1. SERVICE
1.1.1 Term for Monthly Plans
Service is offered on a monthly basis for a term, which begins on the date that Dolphin Tel activates your Service. This Agreement will automatically renew on a monthly basis unless you provide written notice of cancellation to Dolphin Tel at least ten (10) days before the end of your current monthly term.
1.1.2 Term for Freedom / Business Advantage Plan
Service is offered on a 12 month (one year) basis for a term, which begins on the date that Dolphin Tel activates your Service. This Agreement will automatically renew on a monthly basis thereafter unless you provide written notice of cancellation to Dolphin Tel at least ten (10) days before the end of your current term. Client requested early termination of the service before the completion of the term will result in a $100.00 cancellation fee.
1.2.1 Residential Use
If you are subscribing to Dolphin Global Tel Residential services, the Service and Device are provided to you as a residential user, for your personal, residential, non-business and non-professional use. You cannot use the Service or Device for any commercial or governmental activities, profit-making or non-profit, including but not limited to home office, business, sales, tele-commuting, telemarketing (including without limitation charitable or political solicitation or polling), autodialing, continuous or extensive call forwarding, bulk faxing or any other commercial activities. Residential accounts placing more than 20 inbound or outbound calls in any 24 hour period, or having more than 2500 minutes of usage in any calendar month, will be reviewed for excessive use patterns and may be terminated for such excess. You cannot resell or transfer the Service or the Device to any other person for any purpose, or make any charge for the use of the Service. Dolphin Tel reserves the right to immediately terminate or modify the Service, if Dolphin Tel determines, in its sole discretion, that Customer's Service is being used for non-residential or commercial use. NOTE: Long Distance Dolphin Calls to Cell Phone numbers Outside Canada and the Mainland USA are NOT Included in ANY Dolphin Unlimited Calling Plan Accounts.
1.2.2 Business Use
If you are subscribing to Dolphin Tel's Small Business services, the Service and Device are provided to you as a small business user. You cannot resell or transfer the Service or the Device to any other person for any purpose, or make any charge for the use of the Service. You cannot use the Service or the Device for auto-dialing, continuous or extensive call forwarding, telemarketing (including without limitation charitable or political solicitation or polling), bulk faxing or any other activity that will result in excessive use of the Service. Dolphin Tel reserves the right to immediately terminate or modify the Service, if Dolphin determines, in its sole discretion, that Customer's Service is being used for any of the aforementioned activities.
1.3 Prohibited Use of Service and Device
Dolphin Tel reserves the right to terminate your Service without notice if you violate any of the following acceptable use policies.
1.3.1 Compliance to Local Laws
You cannot to use Dolphin Tel Service and Device for transmitting or receiving any communication or material of any kind that would (i) constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. Dolphin Tel reserves the right to terminate your service immediately and without advance notice if Dolphin Tel, in its sole discretion, believes that you have violated any of the above restrictions. You further agree that Dolphin Tel may forward your personal information or any communications you made through Dolphin to appropriate authorities for investigation and prosecution if we believe that you have violated any of the above restrictions. You agree to indemnify and hold harmless Dolphin Tel against any liability resulting from misuse of your Service and Device.
1.3.2 Unauthorized Use of Firmware or Software
Any Device provided to you will contain firmware or software protected by trademark, copyright or other intellectual property laws. You agree to use the firmware or software only to receive the Service. Dolphin will not provide any passwords, codes or other information or assistance that would allow you to use the Device for any other purpose.
You will not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
1.3.3 Unauthorized Use of Device or Service
You will not erase or modify any serial numbers or equipment identifiers on the Device. You will not perform a factory reset of the Device.
1.4 Loss of Power or Internet Access
You acknowledge and understand that the Service does not function in the event of power failure and that the Service requires a fully functional broadband / highspeed connection to the Internet (which is not provided by Dolphin Tel). In the event that there is an interruption of service by your Internet service provider ("ISP"), you will continue to be billed for the Service until you terminate the Service in accordance with this Agreement.
1.5 Theft of Service
You agree to notify Dolphin Tel immediately, in writing or by calling the Dolphin Tel customer support line, if the Device 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 Device 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. Until such time as Dolphin Tel receives notice of the theft or fraudulent use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen Service or fraudulent use of the Service.
1.6 Return of Device
The Device must be returned to Dolphin Tel within seven (7) days of the termination of Service or a $5 per day late charge will apply, up to a maximum of $125. Returned Device must be in the original packaging and in original working condition. It must also include all components, manuals and registration card(s). If Device is lost or is returned incomplete or damaged, a $120.00 fee will apply. You are solely responsible for the cost and risk of return shipping of Device to us.
1.7 Service Difference
You acknowledge and understand that the Service is not the
same as telephone service. The Service is subject to different
regulatory treatment than telephone service. This treatment
may limit or otherwise affect your rights of redress before
Federal or Provincial telecommunications regulatory agencies.
2. EMERGENCY SERVICES- 911 DIALING
You acknowledge and understand that the Dolphin Tel 911 Dialing
Service is a non-traditional roving mobile service and as
such as limitations. Those limitations may include, but are
not limited to, the ability to contact and request local Emergency
services. Dolphin Tel Emergency 911 Dialing service area is
limited to Canada and the continental United States of America.
Limitations of the Internet itself are also shared by Dolphin
Tel services including 911 Dialing. If you require traditional
non-roving 911 or E911 access to emergency services, you are
solely responsible for finding alternative communication services
that provide these services.
3. CHANGES TO THIS AGREEMENT
Dolphin Tel may change the terms and conditions of this Agreement
at any time. Such changes will become effective and binding
once posted on to the "Terms & Conditions" section of Dolphin
Tel website at http://www.dolphintel.com and no further notice
by Dolphin Tel is required.
4. CHARGES / PAYMENTS / DEFAULT / TAXES
/ TERMINATION
4.1 Billing
To ensure that your credit card or bank account is valid and
that we are able to collect payment after our products and
services are rendered, an amount of $125 will be pre-authorized
from your credit card company or bank. This pre-authorization
will NOT result in any charges to your credit card or bank
account immediately and will only be used in the event that
your default payment for your account. If the card expires,
you close your account, your billing address changes, or the
card is cancelled and replaced owing to loss or theft, and
you must advise Dolphin Tel at once. All charges, applicable
taxes and surcharges will billed monthly in advance. Monthly
packages require the last month's payment in advance, such
payments paid in advance towards regular monthly service plans
are non-refundable. All for usage-based charges, which will
be billed monthly in arrears. All amounts due will be charged
to your credit card or bank account automatically. Dolphin
Tel reserves the right to bill at more frequent intervals
if the amount due at any time exceeds $50. 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 Dolphin Tel's website.
4.2 Billing Disputes
You must notify DolphinTel in writing within 7 days after
receiving your credit card statement if you dispute any DolphinTel
charges on that statement or such dispute will be deemed waived.
Billing disputes should be notified to the following:
By Mail:
DolphinTel
Billing Department
200 – 6960 Royal Oak Ave,
Burnaby, BC
V5J 4J2 Canada
or
By E-Mail:
billing@dolphinTel.com
4.3 Payment
DolphinTel accepts payments only by credit card as set forth
in Section 4.1. Your initial use of the Service authorizes
DolphinTel to charge the credit card account number on file
with DolphinTel, including any changed information given DolphinTel
if the card expires or is replaced, or if you substitute a
different card, for DolphinTel charges as set forth in Section
4.1. This authorization will remain valid until 30 days after
DolphinTel receives your written notice terminating DolphinTel
authority to charge your credit card, whereupon DolphinTel
will charge you the disconnect fee and any other outstanding
charges and terminate the Service. DolphinTel may terminate
your Service at any time in its sole discretion, if any charge
to your credit card on file with DolphinTel is declined or
reversed, your credit card expires and you have not provided
DolphinTel with a valid replacement credit card or in case
of any other non-payment of account charges. Termination of
Service for declined or expired card, reversed charges or
non-payment leaves you FULLY LIABLE to DolphinTel for ALL
CHARGES ACCRUED BEFORE TERMINATION and for all costs incurred
by DolphinTel in collecting such amounts, such as (but not
limited to) collection costs and attorney's fees.
4.4 Termination/Discontinuance of Service
Dolphin Tel reserves the right to suspend or discontinue providing the Service at any time in its sole discretion. Suspension, disruption, or termination, or Service will also result in the inability to use Dolphin Tel's 911 Dialing Services. If Dolphin Tel terminates the Service without reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month's charges. If your Service is terminated because you have violated the terms of this Agreement, you will be responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, including but not limited to, outstanding Long Distance charges, and any potential fees relating to the return of the Device.
5. WARRANTY and LIABILITY LIMITATIONS / INDEMNIFICATION
5.1 Limitation of Liability
DolphinTel shall not be liable for any delay or failure to
provide the Service, including 911 dialing, at any time or
from time to time, or any interruption or degradation of voice
quality that is caused by any of the following:
1) act or omission of an underlying carrier, service provider,
vendor or other third party;
2) equipment, network or facility failure;
3) equipment, network or facility upgrade or modification;
4) force majeure events such as (but not limited to) acts
of god; strikes; fire; war; riot; government actions;
5) equipment, network or facility shortage;
6) equipment or facility relocation;
7) service, equipment, network or facility failure caused
by the loss of power to Customer;
8) outage of Customer's ISP or broadband service provider;
9) act or omission of Customer or any person using the Service
or Device provided to Customer; or
10) any other cause that is beyond DolphinTel's control, including
without limitation a failure of or defect in any Device, the
failure of an incoming or outgoing communication, the inability
of communications (including without limitation 911 dialing)
to be connected or completed, , or degradation of voice quality.
DolphinTel's aggregate liability for (i) any failure or mistake;
(ii) any claim with respect to DolphinTel's performance or
nonperformance hereunder or (iii) any DolphinTel act or omission
in connection with the subject matter hereof shall in no event
exceed Service charges with respect to the affected time period.
5.2 Disclaimer of Damages
IN NO EVENT SHALL DOLPHIN GLOBAL TEL, ITS OFFICERS, DIRECTORS,
EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER
WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS
AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL,
INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES,
OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS
OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT
OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE,
INCLUDING INABILITY TO BE ABLE TO DIAL 911 OR TO ACCESS EMERGENCY
SERVICE PERSONNEL THROUGH THE SERVICE. 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 DOLPHIN
GLOBAL TELWAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR
TYPE OF DAMAGES.
5.3 Indemnification
Customer agrees to defend, indemnify, and hold harmless DolphinTel,
its officers, directors, employees, affiliates and agents
and any other service provider who furnishes services to Customer
in connection with this Agreement or the Service, from any
and all claims, losses, damages, fines, penalties, costs and
expenses (including, without limitation, reasonable attorneys
fees) by, or on behalf of, Customer or any third party or
user of Customer's Service, relating to this Agreement, the
Services, including 911dialing, or the Device. This paragraph
shall survive termination of this Agreement.
5.4 No Warranties on Service
DOLPHINTEL MAKES NOF WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR
NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE,
COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY
THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS. WITHOUT
LIMITING THE FOREGOING, DOLPHIN GLOBAL TEL DOES NOT WARRANT
THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION,
ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA
OR INFORMATION. NEITHER DOLPHIN GLOBAL TEL NOR ITS OFFICERS,
DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE
PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER
IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE WILL BE LIABLE
FOR UNAUTHORIZED ACCESS TO DOLPHIN GLOBAL TEL'S OR CUSTOMER'S
TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED
ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S
DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT,
FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS
OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF DOLPHIN GLOBAL
TEL'S OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS
AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY,
BY DOLPHIN GLOBAL TEL OR DOLPHIN GLOBAL TEL'S AGENTS OR INSTALLERS
ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
5.5 No Warranties, or Limited Warranties, for Devices
If Customer purchased the Device new from DolphinTel and the
Device included a limited warranty at the time of purchase,
Customer must refer to the separate limited warranty document
provided with the Device for information on the limitation
and disclaimer of certain warranties. Remedies for breach
of any such warranties will be limited to those expressly
set forth in such documentation. If Customer's Device did
not include a limited warranty from DolphinTel at the time
of purchase, Customer agrees that it accepts its Device "as
is" and that Customer is not entitled to replacement
or refund in the event of any defect, except that for Retail
Customers only, DolphinTel will provide a limited warranty
on the Device as to manufacturing defects only for a period
of one (1) year from the date of purchase. This Retail Customer
limited warranty shall not apply to any defect or failure
other than a manufacturing defect, and, without limiting the
generality of the foregoing, shall not apply to any defect
caused by damage in transit, retailer handling or Retail Customer
handling. Retail Customer's sole remedy for any breach of
this Retail Customer limited warranty is to obtain a repaired
or replacement Device, by following the return procedures
set forth in Section 1.8. Retail Customer must include with
the returned Device a letter stating that the Retail Customer
is returning the Device for warranty repair or replacement
and stating the nature of the defect. This Retail Customer
limited warranty shall also apply in lieu of the limited warranty
included with the Device if such included limited warranty
is less favorable to Retail Customer than that contained herein..
OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH
IN DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER
LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, DOLPHIN GLOBAL
TEL MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND
SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS
OF THE 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, DEVICE
OR ANY FIRMWARE OR SOFTWARE IS "ERROR FREE" OR WILL
MEET CUSTOMER'S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED
TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH
IN THE DOCUMENTATION PROVIDED WITH THE DEVICE.
5.6 No Third Party Beneficiaries
No provision of this Agreement provides any person or entity
not a party to this Agreement with any remedy, claim, liability,
reimbursement, or cause of action or creates any other third
party beneficiary rights.
5.7 Content
You are liable for any and all liability that may arise out
of the content transmitted by or to you or Users using the
Services. You shall assure that your or User's use of the
Services and content will at all times comply with all applicable
laws, regulations and written and electronic instructions
for use. DolphinTel reserves the right to terminate or suspend
affected Services, and/or remove your or Users' content from
the Services, if DolphinTel determines that such use or content
doer not conform with the requirements set forth in this Agreement
or interferes with DolphinTel's ability to provide Services
to you or others or receives notice from anyone that your
or Users' use or Content may violate any laws or regulations.
DolphinTel's actions or inaction under this Section shall
not constitute review or approval of your or Users' use or
Content. You will indemnify and hold DolphinTel against any
and all liability arising from the content transmitted by
or to you or to Users using the Services. A "User"
means any person, whether authorized or unauthorized, using
the Service and/or Device provided to you.
6. GOVERNING LAW / RESOLUTION
OF DISPUTES
6.1 Mandatory Arbitration
Any dispute or claim between Customer and DolphinTel arising
out of or relating to the Service or Device provided in connection
with this Agreement shall be resolved by a arbitration organization
of DolphinTel's choosing. The arbitration shall take place
in Vancouver, BC, Canada and shall be conducted in English.
The arbitrator's decision shall follow the plain meaning of
the relevant documents, and shall be final and binding. Without
limiting the foregoing, the parties agree that no arbitrator
has the authority to: (i) award relief in excess of what this
Agreement provides; or (ii) award punitive or exemplary damages.
Judgment on the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof. All claims shall
be arbitrated individually and Customer will not bring, or
join any class action of any kind in court or in arbitration
or seek to consolidate or bring previously consolidated claims
in arbitration. CUSTOMER ACKNOWLEDGES THAT THIS ARBITRATION
PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.
6.2 Governing Law
The Agreement and the relationship between you and DolphinTel
shall be governed by the laws of British Columbia, Canada.
To the extent court action is initiated to enforce an arbitration
award or for any other reason consistent with Section 6.1,
you and DolphinTel agree to submit to the personal and exclusive
jurisdiction of the courts located within the province of
British Columbia, Canada.
6.3 Entire Agreement
This Agreement and the rates for Services found on DolphinTel
website constitute the entire agreement between you and DolphinTel
and govern your use of the Service, superseding any prior
agreements between you and DolphinTel and any and all prior
or contemporaneous statements, understandings, writings, commitments,
or representations concerning its subject matter. No amendment
to this Agreement shall be binding upon DolphinTel unless
and until posted in accordance with Section 3 hereof.
6.4 Severability
If any part of this Agreement is legally declared invalid
or unenforceable, all other parts of this Agreement are still
valid and enforceable. Such invalidity or non-enforceability
will not invalidate or render unenforceable any other portion
of this Agreement.
7. PRIVACY
DolphinTel Service utilizes, in whole or in part, the public
Internet and third party networks to transmit voice and other
communications. DolphinTel is not liable for any lack of privacy
which may be experienced with regard to the Service.
