Terms and Conditions of Service

1. SERVICES

1.1 For the purposes of these terms and conditions, the customer is the person or company whose name appears on the invoice (the “Customer”). The terms of service detailed within form an “Agreement” between Navigata Communications Ltd. (“Navigata”) and the Customer.

1.2 For the purposes of this Agreement “Service” and “Services” means any product or service provided under the Local Service Rental Agreement and Voice Services Agreement (“Service Agreement”).

1.3 For the purposes of defining the service start date, the date of installation will deemed to have taken affect on the day that the third-party demarcates the appropriate lines to the Customer’s premises.

1.4 No amendment or other modification to this Agreement will be effective unless in writing and signed by each of the parties to this Agreement. If Navigata determines at anytime that there has been any alteration, deletion or other change of any kind made to this Agreement, either before or after the signing of this Agreement by Navigata, that Navigata has not expressly agreed to in writing, then this Agreement may in Navigata’s complete discretion, be immediately terminated and upon such termination will no longer be of any force and effect excepting any obligations accrued and outstanding prior to such termination and those which are by their nature are intended by the parties to survive such termination, including without limitation, any obligation in the Agreement of the Customer to pay early termination fees.

1.5 The scope of services provided under any Service Agreement may be expanded or decreased at any time upon written notice to Navigata. Any changes to the Services Agreement may result in additional installation fees, changes in monthly fees, or termination fees.

2. PAYMENT

2.1 All monthly recurring charges will be billed in advance and must be paid by the Customer in advance, usage based fees will be billed a month in arrears. All charges must be paid in accordance with Navigata’s payment terms outlined in Section 2.7.

2.2 The Customer is responsible and must pay for all calls:

(a) placed from the Customer’s telephone line,

(b) placed through the demarcation point, where the Customer receives service,

(c) received at the Customer’s telephone line or demarcation where the charges have been accepted by a person receiving the call, or

(d) charged to the Customer’s telephone number, account, Calling Card, or

(e) to the Customer through any credit arrangement approved by Navigata.

2.3 The Customer is liable for calls regardless if the person who;

(a) placed the call,

(b) accepted the call, or

(c) charged the call

had the Customer’s permission to do so or not.

2.4 The Customer is responsible for the payment of any taxes or charges as may be levied by the government

2.5 Customer understands that calls made to mobile destinations will be assessed at a higher rate then calls made to wireline termination destinations within the same country/ location.

2.6 Where the Customer has transferred telephone numbers over to Navigata for the purpose of obtaining service, Navigata assumes responsibility of all charges in respect to the numbers, providing the Customer does not default in payment. If such Services and any facility or equipment used to provide those services are subject to tax, or charge to the Customer’s bill it is the Customer’s responsibility to pay the amount of the sales tax, or other tax, or charge as part of the Navigata invoice.

2.7 Navigata payment due date is thirty (30) days from the invoice date. Navigata reserves the right to charge interest on any outstanding amount at the rate of 15% annually or 1.25% per month. If the Customers’ bill is lost or the Customer does not receive the bill, the Customer is still responsible for making the required payment to Navigata by the due date.

2.8 Navigata will invoice Customers a minimum of $9.95 per month for each or a combination of long distance, toll free and travel card services. The Customer agrees to pay such minimum charge each and every month they are receiving one or more of long distance, toll free and travel card services from Navigata.

2.9 The Customer is still liable for charges that may have been underbilled or unbilled in the case where;

(a) a monthly or other periodic charge, that Navigata correctly bills within one year from the date it was incurred, or

(b) where a charge other than a monthly or periodic charge is corrected and charged within 150 days from the date it was incurred

2.10 In the event that the Customer has a credit due to them for one Service, but owes Navigata for another Service, at the same address, Navigata may offset the amount due from the credit.

3. DISPUTES

3.1 Navigata will investigate all disputes whether verbal or written within thirty (30) days of the invoice date. If no dispute has been reported, the invoice will be regarded as correct and binding on the Customer.

3.2 If the Customer disputes any charges, the Customer must pay all the undisputed charges in accordance with Section 2.6.

3.3 If Navigata, acting reasonably, finds that the dispute is invalid, the Customer must pay the disputed portion with interest immediately. If Navigata finds that the dispute is valid, a credit amount will be placed on the following invoice.

4. CREDIT and DEPOSITS

4.1 Navigata may require a deposit from the Customer for the purpose of establishing an acceptable level of credit prior to implementation of Service or at any time during the terms of the Service Agreement in the following circumstances:

(a) if the Customer has no credit history with Navigata and is unable to provide proof of creditworthiness,

(b) the Customer has an unsatisfactory credit history with Navigata, based on previous payment practices and is unable to provide satisfactory current creditworthiness

(c) if the Customer presents a clear abnormal risk of loss

4.2 The Customer agrees that execution of any Service Agreement with Navigata constitutes Navigata’s right to continue with periodic credit checks as may be required, in Navigata’s discretion.

4.3 Navigata may request a deposit from the Customer, but may also accept an alternative arrangement such as:

(a) guaranteed form of cheque,

(b) a written guarantee from another person whose credit has been established and is to Navigata’s satisfaction,

(c) a bank letter of credit

4.4 Navigata will review the need and the amount of the deposit or other credit alternative at least every six months or whenever the Customer requests a review. If Navigata concludes that satisfactory credit has been established Navigata will return the deposit or, with the Customer’s consent apply a portion to the current or unpaid charges due and return the unused balance to the Customer.

4.5 If Services are cancelled Navigata may apply any portion of the deposit to the amount outstanding and return the unused balance to the Customer. Where a written guarantee was provided Navigata may use the guarantee to arrange for payment outstanding and upon receipt of payment will return any written guarantee to the Customer.

5. RATES

5.1 Navigata reserves the right to increase International long distance rates without notice, all other rate increases shall be upon thirty (30) days written notice to the Customer.

5.2 Rates and charges for long distance Services are in accordance to the selected pricing plan. Where no pricing plan has been selected, rates and charges will fall to Navigata’s default plans, as they may change from time to time.

5.3 All pricing and rates are in Canadian funds.

5.4 If the Customer has reported a trouble ticket that is found to be Customer sided, the Customer will be charged accordingly.

5.5 Any additional charges for installation, repair, moves, adds or changes outside of the fixed monthly fees will be charged to the Customer as applicable.

5.6 Customers subscribing to Local Access Services agree to a Minimum Monthly Commitment of two hundred (200) minutes of Long Distance per month for each local service line. Failure to maintain the Minimum Monthly Commitment gives Navigata the right to adjust the rates for Local Service and Long Distance Services or levy a surcharge.

5.7 Customers who have agreed to a Minimum Monthly Commitment (“MMC”) of Service under this Agreement understand that the MMC will remain in effect for the duration of the term and any subsequent terms. Failure to maintain the MMC gives Navigata the right to adjust the rate, levy a surcharge of the difference between the actual usage and the MMC, or, if applicable, adjust the billing increments as determined by Navigata.

5.8 Navigata shall bill for all calls in increments of six (6) seconds, with a thirty (30) second minimum charge, unless otherwise agreed to in writing.

6. NAVIGATA OBLIGATIONS

6.1 Navigata will make all reasonable efforts to maintain all Navigata Services and ensure they are operational.

6.2 Navigata does not warrant uninterrupted working of its services, facilities, circuits, lines or equipment and is not liable for any damages arising from omissions, interruptions, delays, errors or defects in transmission, or failures or defects in Navigata’s facilities or equipment, unless they are caused by Navigata’s negligence in which case a credit will be issued to the Customer in accordance with Section 6.5.

6.3 Installation and wiring will be provided up to the buildings demarcation point, any inside wiring, or special construction is the responsibility of the Customer or the Customer’s interconnect company, unless otherwise negotiated at the applicable fees in the Service Agreement.

6.4 Navigata will notify the Customer’s current Long Distance Carrier supplier of their decision to use Navigata’s Long Distance Services. For certainty, any Long Distance Services will mean all calls dialled using 1+ or 011+ on the numbers listed to Navigata.

6.5 In the event the Customer has experienced a service interruption, omission, delay, error or defect in transmission, Navigata will, upon request from the Customer, refund that part of the Customer’s recurring monthly or usage charge for the Service. The refund will be proportionate to the length of time the problem existed.

6.6 Navigata shall retain all information received from the Customer in providing Navigata Services to the Customer in confidence, excepting only Customer’s published name, address and telephone number and will not use or disclose such Customer information except to provide the Navigata Services to the Customer or except as is authorized or provided for by law, including any privacy legislation that may apply to Navigata from time to time.

7. Customer’s Obligations

7.1 Customer shall not use the Services or equipment in any manner not contemplated under

this Agreement, including without limitation, resale of such services or equipment, without express written permission from Navigata. Any unathorized use of Services, which may breach CRTC guidelines for acceptable use, may be subject to penalties, which will be the burden of the Customer to pay.

7.2 Customer will adhere to the guidelines for International Toll Free service and understands that the numbers shall not be used for Call Backs, Calling Cards, Third Country Calling and Reselling activities. Navigata accepts no liability for any actions that may be taken against the Customer by the International Authorities, which may result in the cancellation or disruption of service.

7.3 For security purposes the Customer shall take care to ensure that the Calling Card number is kept confidential. The Calling Card is the property of Navigata and must be returned to Navigata upon request.

7.4 The Customer agrees to provide Navigata with thirty (30) days prior written notice that the lines are to be transferred to another Carrier and to pay for all Services up to the cancellation date. Failure to properly notify Navigata of the pending transfer could result in delays.

7.5 Inside wiring from the demarcation point shall be arranged by the Customer prior to the date of installation. Any costs associated with inside wiring, or delays caused by, are the responsibility of the Customer.

7.6 The Customer shall allow Navigata, its agents and employees access to enter the Customer’s premises, at reasonable hours, on which Navigata Services are or are to be provided, to install, inspect, repair, remove its equipment. Except in the case where the Customer is in default of this Agreement, prior to entering the premises, Navigata must obtain the Customer’s permission.

7.7 Customer is responsible for providing Navigata with the correct information for all Directory Listing orders and any charges associated with the Directory Listing, including Moves, Adds, Changes and Deletions. Navigata’s liability for any damages arising from any error or omission in the Customer's Directory Listing, is limited to making a refund of any charge associated with the implementation of the listing. Navigata is not liable for any damage arising out of continuation of the Directory Listing in any telephone directory after termination or cancellation of the Navigata Services.

7.8 Customers subscribing to Internet Services understand and agree to the terms as set forth in the Acceptable Use Policy. Navigata reserves the right to terminate this Agreement if the Customer breaches the Acceptable Use Policy located on the Navigata web site, www.navigata.com/terms_and_conditions.

8. Early Termination and Termination of Services

8.1 The Customer understands that the provisioning of bundled Services under a term agreement will be subject to early termination penalties if one of the Services is cancelled prior to the expiration of the initial term in accordance with Section 8.2 and the rates for other bundled Services may increase.

8.2 If the Agreement or any of the Services are cancelled prior to the expiration of the initial term, the Customer will be liable to Navigata for a charge equal to the average monthly usage (based on charges for the months preceding Service Agreement cancellation) and 100% of the Local Service fee for each of the months remaining in the contract.

8.3 The terms and conditions of this Agreement and pricing will continue in effect after the expiration of the initial term, unless Navigata is in receipt of written notice of termination at least thirty (30) days prior to the end of the term, on a monthly basis.

8.4 If any of the terms and conditions of this Agreement have been breached and Navigata terminates the Service Agreement, the Customer will be liable to pay to Navigata a sum equal to the average use as calculated in Section 8.2.

8.5 If the Customer wishes to transfer the lines or Service to another entity, both parties will enter into a Business Telephone Transfer Agreement with Navigata. Any assumed transfers without the foreknowledge and consent of Navigata will not be recognised. Execution of the transfer request will be in Navigata’s sole discretion and is subject to the terms and conditions of this Agreement.

8.6 If Customer cancels Navigata Services where installation has been initiated, but not yet commenced, the Customer will be responsible for any charges associated with the process of provisioning the Services.

9. Suspension and Termination

9.1 In the event that payment in full has not been made or any of the provisions under this Agreement have been breached, Navigata shall have the right to suspend services until such time that payment has been made or the breach as been corrected.

9.2 The Customer must pay for any reconnection charges prior to the restoration of suspended Services. Price of which is determined by the scope of Services provided.

9.3 If payment is not forthcoming and the Customer has not been able to provide satisfactory proof of creditworthiness or provide a payment guarantee, or correct the breach, then Navigata shall have the right to terminate all Services with no liability to the Customer.

9.4 If Services have been terminated, the Customer will have to re-apply in order for Services to be re-established and Navigata can not guarantee that the Customer will be designated the same telephone numbers.

10. Liability

10.1 Navigata will not be liable for damages for any delay or failure to perform due to governmental orders, labour disputes or shortages, acts of God, cable cuts, or other causes beyond the reasonable control of Navigata.

10.2 Customer is responsible for controlling access to, and use of, its own facilities, and although Navigata may recommend possible solutions to reduce unauthorised use of Service, Navigata does not warrant or guarantee that such recommendations will prevent all unauthorized use. Customer shall be solely responsible for determining the adequacy of Service for any and all uses to which the Customer may apply. Navigata makes no warranties or conditions, express or implied, including any implied warranty of merchantability or of fitness for a particular purpose.

10.3 The total liability of Navigata shall not exceed the amounts paid by the Customer for service. In no event shall Navigata be liable to the Customer for any other amounts, including indirect, special, incidental, consequential, or punitive damages or any kind, including lost profits, regardless or whether such damages were foreseeable, and regardless of the form of the action.

10.4 Customer shall indemnify Navigata against all claims, losses or damages, including legal fees, arising from the use of Service, including without limitation, charges incurred as a result of authorized or unauthorized use of Service by third parties; claims for libel, slander, invasion of privacy or infringement of copyright; and claims for patent infringement arising from combining or using Service with facilities or equipment furnished by others.

10.5 Any litigation arising hereunder may be brought in the courts of the Provinceof British Columbia. By obtaining Services hereunder, Customer is deemed to have submitted to such jurisdiction, thereby will be liable to Navigata, for legal fees incurred in the collection or attempted collection of any undisputed past due amounts.