TIERRANORTE TECHNOLOGIES INC. TERMS OF SERVICE
September 1, 2007
This Agreement constitutes the contract by and between TierraNorte Technologies Inc. ("we," "us", “TierraNorte Technologies Inc.”, “TNT” or "WaveHello®") and the Subscribers ("you" or "Subscriber") to WaveHello®’ Voice over Internet Protocol communication services ("Service"). The Service is an alternative to traditional telephone service. This Agreement controls both the Service and any devices used in conjunction with the Service such as, without limitation, an Internet Protocol phone, Multimedia Terminal Adapter, Analog Telephone Adapter, or any other Internet Protocol connection device ("Device" or "Equipment").
WaveHello® will, from time to time, update, revise, supplement, and otherwise modify this Agreement. These modifications (collectively called “Additional Terms”) shall be considered given and effective on the date posted at www.WaveHello.com and shall be, when posted, incorporated into this Agreement. The Agreement as modified by any and all Additional Terms supersedes all previously agreed-to Agreements, including, without limitation, any terms included in the packaging of any Device provided by WaveHello®. You agree to periodically visit www.WaveHello.com, read the latest version of this Agreement, and to contact WaveHello® should you have any questions or concerns regarding the Additional Terms. Your continued use of the Service constitutes your understanding and acceptance of the Agreement as modified by all Additional Terms.
1. EMERGENCY SERVICES - 911 DIALING
1.1 Non-Availability of Traditional 911 or E911 Dialing Service. The Service does not support traditional 911 or E911 access to emergency services in all locations. Where we do not offer traditional 911 or E911 access, we offer a feature known as "911 Dialing" which is a limited emergency calling service available only on WaveHello®-provided Devices or Equipment. WaveHello’s 911 Dialing feature is not automatic; you must separately take affirmative steps, as described in this Agreement and on our website, to register the address where you will use the Services in order to activate the 911 Dialing feature. You must do this for each WaveHello® phone number that you obtain. Activation of the E911 service is not optional and is a mandatory step in our signup process. You shall inform any household residents, guests and other third persons who may be present at the physical location where you utilize the Service of (i) the non-availability of traditional 911 or E911, and (ii) the important differences in and limitations of the WaveHello® 911 Dialing feature as compared with traditional 911 or E911 dialing.
1.2 Registration of Physical Location Required. For each phone number that you use for the Service, you must register with WaveHello® the physical location where you will be using the Service with that phone number. When you move the Device to another location, you must register your new location. If you do not register your new location, any call you make using the 911 Dialing feature may be sent to an emergency center near your old address. You will register your initial location of use when you subscribe to the Service.
1.3 Confirmation of Activation Required. Your 911 Dialing feature will not be activated for any phone line that you are using with the Service, unless and until you receive an email from us confirming that the 911 Dialing feature has been activated for that phone line.
1.4 How Emergency Personnel are contacted. We contract with a third party to use the address of your registered location to determine the nearest emergency response center and then forward your call to a general number at that center. When the center receives your call, the operator will not have your address and may not have your phone number. You must therefore provide your address and phone number in order to get help. Some local emergency response centers may decide not to have their general numbers answered by live operators 24 hours a day. If we learn that this is the case, we will send your call instead to a national emergency calling center and a trained agent will contact an emergency center near you to dispatch help. You hereby authorize us to disclose your name and address to third-party service providers, including, without limitation, call routers, call centers and public service answering points, for the purpose of dispatching emergency services personnel to your registered location.
1.5 Service Outages.
(a) Service Outages Due to Power Failure or Disruption. 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to utilizing the Service, including 911 Dialing. (b) Service Outages Due to Internet Outage or Suspension or Termination of Broadband Service or ISP Service. Service outages or suspensions or terminations of service by your broadband provider or ISP will prevent all Service, including 911 Dialing, from functioning. (c) Service Outage Due to Suspension or Termination of your WaveHello® Account. Service outages due to suspension or termination of your account will prevent all Service, including 911 Dialing, from functioning. (d) Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts. Your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. In that event, provided that you alert us to this situation, we will attempt to work with you to resolve the issue. During the period that the ports are being blocked or your Service is impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Service, including the 911 Dialing feature, may not function. You acknowledge that WaveHello® is not responsible for the blocking of ports by your ISP or broadband provider or any other impediment to your usage of the Service, and any loss of service, including 911 Dialing, that may result. In the event you lose service as a result of blocking of ports or any other impediment to your usage of the Service, you will continue to be responsible for payment of the Service charges unless and until you terminate the Service in accordance with this Agreement. (e) Other Service Outages. If there is a Service outage for any reason, such outage will prevent all Service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement.
1.6 Re-Activation Required if You Change Your Number or Add or Port New Numbers. 911 Dialing does not function if you change your phone number or if you add or port new phone numbers to your account, unless and until you successfully register your location of use for each changed, newly added or newly ported phone number.
1.7 Network Congestion; Reduced Speed for Routing or Answering 911 Dialing Calls. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Service as compared to traditional 911 dialing over traditional public telephone networks.
1.8 Possible Lack of Automatic Number Identification. It may or may not be possible for the local emergency personnel to automatically obtain your phone number when you use 911 Dialing. Our system is configured to send the automatic number identification information; however, one or more telephone companies, not us, route the traffic to the emergency response center and that center may not be capable of receiving and passing on that information. As a result, the operator who answers your 911 Dialing call may not be able to automatically obtain your phone number and call you back if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your phone number, or if the Service is not operational for any reason.
1.9 No Automated Location Identification. In most service areas, it is not possible at this time to transmit to the local emergency response center the address that you registered for 911 Dialing. You will need to state the nature of your emergency promptly and clearly, including your location (and possibly your telephone number), as the operator will not have this information. Emergency personnel will not be able to find your location if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your location, or if the Service is not operational for any reason.
1.10 Disclaimer of Liability and Indemnification. We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither WaveHello® nor its officers or employees may be held 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 our 911 Dialing service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless WaveHello®, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel.
1.11 Alternate 911 Arrangements. If you are not comfortable with the limitations of the 911 Dialing service, you should consider having an alternate means of accessing traditional 911 or E911 services or terminating the Service.
1.12 911 Dialing service is not compatible with any Softphone.
2. SERVICE PLANS
2.1 THE WaveHello® HOSTED BUSINESS SERVICE PLAN
2.2 The Service. The WaveHello® HOSTED BUSINESS SERVICE PLAN provides you with a single line of service per month for incoming and outgoing calls. In order to use the Service you must first establish, maintain, and pay for a broadband connection to the Internet through an internet service provider. The Service is provided to you as a small business user. You shall not resell or transfer the Service to another party without our prior written consent. You are prohibited from using the Service for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that you have at any time used the Service for any of the aforementioned or similar activities.
2.3 Service Distinctions. The Service is not a “telecommunications service” per se, and is provided solely on a best efforts basis. Important legal distinctions exist between a telecommunications service and the Service we provide. Each is subject to different regulatory treatment which may limit or otherwise affect your rights of redress before regulatory agencies.
2.4 Term. Service under the WaveHello® HOSTED BUSINESS SERVICE PLAN is on a monthly basis for a term that begins on the date WaveHello® activates your Service and ends on the day before the same date the following month. Subsequent terms of this Agreement automatically renew on the 1st of every month on a prorated basis unless and until you give us written notice of non-renewal at least 10 days before the end of the monthly term in which the notice is given. You may provide written notice of termination to WaveHello® via e-mail to billing@WaveHello.com, or by mailing your notice of termination to:
WaveHello® Customer Service
1239 B Manahan Ave.
Winnipeg, Manitoba, Canada
R3T 5S8
2.5 Calculation of the Term. The WaveHello® HOSTED BUSINESS SERVICE PLAN is for full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you shall be responsible for the full month's charges to the end of the then-current term, including, without limitation, unbilled charges, plus a disconnection fee, if applicable, all of which will immediately become due and payable. You shall also be responsible for the next full month's charges in the event that you do not provide the requisite ten-day notice of termination prior to the expiration of the then-current term. Expiration of the term or termination of Service will not excuse you from paying all accrued and unpaid charges due under this Agreement.
2.6 Charges. All the following charges are denominated in Canadian dollars. You agree to pay WaveHello® $29.95 per month in exchange for each single line of Service per month:
* $1.25 for each call you make to WaveHello’s directory assistance
* $0.30 for each payphone call made to you through the Service
* all taxes and fees arising or resulting from your subscription to or use of the Service
* all charges imposed on WaveHello® for toll-free calls you make through the Service
* any termination fees
* any international usage charges
*.045 per minute long distance rate to anywhere in the U.S. and Canada
2.7 Fees. You agree to pay a one-time Service activation fee of $39.95 per line/extension, and a one-time $25.00 per device configuration fee for onsite installation, if you choose to have a WaveHello® technician come to your location and install the device (IP Phone or ATA).
2.8 THE WaveHello® HOME SERVICE PLAN
2.9 The Service. The WaveHello® HOME SERVICE PLAN provides you with a single line of service per month for incoming and outgoing calls. In order to use the Service you must first establish, maintain, and pay for a broadband connection to the Internet through an internet service provider. The Service is provided to you as a home user. You shall not resell or transfer the Service to another party without our prior written consent. You are prohibited from using the Service for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that you have at any time used the Service for any of the aforementioned or similar activities.
2.10 Service Distinctions. The Service is not a “telecommunications service” per se, and is provided solely on a best efforts basis. Important legal distinctions exist between a telecommunications service and the Service we provide. Each is subject to different regulatory treatment which may limit or otherwise affect your rights of redress before regulatory agencies.
2.11 Term. Service under the WaveHello® HOME SERVICE PLAN is on a monthly basis for a term that begins on the date WaveHello® activates your Service and ends on the day before the same date the following month. Subsequent terms of this Agreement automatically renew on the 1st of every month on a prorated basis unless and until you give us written notice of non-renewal at least 10 days before the end of the monthly term in which the notice is given. You may provide written notice of termination to WaveHello® via e-mail to billing@WaveHello.com, or by mailing your notice of termination to:
WaveHello® Customer Service
1239 B Manahan Ave.
Winnipeg, Manitoba, Canada
R3T 5S8
2.12 Calculation of the Term. The WaveHello® HOME SERVICE PLAN is for full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you shall be responsible for the full month's charges to the end of the then-current term, including, without limitation, unbilled charges, plus a disconnection fee, if applicable, all of which will immediately become due and payable. You shall also be responsible for the next full month's charges in the event that you do not provide the requisite ten-day notice of termination prior to the expiration of the then-current term. Expiration of the term or termination of Service will not excuse you from paying all accrued and unpaid charges due under this Agreement.
2.13 Charges. All the following charges are denominated in Canadian dollars. You agree to pay WaveHello® $24.95 per month in exchange for a single line of Service and:
*$0.045 per minute long distance rate to anywhere in the U.S. and Canada
* $1.25 for each call you make to WaveHello’s directory assistance
* $0.30 for each payphone call made to you through the Service
* all taxes and fees arising or result from your subscription to or use of the Service
* all charges imposed on WaveHello® for Toll-Free calls you make through the Service
* any termination fees
* any international usage charges
2.14 Fees. You agree to pay a one-time Service activation fee of $39.95 per line.
2.15 Billing. You are solely responsible for all fees and charges incurred through use of the Service even if you are not the one who actually used the Service. You agree that WaveHello® can charge all its fees and charges at least monthly, in advance, to your credit or debit card. We reserve the right to bill at more frequent intervals if the amount you owe to us at any time exceeds $51. Any usage charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found on our website. You further agree that WaveHello® can, in its sole and absolute discretion, charge all fees and charges as they accrue or in any subsequent months’ bill. Your authorization for WaveHello® to charge your credit card shall remain valid until 30 days after we receive written notice from you terminating our authority to charge your credit or debit card. You may provide such notice via e-mail to billing@WaveHello.com. Upon receipt, we will charge your credit or debit card for the disconnection fee, if applicable, and all other outstanding fees and charges and then terminate your Service.
2.16 Termination. WaveHello® may, in its sole and absolute discretion, suspend or cease providing the Service, or your access to the Service, at any time. If so, you are liable only for those fees and charges incurred up to the date of termination. We may also terminate your Service at any time if any charge to your credit or debit card is declined or reversed, your credit or debit card expires and you have not provided us with a valid replacement, or in case of any other non-payment of fees or charges. If your Service is terminated by WaveHello® due to non-payment or for any violation by you of this Agreement, you remain fully liable for all fees and charges under this Agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and attorneys’ fees.
2.17 Billing Disputes. If you dispute any charge made by WaveHello® on any billing statement that you receive, you must notify us in writing within 30 days after receiving that statement. You agree that all fees and charges WaveHello® charges against your debit or credit card that are uncontested after 30 days are valid and due and owing. All notices of disputed charges should explain the dispute in reasonable detail and be sent to billing@WaveHello.com or to:
WaveHello® Billing Department
1239 B Manahan Ave.
Winnipeg, Manitoba, Canada
R3T 5S8
You agree to notify us in writing immediately if you become aware at any time that your Service is being stolen, fraudulently used, or otherwise being used in an unauthorized manner. Until such time as we receive notice of the theft, fraudulent use, or unauthorized use, you shall be liable for all use of the Service.
2.18 Privacy. WaveHello® uses, in whole or in part, the public Internet and third party networks to provide its Service. WaveHello® encrypts and makes its best effort to secure the communications it transmits through the Service. WaveHello® is not liable, therefore, for any lack of privacy, or any consequence due to any lack of privacy, due to your use of the Service. Please refer to our Privacy Policy at www.WaveHello.com for details.
3.0 LIMITATIONS OF SERVICE
3.1 The Service is personal to you. You may not sell, assign, license, or otherwise transfer any of your rights in the Service to any other party. WaveHello® may, for business, technical, or any other purposes, sell, assign, or license its rights in this Agreement.
3.2 Residential/Home and Hosted Business Plan use. The WaveHello® HOME SERVICE PLAN is provided solely for your residential use. Under all Service Plans you are prohibited from using the Service for auto-dialing, continuous or extensive call forwarding, telemarketing including, without limitation, charitable or political solicitation or polling fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that your use of the Service is, or at any time was, inconsistent with normal residential usage patterns. You agree to pay our higher rates for commercial service for all periods in which your use of the Service was inconsistent with normal residential use. You agree that this Agreement does not create a joint venture, partnership, agency, or any other cooperative business relationship between you and WaveHello®.
3.3 The Service requires an Internet connection. You acknowledge that the Service depends upon you establishing, maintaining, and paying for a Broadband connection to the Internet. You agree to continue to pay for the Service, until properly terminated, if your Internet connectivity is malfunctioning, is suspended, or is itself terminated. You acknowledge and understand that the Service does not function in the event of power failure.
3.4 Prohibited Purposes. WaveHello® may terminate your Service if we determine, in our sole and absolute discretion, that you have used the Service for an unlawful purpose, in a manner that violates this Agreement, or is in any way threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, or is similar to those behaviors. If your Service is terminated under this provision, all outstanding fees and charges and all termination-related fees and charges immediately become due and payable. In addition, we may forward the relevant communication and any other information, including your personally identifiable information, to the appropriate authorities for investigation and potential prosecution. You shall not attempt to hack or otherwise disrupt the Service or make any use of the Service that is inconsistent with its intended purpose. You hereby consent to our forwarding of all such communications and information to these authorities.
3.5 Limitations on certain calls. The Service does not support 0+ or operator assisted calling, including, without limitation, collect calls, third party billing calls, or calling card calls. Other than the limited E911 access described above, the Service may not support 311, 511, or other x11 calls or calls to 900 numbers or other pay-per-call services.
3.6 Telephone numbers. All telephone numbers provided to you by WaveHello® shall be leased and not sold. You agree not to use any such number with any device other than the Device with which you access the Service. The numbers you obtain from us will not be listed in any telephone directories.
3.7 Incompatibility with other services. The Service may not be compatible with out-dialing services such as your home security system, medical monitoring equipment, facsimile machines, and satellite and interactive television systems. You may be required to maintain a telephone connection through your local exchange carrier in order to use these other services.
3.8 Use of the Service outside Canada. If you use the Service outside Canada, you are solely responsible for any violations of local laws and regulations resulting from such use and all fees and charges incurred by you or WaveHello® for such use.
4.0 GENERAL PROVISIONS
4.1 No Service disruption. You agree not to attempt to hack, or in any way disrupt the Service or make any use of the Service that is inconsistent with your normal use of the Service. You agree not to attempt to alter or alter your service without our prior written consent. We reserve the right to terminate your Service if we believe, in our sole and absolute discretion, that you have engaged in any of these acts.
4.2 Intellectual Property rights. Subject to the intent and terms of this Agreement, WaveHello® grants you a revocable, nontransferable, and nonexclusive license to use the software through which the Service is provided and the software and inventions imbedded or manifest in any device provided to you. You agree this license is strictly limited to only those uses necessary to utilize the Service for your use. You agree not to reverse compile, disassemble, or reverse engineer or otherwise attempt to derive the source code from the binary code of any WaveHello®-provided firmware or software. Nothing in this Agreement grants you any right or license to own or use any trademark owned or licensed by WaveHello®.
4.3 Devices. We reserve the right to prohibit your use of any interface device that we have not provided to you. You hereby represent and warrant that you possess all required rights, including software and firmware licenses, to use any interface device that we have not provided to you. In addition, you shall indemnify and hold us harmless against any and all liability arising out of your use of such interface device with the Service.
4.4 Service Disruption. WaveHello® will attempt to promptly resolve any situation or condition that has caused a Service interruption to the extent the fault involves our network. You acknowledge and agree that the Service is provided “AS IS.” Credit allowances for Service interruption will be provided only in WaveHello’s sole and absolute discretion. WaveHello® will occasionally perform maintenance activities to maintain or improve the Service. These activities include, without limitation, tests, adjustments and inspections, and substituting, changing, or rearranging equipment or facilities. These activities will occur both on a scheduled basis and in response to unanticipated Service-affecting events. WaveHello® will use commercially reasonable efforts to restrict these activities to after business hours.
4.5 Release of Information. WaveHello® will produce all information and communications in its possession, custody, and control responsive to law enforcement subpoenas, and court orders. WaveHello® is not obligated to disclose to you those demands for information or its activities in compliance with those demands. WaveHello® may, moreover, disclose all information and communications in its possession, custody, and control if necessary to protect its rights and property and in the case where failure to disclose the information or communication may harm or potentially harm its customers or others.
5.0 LIMITATIONS OF LIABILITY
5.1 Limitation of liability due to technical difficulties. WaveHello® shall not be liable for any delay or failure to provide the Service, including E911 access, at any time or from time to time, or any interruption or degradation of voice quality caused by any of the following:
* an act or omission of an underlying carrier, service provider, vendor or other third party; equipment, network, or facility failure; equipment, network, or facility upgrade or modification
* force majeure events such as, but not limited to, acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism, and government actions
* equipment, network, or facility shortage
* power failures of third party providers
* equipment or facility relocation
* service, equipment, network, or facility failure caused by the loss of power to you
* outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of the Service caused by any third party
* any act or omission by you or any person using the Service or device provided to you;
* or any other cause beyond our control, including, without limitation, a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications, including, without limitation, E911 access, to be connected or completed, or forwarded.
Our aggregate liability shall in no event exceed the fees and charges accrued by you during the period of time your harm allegedly occurred.
5.2 Disclaimer of Liability for Damages. IN NO EVENT SHALL TIERRANORTE TECHNOLOGIES INC., ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER 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 THE SERVICE, INCLUDING INABILITY 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 OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
5.3 Content. You shall be liable for any and all liability that relates to or arises out of the content transmitted by you or by any person, whether authorized or unauthorized, who uses the Service. You shall assure that your and your User's use of the Service and content complies at all times with all applicable laws, regulations, and written and electronic instructions for use.
5.4 No Third Party Beneficiaries. No provision of this Agreement provides any person or entity that is not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action, or creates any other third party beneficiary rights.
5.5 No Warranties on Service. TIERRANORTE TECHNOLOGIES INC. MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR DEVICE 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 YOUR REQUIREMENTS. WE DO NOT WARRANT THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY, OR LOSS OF CONTENT, DATA, OR INFORMATION. NEITHER TIERRANORTE TECHNOLOGIES INC. NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS SHALL BE LIABLE FOR THE UNAUTHORIZED ACCESS TO OUR OR YOUR TRANSMISSION FACILITIES OR PREMISES OR EQUIPMENT OR FOR THE UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT, OR DESTRUCTION OF, YOUR DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF TIERRANORTE TECHNOLOGIES INC. OR ITS AGENT’S NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY TIERRANORTE TECHNOLOGIES INC. OR TIERRANORTE TECHNOLOGIES’ AGENTS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
6.0 MISCELLANEOUS PROVISIONS
6.1 Governing Law. This Agreement and the relationship between you and us, is governed by the laws of the Province of Manitoba without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 6.2, you shall submit to the personal and exclusive jurisdiction of the courts located within the Province of Manitoba and waive any objection as to venue or inconvenient forum.
6.2 Dispute Resolution. All disputes arising from or relating to this Agreement, or the Service that cannot be resolved between the parties shall be resolved by arbitration before a single arbitrator and administered by the Arbitration and Mediation Institute of Manitoba in accordance with its Commercial Arbitration Rules in effect on the date of the filing of the claim. THIS PROVISION CONSTITUTES A WAIVER OF YOUR RIGHT TO A JURY TRIAL. Regardless of any law to the contrary, all such claims shall be brought no later than one year after the first event complained of, occurred. If the parties cannot agree on a location for the arbitration, the arbitration shall take place in Winnipeg, Manitoba. Upon stipulation of the parties, the arbitration may take place via teleconference or videoconference. Unless the parties stipulate otherwise, discovery shall be limited to one Request for Documents, one Request for Admissions, and one Set of Interrogatories, each of which shall be limited to no more than 15 requests, including subparts. The propounding party shall bear the cost of complying with its requests. The arbitrator shall strictly construe these discovery limitations. In deciding the merits of the dispute, the arbitrator shall be bound by the plain meaning of the documents entered into evidence. The arbitrator’s decision shall be final and binding. Without limiting the foregoing, the parties agree that the arbitrator cannot: (i) award relief in excess of what this Agreement provides or (ii) award punitive or exemplary damages. The arbitrator shall award costs and reasonable attorneys’ fees to the prevailing party. You shall 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.
6.3 No Waiver of Rights. TierraNorte Technologies’ failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
6.4 Entire Agreement. This Agreement, including all Additional Terms, constitutes the entire agreement between you and TierraNorte Technologies Inc. This Agreement supersedes all prior agreements between you and TierraNorte Technologies Inc. and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
6.5 Severability. If any part of this Agreement is declared invalid or unenforceable by a court of competent jurisdiction, all other parts of this Agreement shall remain valid and enforceable. Such invalidity or non-enforceability shall not invalidate or render unenforceable any other portion of this Agreement.
