Firstin Wireless

Effective and Last Updated: January 1st, 2012

1. General

   The services (“Services”) that Firstin Wireless Technology Inc. (“Firstin” or the “Company”) provides to your corporation and its users are subject to the following Terms of Service (“Agreement”). If You register for a free trial for our services, this Agreement will also govern that free trial.

   By accepting this Agreement, either by clicking a box indicating your acceptance or by executing an order form that references this Agreement, You agree to the terms of this Agreement. If You are entering this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “You” and “Your” shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with the terms and conditions, You must not accept this Agreement and may not use the Services.

   Firstin reserves the right to update the Agreement at any time without notice to You. The most current version of the Agreement can be reviewed by clicking on the “Terms of Use” hypertext link located at the bottom of our Web pages.

2. Use of Service

   Subject to this Agreement, Firstin hereby grants You, your Corporation and its Users a non-transferable, non-exclusive, revocable right to use the Software, and any related written documentation, solely for the purpose of using the Services. You agree that any users will Use the Services only for lawful purposes and You agree to comply with any applicable terms of applicable third party agreements when using the Service. You acknowledge that Firstin may terminate Service immediately, without any notice and any liability to You whatsoever if, at the sole discretion of Firstin, You or any User misuses or permits others to misuse or abuse any Service for purposes that are contrary to law or contrary to this Agreement, You breach the license restrictions with respect to the Software; or if Firstin has to preserve the integrity of the network, or comply with laws or other regulatory orders or tariffs. You are liable for any and all Use of the Services by any User, and You remain solely responsible for all use of service utilized through your Corporation, and for promptly notifying Firstin of any unauthorized use. You agree to indemnify and hold harmless Firstin against any and all fees, charges, damages, liability, costs and expenses (including reasonable legal counsel fees, as applicable) associated with such Use.

3. Free Trial

   If You register on our website for a free trial, You will be able to make up to CDN$25.00 of calls to any permitted country at no charge (30-day trial period). Firstin will make Service available to You and your Users on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Service or (b) Your use of the total CDN$25.00 allocated amount for the trial period or (c) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
   Notwithstanding section X (Warranty Disclaimer and Limitation of Liability), during the free trial the Service is provided “as-is” without any warranty.

4. License Restrictions

   Except as otherwise provided in this Agreement, You shall not (i) make any modifications, or improvements to, or derivative works of the Software; (ii) reverse engineer, decompile or otherwise attempt to derive the source code, underlying ideas, algorithms, structure of organization of the Software; (iii) resell, sell, export, transfer, distribute, market, and/or sublicense the Software; or (iv) otherwise Use the Software except as authorized herein.
   
   You may not use or otherwise export or re-export the Software except as authorized by Canadian and United States law and the laws of the jurisdiction where the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Departments list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software and Services for any purposes prohibited by Canadian or United State law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.

5. Termination by Firstin

   Firstin may suspend or terminate Service, without any liability to You whatsoever, if You (or other User, as may be applicable): harass, threaten or otherwise act unreasonably towards Firstin, its employees or agents; are in breach of these Terms; Use the Services so as to prevent fair and proportionate use by others; charge or allow others to charge any other person for the Use of the Service without Firstin’s prior written agreement; alter or otherwise interfere with Firstin 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, Firstin 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 Firstin’s reasonable discretion, during which You will have the opportunity to rectify the reason for proposed suspension or termination. Notwithstanding anything contained herein to the contrary, Firstin will not provide notice of a proposed suspension or termination: a) where immediate action must be taken to protect Firstin facilities, equipment, Software, network or connections, to protect the safety or security of others (including protection against abusive behavior), to stop the commission of any offence (including fraud), or to ensure compliance with any law, court order or other legal requirement; b) where Firstin 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; d) Your breach of any material terms (including license restrictions) of these Terms; or e) where Firstin has made reasonable efforts to provide you with advance notice, but was unable to do so.

6. Termination by You

   You may cancel this contract from the day you enter the contract at any time. You do not need a reason to cancel. To cancel, You must give notice of cancellation to Firstin at support@firstinwireless.com.
   

7. Fraud

   You agree to notify Firstin immediately, by sending an e-mail to support@firstinwireless.com, if You become aware at any time that Your Service is being stolen or fraudulently, improperly or unlawfully used. Failure to do so in a timely manner may result in the termination of Your Service and additional charges to You.
   

8. Service Interruption/Maintenance

   Firstin 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 telecommunications equipment, facilities or network, or for other technical reasons as may be required. Firstin 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 Service.

9. Confidentiality

   Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

   Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.

   Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

10. Warranty Disclaimer and Limitation of Liability

    Except as specifically provided in this Agreement, Firstin 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 limitations 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.

    You agree that Firstin 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 this Agreement 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 Firstin liable, your exclusive remedy and Firstin’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 Firstin’s negligence, shall not exceed the amount of fifty dollars ($50.00). The foregoing limitation will apply even if the above stated remedy fails of its essential purpose. No action or proceeding against Firstin 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.

    Without limiting the generality of the foregoing, Firstin is not liable for:

    • Any act or omission of any third party (including any other local, wireless or mobile telephone company, any connecting carrier or underlying carrier or other provider of connections, facilities, or service);
    •  User’s conduct, acts or omissions, or the operation or failure of Your equipment or facilities;
    •  Any event beyond the reasonable control of Firstin including acts of God, inclement weather including but not limited to lightning, labor 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.
11. Other Indemnification

    In addition to any other indemnities in these terms, You agree to indemnify, defend and hold harmless Firstin, 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 by you or other users. The provisions of this section shall survive termination of these terms.
    

12. Firstin Intellectual Property

    Firstin or its affiliates or licensors, as the case may be, are the exclusive owners of all names, trade-marks, tradenames, Software, service marks and any copyright material relating to the Services (Intellectual Property). Nothing in this Agreement 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 Firstin to You except as otherwise provided in these Terms.

13. Service Limitations

     The Service do not support:

    •  9-1-1 or enhanced 9-1-1 access to emergency services
    •  900 calling, and therefore You will not be able to make 900 calls using the Service
    •  Operator services as there is no ability to dial “O” to access operator services
14. Jurisdiction

    This Agreement and any related agreements will be governed in all respects by the laws of the Province of Quebec, Canada and the federal laws of Canada applicable therein.

15. Notices and Other Communications

     Any notice or other communication will be in writing and will be provided by personal delivery, email or by facsimile to Firstin or You as applicable, at the email address, regular address or facsimile number as set forth in Your service order(s). Notices delivered in person will be effective on the date of such delivery. Notices delivered by email or facsimile will be effective on the date of transmission, provided printed proof of transmission is obtained. Notwithstanding the foregoing, Firstin may amend these Terms, from time to time as stated herein, and notice will be effective by virtue of Firstin posting such revised Terms on its website.
    

16. Assignment

    You may not assign, lease, resell or transfer the Services to a third party without the prior written consent of Firstin. Firstin 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 Firstin.
    

17. No Waiver

     The terms and provisions of this Agreement may only be waived in writing. No failure by Firstin to insist upon Your performance of any obligation in this Agreement will constitute a waiver of the obligation.
    

18. Severability

     The invalidity illegality or unenforceability of any one or more provisions of this Agreement will not impair any other provision in this Agreement.
    

19. Language

    You confirm that You accept these Terms, as well as all other related documents, including notices, in English only, unless You specifically request French correspondence. Résidents 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.