deposit. In addition to its termination rights under sections 5 & 6 of this Agreement, if Customer fails to comply with any security deposit request made by Convergia, Convergia may immediately and without notice suspend provision of the Services.
7. Use of the Services. The Customer will not, nor will it permit others or assist others to, tamper with, alter or rearrange the Services or Convergia’s facilities (or those of its suppliers) required to provide the Services, or otherwise abuse or fraudulently use the Services including, without limitation, using the Services: (a) in any manner which interferes with Convergia’s facilities (or those of its suppliers), network or equipment, or access hereto by other persons; (b) contrary to reasonable instructions communicated to the Customer by Convergia; (c) for any purpose or in any manner, directly of indirectly, in violation of applicable laws or in violation of any third party rights; or (d) in a manner to avoid payment of Charges. The Customer will indemnify and save Convergia harmless from and against all losses, liabilities, penalties, damages of any type, and expenses arising from any act or omission of the Customer, including, without limitation, any use of the Services for any purpose or in any manner contrary to this Agreement. Unless otherwise agreed to in writing with Convergia, the Customer will be responsible for the use and compatibility of all equipment, software and/or services not provided by Convergia (“Non-Convergia Products”), and will be liable for all costs to diagnose and repair problems with the Services caused by Non-Convergia Products. Convergia will not be responsible for: (a) the operation or maintenance of Non-Convergia Products; (b) any act or omission of any other entity furnishing Non-Convergia Products; or (c) any changes in the Services which cause Non-Convergia Products to become obsolete or to require modification or alteration, or is such changes otherwise affect performance of Non-Convergia Products. The Service is only available where CONVERGIA is able to provide such Service.
Use of the 911/E911 Services. Convergia offers on its Digital Line Service a form of 9-1-1 Dialing service (9-1-1 Dialing) that is similar to traditional 9-1-1 (9-1-1) service but has some important differences and limitations when compared with enhanced 9-1-1 Dialing service (E9-1-1) available in most locations in conjunction with traditional telephone service. With both traditional 9-1-1 and E9-1-1 Dialing service, your call is sent directly to the nearest emergency response center. In addition, with E9-1-1 Dialing service, your call back number and address are visible to the emergency response center call-taker. With the Digital Line Service’s 9-1-1 Dialing service, your call is sent to a national emergency call center. The call center operator will confirm your location information and then transfer your 9-1-1 call to the emergency response center nearest your location. You should be prepared to confirm your address and call-back number since the operator may not have that information. Do not hang up unless told directly to do so and if disconnected, you should dial 9-1-1 again. 9-1-1 fee of $1.95 CDN per month per number for the service OR $75.00 USD per call shall apply. You should ensure your location information, when registered with Convergia, is kept current at all times. In case you are not able to speak during the 9-1-1 call, the call taker would dispatch emergency response vehicles to your last registered address. You need to update your 9-1-1 Dialing information if you move your device to a different location and if you add a new line to your account. To update or verify your 9-1-1 Dialing information you will need to contact Convergia directly. Your 9-1-1 Dialing service is activated when you subscribe to Convergia service. 9-1-1 Dialing service will not function in the event of a power or broadband outage or if your broadband, ISP or Digital Line Service is suspended or terminated. Following a power failure or disruption, you may need to reset or reconfigure your Telephone Adapter prior to utilizing the service, including 9-1-1 Dialing. You must update and verify with Convergia’s Customer Care services, your location of use for each changed, newly added or newly ported number in order for 9-1-1 Dialing to function correctly. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 9-1-1 call made utilizing the Service as compared to traditional 9-1-1- Dialing over traditional public telephone networks. You should inform any household residents, guests and other persons who may be present at the physical location where you utilize the Convergia service, of the important differences in and limitations of VoIP 9-1-1 Dialing service as compared with E9-1-1 Dialing service, as set out above.
7.1 Fraud. You agree to notify CONVERGIA immediately, in writing or by calling the CONVERGIA Customer Care at 1.866.669.4357, 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.
7.2 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 98% 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.
Excessive Use of Unlimited Plans is prohibited. “Excessive Use” means that your monthly minute usage is greater than the monthly minutes used by 98% of all individual 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.
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.
8. Equipment. “Equipment” means the equipment provided to Customer by CONVERGIA for the purposes of providing Customer with the Service (“Equipment”). Customer agrees not to change the electronic serial number or equipment identifier of the Equipment, or to perform a reset of the Equipment, without express permission from CONVERGIA in each case. CONVERGIA reserves the right to terminate Customer’s Service should Customer tamper with the Equipment, leaving Customer responsible for the full charges to the end of the current term, including all unbilled charges, all of which immediately become due and payable.
Unless Customer has purchased the Equipment from CONVERGIA, Customer agrees that the Equipment will at all times remain the property of CONVERGIA and that Customer has no right, title or interest therein. If, while in Customer’s care, the Equipment is damaged, lost, stolen, Customer agrees to pay the replacement value of the Equipment. Customer acknowledges that performing a reset of the Equipment without permission from CONVERGIA may cause Service malfunctions and any damage to the Equipment caused by such malfunctions will be Customer’s responsibility.
Customer acknowledges that CONVERGIA’s service may not be compatible with all non-voice communications equipment, including but not limited to home security systems, TTY, medical monitoring equipment, certain versions of TIVo, satellite television systems, PBX, Centrex, other private telephone networks, or computer modems. Customer waives any claim against CONVERGIA for interference with or disruption of these services and equipment, as well as any claim that CONVERGIA is responsible for any disruption to Customer’s business, if applicable.
CONVERGIA will transfer to Customer any transferable warranties or indemnities that the manufacturer of the Equipment or the third party vendor/service provider provides to CONVERGIA. CONVERGIA SHALL HAVE NO LIABILITY TOWARDS CUSTOMER BEYOND THE EXPRESS TERMS OF SUCH MANUFACTURER EQUIPMENT WARRANTIES.
9. Permitted Service Suspension: The Customer agrees that it may be necessary for Convergia to temporarily suspend service for technical or maintenance reasons, the timing of which shall, where possible, be mutually agreed upon in advance. Such a suspension will not be considered an interruption and shall not entail any liability to Convergia. Convergia similarly reserves the right, without incurring liability, to immediately and without notice (a) suspend Services; (b) cancel a request for Services; or (c) temporarily block Services to the Customer if it considers such action necessary to prevent improper use, to protect against fraud or the commission of illegal activities or to otherwise protect its personnel, agents, facilities or services.
FOR VOIP SERVICES, Customer acknowledges and understands that the 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 Service offering provided by CONVERGIA as set out in these Terms and Conditions. 9-1-1 SERVICE ASSOCIATED WITH UVOIP HAS CERTAIN LIMITATIONS COMPARED WITH TRADITIONAL E-1-1, WHICH ARE SET OUT BELOW. IF CUSTOMER DIALS 9-1-1, CUSTOMER 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. CUSTOMER MAY BE REQUIRED TO PROVIDE CUSTOMER’S NAME, TELEPHONE NUMBER AND ADDRESS TO THE CALL CENTRE OPERATOR. CUSTOMER AGREES TO NOTIFY CONVERGIA IMMEDIATELY SHOULD CUSTOMER INTEND TO CHANGE CUSTOMER’S USE OF CUSTOMER’S UVOIP SERVICE, INCLUDING WITHOUT LIMITATION, SHOULD CUSTOMER MOVE THE LOCATION OR MUNICIPAL ADDRESS FROM WHICH CUSTOMER USES CUSTOMER’S UVOIP SERVICE. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT A) SHOULD CUSTOMER CHANGE CUSTOMER’S USE OF CUSTOMER’S UVOIP SERVICE WITHOUT FIRST NOTIFYING CONVERGIA AND/OR B) SHOULD CUSTOMER CHOOSE TO OPERATE CUSTOMER’S SERVICE OUTSIDE OF CUSTOMER’S ADDRESS AS REGISTERED WITH CONVERGIA EITHER TEMPORARILY OR PERMANENTLY, 9-1-1 SERVICE WILL NOT OPERATE PROPERLY AND CUSTOMER’S ABILITY TO ACCESS 9-1-1 SERVICE WILL BE ADVERSELY AFFECTED. CUSTOMER ACKNOWLEDGES AND AGREES 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 CUSTOMER AGREES 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 CUSTOMER MAY SUFFER OR INCUR, ARISING DIRECTLY OR INDIRECTLY OUT OF OR RELATING TO 9-1-1 SERVICE WITH UVOIP. Customer acknowledges and understands that during service outages by Customer’s broadband Internet service provider or for any reason whatsoever, Customer’s UVOIP Service INCLUDING 9-1-1 SERVICE, will not work. Customer acknowledges and understands in the event of a power failure, UVOIP Service, INCLUDING 9-1-1 SERVICE will not work. If there is an interruption in the power supply, the UVOIP Service, INCLUDING 9-1-1 SERVICE, will not function until power is restored. A power failure or disruption may require Customer to re-set or reconfigure Equipment prior to using the UVOIP Service. Customer acknowledges and understands that service outages due to suspension of Customer’s account as a result of billing issues will prevent UVOIP Service, INCLUDING 9-1-1 SERVICE. CONVERGIA does not currently offer Operator Service.
In no event will CONVERGIA, its officers, directors, employees, affiliates or agents or any other service provider who furnishes services or devices to Customer in connection with our service be liable for any damages, including but not limited to personal injury, wrongful death, property damage, loss of data, loss of revenue or profits, or damages arising out of or in connection with the use or inability to use a device or the service, including inability to access emergency service personnel through the 911 dialing service or to obtain emergency help. These limitations apply to claims founded in breach of contract, breach of warranty, product liability, tort, and any and all other theories of liability. These limitations apply whether or not CONVERGIA was informed of the likelihood of any particular type of damages. Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply.
CONVERGIA disclaims all responsibility for the conduct of local emergency response centers and the national emergency calling center. CONVERGIA does not have any control over any local emergency response center. Therefore, CONVERGIA is not responsible for whether they answer calls using the 911 dialing service, how they answer these calls, or how they handle them. CONVERGIA relies on third parties to assist in routing 911 dialing calls to local emergency response centers and to a national emergency calling center. CONVERGIA is neither liable nor responsible if the data used by a third party to route calls is incorrect or produces an erroneous result. Neither CONVERGIA nor its officers or employees may be held liable for any claim, damage, or loss, fine, penalty, cost, and expense (including, without limitation, attorneys fees) by, or on behalf of, Customer or any third party or user of CONVERGIA’s service, relating to CONVERGIA’s service, including, without limitation, 911 Dialing, or CONVERGIA’s device.
10. Limitation and Exclusion of Liability. Except as otherwise provided herein, Convergia’s total cumulative liability, if any, to the Customer or any third party for damages related to this Agreement, for any cause whatsoever, including damages arising directly or indirectly from a breach of this Agreement (including a fundamental breach or otherwise), negligence, any act or omission of Convergia or its representatives, or under any other theory of law or equity will be limited to those damages actually proven as directly attributable to Convergia, and will in no event exceed the lesser of: (i) $25,000.00; or (ii) the total in aggregate of the monthly Charges paid by the Customer during the period such damages were incurred, such period not to exceed three (3) months, for the specific Services that allegedly give rise to the damages. Under no circumstances will Convergia be liable to the Customer or any third party for: (a) any indirect, special, consequential, incidental, economic or punitive damages, including, without limitation, loss of data, loss of income, loss of profit or failure to realize expected savings or loss of use of any information system arising directly or indirectly from breach of contract (including fundamental breach or otherwise), negligence, any act of omission of Convergia or its representatives, or under any other theory of law or equity, even if Convergia had been advised if, had knowledge of, or reasonably could have foreseen, the possibility of such damages; (b) any act or omission of the Customer or any carrier other than Convergia or its carrier suppliers; (c) any claims or actions related to defamation, copyright or trademark infringement, or the violation of any third party rights, arising form the Customer’s use of Services; (d) infringement of patents arising from combining or using Customer-provided facilities with Services or Convergia’s facilities (or those of its suppliers); or (e) any unauthorized use of the Services.
11. Indemnification. CUSTOMER AGREES 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 CUSTOMER. THE PROVISIONS OF THIS SECTION SHALL SURVIVE TERMINATION OF THESE TERMS AND CONDITIONS.
12. Notices. Any and all notices under this Agreement will be sufficiently given if personally served or sent by mail or facsimile and delivered as follows: (a) for notices to the Customer, at the billing address specified on the first page of this Agreement unless otherwise instructed by written notice or at the address where the Customer’s monthly invoice is sent; and (b) for notices to Convergia, at the address specified in Convergia’s invoices. Any such notices, if delivered personally or by facsimile, will be deemed to have been received the same day, or if sent by mail, will be deemed to have been received three (3) business days after the date of mailing. Notwithstanding the foregoing, notice by Convergia of any changes to the Charges or any other term of this Agreement may be in the form of an insert accompanying, or a notice on, Convergia’s invoice. The Customer’s continued use of the Services after notification will constitute acceptance of any such changes.
13. 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 Customer or a transfer of license of Intellectual Property from CONVERGIA to Customer.
14. General Provision. The Customer will not assign part or all of this Agreement except with the prior written consent of Convergia, which consent shall not be unreasonably withheld. Convergia may assign all or part of this Agreement to an affiliate without the consent of the Customer. This Agreement will be binding upon, and will inure to the benefit of, the parties and their respective successors and permitted assigns. If the Customer consists of more than one person, the obligations of the persons constituting the Customer will be joint and several. This Agreement will be governed by, and interpreted in accordance with, the applicable laws of the State where Customer receives the Services, or if Customer receives the Services in many States, then by the applicable laws of the States in which the Customer resides or is headquartered. This Agreement (including any applicable tariffs to which the Services are or may become subject and such notices or documents referenced herein or provided to the Customer during the Term) represents the entire agreement between Convergia and the Customer regarding the provision of the Services and, the parties agree that same supersedes all prior agreements, undertakings, representations and proposals, oral or written, and all other communications between them relating to the Services. Convergia will not be responsible for performance of, or deemed to be in default of, any obligation or provision of this Agreement where delayed or hindered by events beyond its reasonable control, including but not limited to: embargoes, labor disruptions, failure of underlying suppliers to Convergia, civil disturbances, acts of civil or military authorities, accidents, fires, power failures, Acts of God, natural disasters or other catastrophes, or any legal order, regulation, ordinance or requirement of any government or other legal body having jurisdiction. Any provision (or part thereof) of this Agreement that is unenforceable at law will be ineffective to the extent of such unenforceability without invalidating the remaining provisions (or parts thereof) of this Agreement. No failure by Convergia to exercise any right under this Agreement or to insist upon full compliance by the Customer with its obligations hereunder will constitute a waiver of any provision of this Agreement.
CONVERGIA may change the terms and conditions of this agreement from time to time. By subscribing to CONVERGIA’s service, Customer agrees that CONVERGIA may provide to Customer by use of electronic communications required notices, agreements, and other information concerning CONVERGIA, including changes to this agreement. CONVERGIA may give Customer notice of a change by posting the change on the home page of Convergia.com, on Customer’s account web page or monthly bill, in a newsletter, by e-mail, on the relevant web page of the applicable service, or by other permitted communication. Such notices will be considered given and effective on the date posted. These changes will become binding on Customer on the date they are posted and CONVERGIA is not required to give Customer further notice in order for Customer to continue using our service. By continuing to use the service after revisions are in effect, Customer accepts and agrees to all revisions. If Customer does not agree to the changes, Customer must terminate his/her service immediately. Disconnection fees and recovery fees will not be applicable to termination of service due to increases in service plan prices or other material changes if Customer’s account is in good standing and Customer calls CONVERGIA to terminate within 30 days after posted notice of the change.
This Agreement has been drawn up in English at the request of the parties. Les parties ont convenu que la présente entente soit rédigée en anglais.
1. Subscription. The Customer agrees to subscribe for and Convergia agrees to provide the Services as described in the Commercial Summary above subject to credit approval in accordance with all the terms and conditions set out or referenced in this Proposal/Agreement.
This Commercial Summary incorporates the Proposal referenced above and, together with such Proposal, forms an integral part of the Master Customer Agreement (“MCA”) entered between Convergia and Customer as of mm/dd/yyyy. (if applicable)
2. Services. Convergia shall provide the services described in the COMMERCIAL SUMMARY above and subject to the terms and conditions of this Commercial Proposal and such products and/or services shall be considered “Services” for the purposes of the MCA. Delivery and use of such Services shall be subject to (1) the terms of this Commercial proposal, (2) any policies and documentation provided or made available by Convergia to users of the Services and (3) any applicable laws or regulations. Convergia may prohibit any use of the Services it believes may be in violation of the foregoing.
3. Servicing, Warranties and Limitation of Liability.
a) Convergia will use commercially reasonable efforts to provide the support services outlined in this Proposal as well as Section Customer Support and Service Level Commitment below and, except for the foregoing, the Services are provided “as is”.
(b) Services may be temporarily unavailable for Agreement maintenance or for un-Agreement emergency maintenance or because of other causes beyond Convergia’s reasonable control, but Convergia shall use reasonable efforts to provide advance notice in writing or by e-mail of any Agreement service disruption, however, Convergia does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that many be obtained from the use of the Services. In addition, Convergia is not responsible for any error that has its origin in a third-party network, Customer’s equipment or systems or any other factor outside of Convergia’s control that may affect such Services.
c) Convergia does not guarantee uninterrupted working of its service and/or equipment provided. Therefore, Convergia shall not be liable to any person or persons for damages resulting from mistakes; omissions, interruptions, delays, errors or defects in transmission, failures or defects in equipment or from any other causes, provided however that in any such case, Convergia shall perform under the terms of this Agreement.
4. Customer Support and Service Level Commitment.
(a) Definitions. The following terms will have the following meanings:
(a.i) “Business Day” means a day in which Convergia operates regular Business Hours.
(a.ii) “Business Hours” means 08:30 – 17:30 EST Monday through Friday, excluding Convergia’s standard office closure dates.
(a.iii) “Critical Incident” means the Services are interrupted, or performance is so severely degraded that Customer cannot reasonably use the services.
(a.iv) “Major Incident” means the Services are operating with limited capabilities, which significantly impacts Customer’s use of the services.
(a.v) “Minor Incident” means the Services are operating with some minor defects which do not significantly impact Customer’s use of the services.
(a.vi) “MTTR” means a measure of the maintainability of repairable items. It represents the average time required to repair a failed component or device.
(b) Customer Support Availability. Customer can submit service requests via phone or email to the Convergia Customer Support organization, or using the online ticketing system, which is available 24 hours a day, 365 days a year. Requests will be treated as follows:
Support tool for Customer 1st line support
24 hours, 365 days a year
Access to Support by phone for Critical and Major incidents
During Business Hours
MTTR start time
Incident declaration time on Support tool during next Business Hours
MTTR Critical incident
8 Business Hours
MTTR Major incident
16 Business Hours
MTTR Minor incident
10 Business Days
5. Exclusions. All parts replacement and maintenance labor required to restore system performance further to any one or more of the conditions listed hereafter is not covered by this Agreement, and will be performed by Convergia and invoiced in accordance with the then current Convergia rates for such travel, labor and replacement components:
• Improper use.
• Service interruptions, Services degradation or implementation delay due to force majeure, fortuitous events, uprisings, public disturbances, or events for which the Customer, its employees or agents/representatives are responsible.
• Strike, riot, or other act outside Convergia’s control.
• Service interruptions caused by power feed failures; Customer Equipment not provided by Convergia.
• Service interruptions during time frames when the Customer does not allow testing, repair or maintenance.
• Interruptions due to Customer negligence, including provision of inaccurate information and lack of utilization of agreed procedures.
• Implementation delay due to erroneous Orders.
• Delay in Service restoration due to Customer or third-party omissions.
6. Trouble reporting. All Customers’ requests for maintenance service shall be telephoned into Convergia’s Service Centre at + 1 855 783-7399, or by email at [email protected]
This number is connected directly to Convergia’s Service Centre during normal working hours and is connected to an answering service.
7. Responsabilities of the consumer.
a. Allow (local or remote) access to the equipment as required by maintenance personnel.
b. The Customer will follow operating procedures as specified in manufacturer operating manuals.
8. Professional services. Professional Services, if provided, shall be at an additional cost based on Convergia’s standard rates in effect at the time.
9. Governing laws. This Agreement shall be constructed and interpreted in accordance with the Laws of Canada.
This section governs the access to mobile communications for M2M/IoT applications.
1. Service provision. Convergia performs the services within the boundaries of its technical and operational capabilities. The mobile communications services are provided by Convergia based on wholesale services provided by licensed mobile network operators.
2. No reselling. The Customer is not permitted to make the services available to third parties for their sole use or commercial use or to otherwise pass them to third parties without the prior written permission of Convergia. In particular, the Customer is not entitled to act as a provider of telecommunications services using the SIM cards and services provided by Convergia.
3. Illegal use. The services may not be used abusively or in any other illegal manner in violation of legal prohibitions in Canada, USA or in the respective place of use. Convergia shall be entitled, in the event of serious breaches by the Customer, to block the services at the Customer’s expense, without the Customer being exempted from the obligation to pay the agreed charges in this respect.
4. Additional fees and charges. Unless explicitly otherwise stated in the commercial proposal, any SIM lifecycle event, SIM usage, network integration or configuration change will incur additional charges, for example and not limited to, the following will incur additional charges to the Customer:
• SIM card purchase
• SIM activation
• Data traffic
• SMS sent and received
• Voice calls made and received
• SMS sent from and to the SIM management portal
• Static IP address allocated to the SIM
• Private APN
• VPN service
• Plan changes
5. Service specific terms and conditions.
• SIM termination is irreversible, if a SIM is terminated in error, a replacement SIM is required, the new SIM will have a new ICCID, IMSI and MSISDN
• Convergia offers a Global SIM, as such the Mobile number allocated to the SIM (MSISDN) does not necessarily belong to the country where the SIM will be located.
6. Other considerations.
a) Loss, Theft or Fraud.
In the case of SIM Cards, these are associated with Customer’s account prior to shipment. Customer is responsible for paying for all usage by its SIM Cards and for all activities involving those SIM Cards. If Customer believes that any of its SIM Cards has been lost or stolen or is being used fraudulently, Customer should notify Convergia immediately by email and include as much information as it can about the issue (number of SIM Cards involved, original order number, actual SIM ID number if available, the date on which the loss or fraudulent use began). Customer may cancel SIM Cards or request that Convergia cancel any SIM Cards by opening a support ticket, any usage of such lost or stolen Sim cards will be your full responsibility and does not except you from payment, as you will be billed for such usage until Sim cards are cancelled.
If Customer requests that Convergia ships SIM Cards to any destination outside Convergia operating countries, Customer will be the importer of record and will be responsible for all customs, duties or other fees payable. Customer will not export any SIM Cards or related technical data to any country for which an export license or governmental approval is necessary without first obtaining the license or approval and will not provide SIM Cards to any person with whom business may not be legally be transacted under any applicable law or regulation.