Terms of Service

GENERAL

For the purposes of these Terms and Conditions of Service (“Terms and Conditions” or “Terms of Service”),

“Service” or “Services” means LooneyCall long distance voice services (“LooneyCall”) that the Company provides to you.

“User” includes any person (including but not limited to You), firm, corporation or other entity that utilizes the Service(s) or otherwise through Your codes, authorization or other means of access to the Service. Derivative terms such as “Usage” and “Use” will have corresponding meanings.

“Company”, “Us” or “Our” means Yak Communications (Canada) Inc.

“You” means the authorized user of the LooneyCall Service. Derivative terms such as “Your” will have corresponding meanings.

THESE TERMS AND CONDITIONS MAY BE CHANGED AND UPDATED FROM TIME TO TIME BY THE COMPANY. THE COMPANY WILL POST UPDATED TERMS AND CONDITIONS ON ITS WEBSITE (WWW. LOONEYCALL.CA) AND MAY ADDITIONALLY GIVE YOU NOTICE OF ANY CHANGES BY LETTER OR IN YOUR MONTHLY BILL. YOUR CONTINUED USE OF THE RELEVANT SERVICES THEREAFTER WILL BE DEEMED ACCEPTANCE BY YOU OF SUCH CHANGES. PLEASE KEEP VISITING OUR WEB SITE FOR THE LATEST TERMS AND CONDITIONS.

THE LOONEYCALL PRIVACY POLICY IS INCORPORATED HEREIN BY REFERENCE AND FORMS AN INTEGRAL PART OF THESE TERMS AND CONDITIONS. You can read our Privacy Policy at http://www.looneycall.ca.

THESE TERMS AND CONDITIONS ONLY APPLY TO THE PROVISION OF SERVICES TO CANADIAN RESIDENTS.

USE OF SERVICE

By using the LooneyCall Services, You are agreeing to abide by these Terms and Conditions. You agree that any Users will Use the Services only for lawful purposes. You acknowledge that the Company may terminate Service immediately, without any notice and without any liability to You whatsoever, if, at the sole discretion of the Company, You or any User misuses or permits others to misuse or abuse any Service for purposes that are contrary to law or contrary to these Terms and Conditions, or if the Company has to preserve the integrity of the network, or comply with laws or other regulatory orders or tariffs.
ou are liable for any and all Use of the Services by any User, and You remain solely responsible for all Use of Services ordered or billed to Your telephone number(s), for determining who is authorized to Use Your Service, and for promptly notifying the Company of any unauthorized Use. You agree to indemnify and hold harmless the Company from and against any and all fees, charges, damages, liability, costs and expenses (including reasonable legal counsel fees, as applicable) associated with such Use.

The Company provides the Services to You as an independent contractor. The employees or agents of other participating carriers are not and shall not be deemed to be agents or employees of the Company. In subscribing for the Services, You obtain no proprietary right or interest in any particular facility, service, equipment, telephone number or code associated with the Services, and the Company makes no representation or warranty that the Services are compatible with any particular facilities, equipment or other infrastructure.

TERMINATION BY THE COMPANY

The Company may suspend or terminate Service, without any liability to You whatsoever, if You (or other User, as may be applicable): fail to pay Your account that is past due; fail to meet the Company’s credit requirements; become bankrupt or otherwise insolvent; harass, threaten or otherwise act unreasonably towards the Company, its employees or agents; are in breach of these Terms and Conditions; Use the Services so as to prevent fair and proportionate use by others; Use the Services contrary to law, public policy or decency standards (including but not limited to regulatory pronouncements on issues such as Automatic Dialing-Announcing Devices and unsolicited live voice and fax calls), or reasonable Usage policies instituted from time to time by the Company; charge or allow others to charge any other person for the Use of the Service without the Company’s prior written agreement; alter or otherwise interfere with the Company’s facilities, equipment, network or connections or Use the Services in a prohibited, unlawful, or improper manner, including but not limited to, permitting fraudulent use.

Prior to suspension or termination, the Company will make reasonable efforts to provide You with advance notice, stating the reason for the proposed suspension or termination, the amount owing (if any) and any notice period, determined in the Company’s reasonable discretion, during which You will have the opportunity to rectify the reason for proposed suspension or termination.

You acknowledge and agree that termination or suspension does not remove Your responsibility to pay all fees owed by You to the Company up to the date of termination or suspension.

Notwithstanding anything contained herein to the contrary, the Company will not provide notice of a proposed suspension or termination:

a) where immediate action must be taken to protect the Company’s facilities, equipment, network or connections, to protect the safety or security of others (including protection against abusive behaviour), to stop the commission of any offence (including fraud), or to ensure compliance with any law, court order or other legal requirement;

b) where the Company reasonably believes that extreme circumstances exist, or that there is an abnormal risk of loss involved in delaying the suspension or termination;

c) in an emergency situation; or

d) where the Company has made reasonable efforts to provide You with advance notice in accordance with the second paragraph above, but was unable to do so.

In the event of a suspension or termination of the Service, all features and services will also be suspended or terminated. A suspension or termination will not affect Your obligation to pay any amounts owed to the Company either during or after the suspension or termination, including the full month’s charges for the month where Your Service is suspended or terminated.

If the Service is suspended or terminated for non-payment or otherwise for cause relating any of the reasons listed above, a reconnection service charge may be applied for reconnecting the Service. Following a suspension or termination of Service, the Company cannot guarantee the availability or resumption of any previous numbers, codes or other identifiers that may have been applicable to You.

FRAUD

You agree to notify the Company immediately, in writing or by calling Customer Service at 1-866-785-5869, if You become aware at any time that Your Service (or any aspect of the Service such as password or PIN) is being or has been fraudulently, improperly or unlawfully Used. When You notify us, You must provide Your account number and a detailed description of the nature of the fraudulent, improper or unlawful Use of the 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 Use of the Services, irrespective of fraudulent, improper or unlawful use of the Services. You are responsible for the security of Your authorization codes, passwords and PIN numbers, if any, as well as any and all access to Your telephones, telecommunications systems and Servi ce.

CREDIT AND PERSONAL INFORMATION

You consent and agree that the Company has the right to and may check Your credit rating from time to time, including in advance of initiating Service for You. You consent to the receipt and provision of account information from and to credit grantors and credit bureaus, as well as collection agencies if and as required.

The Company respects Your personal information and adheres to the LooneyCall Privacy Policy. You can read our Privacy Policy at www.looneycall.ca. The LooneyCall Privacy Poli cy affirms the Company’s commitment to maintain confidentiality, security, accuracy and privacy of customer personal information that the Company collects and uses to provide Service. If You would like to review the contents of Your personal file with the Company, please call our Customer Service at 1-866-785-5869.

PROVISION OF SERVICE

The Service is only available where it is possible and commercially reasonable for the Company (in the sole determination of the Company) to provide such Service. The Services may not be available for calls made from certain geographic areas and/or mobile telephones. In addition, the Services may not be available for calls made to certain international destinations. The Company is not required to provide Service to You where: 1) The Company would have to incur unusual expenses which You will not pay; for example, special construction; 2) You owe amounts to the Company that are past due other than as a guarantor; 3) You do not provide credit information satisfactory to the Company or a reasonable deposit, as requested by the Company from time to time and as determined, at least in part, by your Usage patterns and quantity. Where you have provided a deposit, simple interest, based on the monthly savings account rate of The Bank of Nova Scotia, will be paid on all sums retained on deposit.

SERVICE INTERRUPTION/MAINTENANCE

The Company may interrupt Your Service at any time for any duration of time, without any notice or liability, in order to install, repair, replace or to perform necessary maintenance on the Company’s telecommunications equipment, facilities or network, or for other technical reasons as may be required.

The Company does not guarantee uninterrupted operation of Service, or of its equipment, facilities, connections or network, or that there will not be delays, errors, defects or failures associated with the Services.

PAYMENTS AND BILLING

You are responsible for payment to the Company of charges for all Services provided, including all calls originating from Your premises and all calls charged to Your line where any person answering Your line agrees to accept such charge. You acknowledge that LooneyCall is billed by Your local voice service carrier on Your local telephone bill according to the billing cycle and practices of that carrier.

In the event the Company is not paid in respect of Your Use of Service, in addition to any other remedies available to the Company, the Company will charge an administrative fee and late charges at a monthly compounded rate of 1.5% (19.56% per annum). The Company will review any disputed charge, provided You continue to pay the undisputed portion and subsequent invoices.

You acknowledge that the Company may not issue cheques for refunds for any amounts lower than ten dollars ($10.00). In the alternative, You agree that that any refunds lower than ten dollars ($10.00) will be credited to Your account or, at the Company’s discretion, may be subject to a reasonable processing fee to refund. Except in the case of deception, You will not be responsible for paying a previously unbilled or under-billed charge that is billed more than one year following the end of the month in which such charge was incurred. Improperly billed or over-billed charges will be credited to Your account, provided that You dispute such charges within 150 days of the date of the bill.

Regardless of call duration, all billable calls are subject to a $1.00-per-call minimum charge. Thereafter, usage charges will be billed individually in one minute increments. Any fraction of an increment will be rounded to the next highest increment. Call timing will be determined conclusively by the Company’s network systems. The rate per minute for Use of the Services may vary according to destination: please see www.looneycall.ca for details. In addition, the number of call minutes applicable to the $1.00 minimum charge may vary according to destination: please see www.looneycall.ca for details. Usage charges are exclusive of applicable taxes, including federal and provincial sales taxes.

A monthly paper billing charge of $1.95 applies if You choose to receive Your invoices by mail. There are no billing charges if You choose to receive Your invoices through the Company’s automated email billing system.

OTHER APPLICABLE FEES RELATING TO CERTAIN SERVICES

Please see the LooneyCall web site at www.looneycall.ca or contact Customer Service as provided in these Terms and Conditions for updated rates, fees, surcharges, pricing and features applicable to the Service. Such rates apply to wireline calls made in Canada using the Services.

Additional per minute surcharges may apply for LooneyCall Services in respect of calls terminating on mobile phones or special country code terminations in certain countries.

All of LooneyCall’s rates, fees, pricing and features are subject to change without notice. If You would like confirmation of such terms before Using a Service, please verify with the LooneyCall web site at www.looneycall.ca, including making use of LooneyCall’s rate calculator. Alternatively, please contact Customer Service using the contact information described in these Terms and Conditions. Customer Service faxes should be sent to 1-866-216-9923.

WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY

EXCEPT AS SPECIFICALLY PROVIDED IN THESE TERMS AND CONDITIONS, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND IN CONNECTION WITH ITS NETWORK, CONNECTIONS, EQUIPMENT, FACILITIES OR SERVICE, AS CONTEMPLATED HEREIN, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ALL SUCH REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND ARE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEREBY EXCLUDED.

THE PARTIES AGREE THAT THE COMPANY SHALL IN NO EVENT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, RELIANCE OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, REGARDLESS OF THE FORESEEABILITY THEREOF, ARISING OUT OF THE PROVISION OF SERVICE OR IN ANY WAY ARISING OUT OF THESE TERMS AND CONDITIONS AND ANY RELATED AGREEMENTS, WHETHER IN AN ACTION ARISING OUT OF BREACH OF CONTRACT, BREACH OF WARRANTY, DELAY, NEGLIGENCE, STRICT TORT LIABILITY, PATENT OR INTELLECTUAL PROPERTY MATTERS OR ANY OTHER LEGAL OR EQUITABLE THEORY. HOWEVER, IN THE EVENT A COURT OF COMPETENT JURISDICTION FINDS THE COMPANY LIABLE, YOUR EXCLUSIVE REMEDY AND THE COMPANY’S SOLE LIABILITY FOR DAMAGES TO YOU FOR ANY CAUSE WHATSOEVER REGARDLESS OF FORM OF ACTION, INCLUDING NEGLIGENCE, SHALL BE FOR DIRECT DAMAGES ONLY AND, EXCEPT IN THE CASE OF DEATH, BODILY INJURY AND PHYSICAL DAMAGE TO PROPERTY, WHOLLY CAUSED BY THE COMPANY’S NEGLIGENCE, SHALL NOT EXCEED AN AMOUNT EQUIVALENT TO THE ORDINARY PRICE OF THE RELEVANT SERVICE PURCHASED FOR ONE (1) MONTH (TO BE DETERMINED AS AN AVERAGE OF BILLINGS IN RESPECT OF SUCH SERVICE OVER THE CLOSEST PREVIOUS THREE MONTHS IN WHICH THERE WERE NO SUCH PROBLEMS OR DEFECTS IN THE SERVICE). NO ACTION OR PROCEEDING AGAINST THE COMPANY MAY BE COMMENCED MORE THAN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO SUCH CLAIM. THE PROVISIONS OF THIS SECTION SHALL SURVIVE TERMINATION OF THESE TERMS AND CONDITIONS.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, the Company is not liable for:

any act or omission of any third party (including any other local telephone company, any connecti ng carrier or underlying carrier or other provider of connections, facilities, or service);
a User’s conduct, acts or omissions, or the operation or failure of Your equipment or facilities;
any event beyond the reasonable control of the Company including acts of God, inclement weather including but not limited to lightning, labour disputes, riots or civil disputes, war or armed conflict, any law, governmental order, decision or regulation, or order of any court of competent jurisdiction; or
its failure, for any reason, to activate or have readily available Service on the activation or Usage date requested by or conveyed to or by You.
OTHER INDEMNIFICATION

IN ADDITION TO ANY OTHER INDEMNITIES IN THESE TERMS AND CONDITIONS, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE COMPANY, ITS AFFILIATES, AND EACH OF THEIR SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, LICENSORS AND SUPPLIERS FROM AND AGAINST ALL CLAIMS, LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE LEGAL FEES, RESULTING FROM ANY ACTION, INACTION OR BREACH OF THESE TERMS AND CONDITIONS BY YOU OR OTHER USERS. THE PROVISIONS OF THIS SECTION SHALL SURVIVE TERMINATION OF THESE TERMS AND CONDITIONS.

INTELLECTUAL PROPERTY OF THE COMPANY

The Company or its affiliates or licensors, as the case may be, are the exclusive owners of all names, trade-marks, tradenames, service marks and any copyright material relating to the Services (“Intellectual Property”). Nothing in these Terms and Conditions contemplates or creates permission of use of Intellectual Property for any marketing or advertisement by You or a transfer of license of Intellectual Property from the Company to You.

CHANGES, MODIFICATIONS OR TERMINATION OF PLANS OR PLAN FEATURES

Without incurring liability, the Company may at any time and without notice to You, change, modify or terminate any Service or Service features, in whole or in part (including the rates or charges for all customers who at such time are not subject to a future term commitment). In the event of any such change or modification, You will be responsible for paying all charges incurred for Use of such Service including any charges arising out of the change or modification. In the event of a termination of a Service or Service feature by the Company, You will be responsible for paying all charges incurred up to the applicable termination date.

NOTICES AND OTHER COMMUNICATIONS

The Company may amend these Terms and Conditions, including with respect to any Service or Service feature as described in the paragraph above, from time to time as stated herein, and notice will be effective by virtue of the Company posting such revised Terms and Conditions on the LooneyCall website.

ASSIGNMENT

You may not assign, lease, resell or transfer the Services to a third party without the prior written consent of the Company. The Company reserves the right to terminate the Services and the Use of the Service, without any liability to You whatsoever, in the event that You assign, lease, resell or transfer Services to a third party without the prior written consent of the Company.

NO WAIVER

The terms and provisions of these Terms and Conditions may only be waived by the Company in writing. No failure by the Company to insist upon Your performance of any obligation in these Terms and Conditions will constitute a waiver of the obligation.

SEVERABILITY

The invalidity, illegality or unenforceability of any one or more provisions of these Terms and Conditions will not impair any other provision in these Terms and Conditions.

LANGUAGE

You confirm that You accept these Terms and Conditions, as well as all other related documents, including notices, in English only, unless You specifically request French correspondence. Residents du Québec Seulement – Les parties aux présentes confirment leur volonté que la présente convention, de même que tous les documents s’y rattachant, y compris tout avis, soient rédigés en anglais seulement, à moins d’une demande expresse de l’une des parties à l’effet que les documents échangés soient rédigés en français.

JURISDICTION

These Terms and Conditions and any related agreements will be governed in all respects by the laws of the Province of Ontario, Canada and the federal laws of Canada applicable therein.