Terms and ConditionsThe following are the terms and conditions (these “Terms”) that apply to your use of the wireless services provided by Cityfone, operated by Rogers Communications Partnership (“Cityfone”), to your use of equipment received from Cityfone and to your assigned telephone number(s) (“Numbers”) (individually and collectively, the “Services”), including but not limited to the handset, handset accessories and SIM cards (collectively, the “Equipment”). Any current Cityfone document describing the plans, features, services or products you have selected (collectively, the “Materials”) together with these Terms constitute the agreement (“Agreement”) between you, the subscriber (hereinafter referred to as “you”, “your” and/or the “subscriber”), and Cityfone. If there is any inconsistency between the Materials and these Terms, these Terms will prevail. These Terms cannot be changed by you.
The Services may have been offered to you under a program using the branding of an entity unrelated to Cityfone (the “Brand Entity”). For greater certainty, (i) the Services and the Equipment are provided to you by Cityfone and not by the Brand Entity, and (ii) this Agreement is only between you and Cityfone; the Brand Entity is not party to this Agreement and assumes no liability for the provision of the Services.
By receiving the Equipment, you acknowledge your acceptance of these Terms and you agree to be bound by the Agreement. If you do not agree with these Terms, do not use the Services or the Equipment and notify us immediately to cancel service.
Your Agreement period and your Services start on the “Date of Contract” specified in the Materials. At the end of your service agreement period, your plan will automatically default to a month‐to month term on these same Terms until the Services are terminated by you or by Cityfone, subject to the provisions contained herein.
2. CREDIT VERIFICATION
Cityfone shall have the right to perform subscriber credit verification on every new account or as Cityfone deems necessary, acting reasonably, and the subscriber hereby consents thereto. Certain restrictions may apply to credit limits, price plan eligibility and other calling features extended to you, based on your credit verification results.
3. EARLY CANCELLATION FEE
If, for any reason, your Services are terminated prior to the end of the service agreement period (if applicable), you agree to pay us (i) $20 for each month remaining in the service agreement period, to a maximum of $300 or (ii) if a cancellation fee is prescribed by applicable provincial laws, the maximum amount as may be prescribed or determined by such applicable provincial laws, which is more fully described elsewhere in this Agreement. Cityfone may allow for the cancellation of your Services without an early cancellation fee if the cancellation is within 30 days from the date of activation and the Equipment is returned according to the provisions of section 19 of this Agreement. Activation and delivery fees are non‐refundable. Your Services will not be disconnected until the Equipment is received by us. The early cancellation fee described above is payable for each Number of a subscriber.
4. RESPONSIBILITY FOR CHARGES
You are responsible for all charges related to the Services, including but not limited to all charges for airtime units, long distance, roaming, data usage, the monthly service fee (if applicable), and any charges relating to the activation, or suspension of the Services. We may bill you up to one year from the date the charge was incurred. You are also responsible for all charges related to the purchase of the Equipment. Charges will be deemed to be correct if not disputed by you within thirty (30) days of the invoice date. If you subscribe to one of our plans with a service agreement period the monthly fee and local per‐minute airtime rates are a term and condition of this Agreement and we will not increase the monthly fee and local per‐minute airtime rates for the length of the service agreement period. Any other charges are not a term or condition of this Agreement (including but not limited to text messaging rates, roaming charges, data usage and long distance calls). We may change the other charges any time. Subject to section 28, we may change the terms and conditions of the Agreement at any time.
Any applicable sales, use, excise, public utility, provincial, federal or regulatory charges or surcharges or other taxes, or like fees or charges imposed on Cityfone or a visited carrier as a result of providing the Services or Equipment will be added to the subscriber’s bill. If the subscriber is exempt from payment of any such taxes, the subscriber shall submit to Cityfone at #101‐3991 Henning Drive, Burnaby, BC, V5C 6N5 an original tax exempt document however, such submittal shall not entitle the subscriber to a credit for any taxes previously paid.
6. UNPAID BALANCES
Any balance unpaid after the required payment date will be subject to a late payment charge of 2% per month, calculated and compounded monthly (26.82% per year) from the date of the first invoice on which the unpaid balance appears until paid in full. Overdue accounts are subject to cancellation of service. Not applicable to residents of Québec: An administration fee of $25 will be levied if your credit card is denied or if your cheque or pre‐authorized payment is returned due to non‐sufficient funds.
7. AVAILABILITY/ INTERRUPTION
Service is normally available to your Equipment when it is within the operating range of our network and may be available outside of that area in participating areas. Service is subject to transmission limitation or interruption caused by weather, terrain, obstructions such as trees or buildings and other conditions. Service may be limited in some areas where coverage is not available or may be temporarily limited or interrupted due to reasons beyond our control or because of our network’s system capacity limitations and system repairs. Interruption may also result from nonpayment of charges by you.
When the subscriber travels outside Cityfone’s service area (“roams”) and into the service area operated by another carrier (“visited carrier”) and continues Services pursuant to any roaming service agreement between Cityfone and the visited carrier, the subscriber expressly acknowledges that the subscriber may experience conditions of Services different from those provided by Cityfone. Notwithstanding the foregoing, the subscriber agrees to pay all service charges of Cityfone and the visited carrier applicable to the subscriber’s roaming. Additionally, the subscriber understands that without notice, the visited carrier may, from time to time, increase or decrease rates charged to Cityfone and/or to roamers or alter conditions or features of service or availability, and that Cityfone and the visited carrier are under no obligation to provide advance notice to the subscriber of any such changes. The subscriber will be subject to the limitation of liability provisions and other conditions of service imposed by the visited carrier on the visited carrier’s own subscribers. The subscriber agrees that while the subscriber roams, subscriber accepts Services provided by the visited carrier on an “AS‐IS”, “WHERE‐IS” basis, without warranty of any kind whatsoever.
9. LIMITATION OF LIABILITY
Cityfone does not warrant the proper or uninterrupted working of the Equipment or Services and shall not be liable to you, or any other user or other person for damages resulting from mistakes, omissions, interruptions, delays, errors in transmission, defects in transmission, failure or defects in the Equipment or the Services caused by acts of God, fire, explosion, war, riots, strike, lockouts, picketing, boycotts, acts of Government Authorities, causes originating in the facilities or operations of Cityfone’s network or from any other cause of any nature or kind whatsoever whether or not similar to the specified causes herein stated and whether or not caused by the negligent or willful act or omission of Cityfone or persons for whose acts it is in law responsible. Without restricting the generality of the foregoing, in no event will Cityfone, nor its officers, directors, shareholders, employees and agents, be liable to the subscriber or any other person for:
I) any direct, indirect, special, consequential, incidental, economic or punitive damages (including loss of profit or revenue, financial loss, loss of business opportunities, loss, destruction or alteration of data, files or software, breach of privacy or security property damage, personal injury, death or any other foreseeable or unforeseeable loss, however caused) resulting or relating directly or indirectly from or relating to the Services, the Equipment or our facilities or network or any advertisements, promotions or statements relating to any of the foregoing, even if we were negligent or were advised of the possibility of such damages; and
II) any loss, accident, property damage, bodily injury or death caused by or to a vehicle, watercraft or aircraft owned or operated by the subscriber in which the Equipment is placed or installed; and
III) any damage resulting from, or in connection with any interruption, or failure of 9-1-1, or any emergency service, or identification of the telephone number associated with any person accessing or attempting to access such emergency services from your phone. If you operate as a roamer on any other carriers’ system pursuant to any roaming service agreement entered into by Cityfone and such other carrier, then in such event, you shall be subject to and not limited to the further limitation of liability provision with respect to such use. The foregoing is Cityfone’s complete and only liability to you, the subscriber.
10. ACCOUNT INFORMATION
Your account information may, from time to time, be disclosed to other members of the Rogers Communications Inc. organization and to our agents and dealers in order to service your account, respond to your questions and telemarket (including by way of automatic dialing and announcing devices) and promote additional products and services offered by members of the Rogers organization that may interest you. If you do not wish to receive offers or information from related Rogers entities, you may write to Cityfone at #101‐3991 Henning Drive, Burnaby, BC, V5C 6N5.
11. SUBSCRIBER USE
The subscriber agrees to activate the Equipment only on Cityfone’s network. The subscriber agrees not to use the Services or Equipment for any unlawful, unsafe, malicious or abusive purpose, or for interfering with others’ use of the Services, or in such a way as to defraud Cityfone or any third party or to create damage or risk to Cityfone’s business, network, facilities, or to third parties.
12. TELEPHONE NUMBERS
Subject to any rights the subscriber may have under applicable laws and regulations, including any right to port a number to another carrier, the subscriber has no property right in the Numbers or e‐mail address, if applicable. You may be required to change the number assigned to you at any time, though we will take reasonable measures to provide you with prior notice. You will lose your assigned telephone number if you terminate the Services.
13. SUBSCRIBER INDEMNITY
Unless caused by the negligence of Cityfone, the subscriber shall indemnify and hold harmless Cityfone and its officers, directors, shareholders, employees, and agents against any and all claims, including without limitation claims for libel, slander, infringement of copyright, or personal injury or death, arising in any way directly or indirectly in connection with this Agreement or the use, failure to use, or inability to use the Numbers. This indemnity shall survive the termination of this agreement.
14. USE OF CONFIDENTIAL INFORMATION
Unless a subscriber provides express consent or disclosure is required pursuant to a legal power, all information kept by Cityfone regarding the subscriber, other than the subscriber’s name, address and listed telephone number, is confidential and may not be disclosed by Cityfone to anyone other than:
(i) the subscriber;
(ii) a person who, in the reasonable judgement of Cityfone, is seeking the information as an agent of the subscriber;
(iii) another telephone company, provided the information is required for the efficient and cost‐effective provision of telephone service and disclosure is made on a confidential basis with the information to be used only for that purpose;
(iv) a company involved in supplying the subscriber with telephone or telephone directory-related services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose;
(v) an agent retained by Cityfone in the collection of the subscriber ‘s account or to perform other administrative functions for Cityfone, provided the information is required for and is to be used only for that purpose;
(vi) an agent retained by us to evaluate your creditworthiness, provided that the information is required for and is to be used only for that purpose;
(vii) the Brand Entity in order to promote additional products and services offered by that entity that may interest you, provided that the information is required for and is to be used only for that purpose;
(viii) a law enforcement agency whenever we have reasonable grounds to believe that you have knowingly supplied us with false or misleading information or are otherwise involved in unlawful activities;
(ix) a public authority or agent of a public authority if, in our reasonable judgment, it appears that there is imminent danger to life or property which could be avoided or minimized by disclosure of the information; or
(x) a public authority or agent of a public authority, for emergency public alerting purposes, if a public authority has determined that there is an imminent or unfolding danger that threatens the life, health or security of an individual and that the danger could be avoided or minimized by disclosure of the information.
Express consent may be taken to be given by a subscriber where the subscriber provides:
(i) written consent;
(ii) oral confirmation verified by an independent third party;
(iii) electronic confirmation through the use of a toll‐free number;
(iv) electronic confirmation via the Internet;
(v) oral consent, where an audio recording of the consent is retained by us; or
(vi) consent through other methods, as long as an objective documented record of your consent is created by you or by an independent third party.
15. LIMITS ON LIABILITY FOR EMERGENCY SERVICES PROVIDED ON A MANDATORY BASIS
This subsection applies only to the provision of emergency services on a mandatory basis. In respect of the provision of emergency services on a mandatory basis, Cityfone is not liable for:
(i) libel, slander, defamation or the infringement of copyright arising from material or messages transmitted over Cityfone’s network from the subscriber’s property or premises or recorded by the subscriber’s equipment or Cityfone’s equipment;
(ii) damages arising out of the subscriber’s act, default, neglect or omission in the use or operation of the Equipment;
(iii) damages arising out of the transmission of material or messages over Cityfone’s network on the subscriber’s behalf which is in any way unlawful; or
(iv) any act, omission or negligence of other companies or telecommunications systems when their facilities are used in establishing connections to or from the subscriber’s facilities and equipment.
Except in cases where negligence on Cityfone’s part results in physical injury, death or damage to your property or premises, Cityfone’s liability for negligence related to the provision of emergency services on a mandatory basis is limited to the greater of $20 and three times the amount (if any) you would otherwise be entitled to receive as a refund for the provision of defective Services. However, Cityfone’s liability is not limited by this section in cases of deliberate fault, gross negligence or anti‐competitive conduct on Cityfone’s part or in cases of breach of contract where the breach results from Cityfone’s gross negligence.
The Services may also be covered by certain tariffs. In the event of a conflict or inconsistency between this Agreement and any applicable tariff, the tariff shall apply.
17. TERMINATION OF SERVICES BY YOU
Not applicable to residents of Québec: Unless otherwise agreed or otherwise permitted by applicable law, you may terminate the Services and this Agreement at any time by providing Cityfone thirty (30) days notice provided that the service agreement period has expired. Applicable only to residents of Québec: You may terminate the Services and this Agreement by sending us a written, dated notice, with such termination effective upon the date of the notice or a future date specified therein, whichever is later. You can notify a Cityfone Customer Care representative either by telephone at 1.888.322.2160 or in writing to Cityfone at #101‐3991 Henning Drive, Burnaby BC, V5C 6N5. If the Services are terminated by you, you will remain liable for all accrued fees and charges incurred up to the point of deactivation together with any applicable early cancellation fee. You will not be refunded for any unused airtime or data units.
18. TERMINATION OF SERVICES BY CITYFONE
Not applicable to residents of Quebec: Subject to applicable provincial laws, Cityfone may terminate your Services immediately for any reason by notifying you in writing at least 30 days before the Services are to be terminated. Applicable only to residents of Québec: Cityfone may terminate your Services upon no less than 60 days’ advance notice to you, unless you are in default of your obligations under this Agreement, as described in this section. Cityfone may suspend or terminate your Services immediately, without notice and without liability to Cityfone, if you misuse or abuse the Services, or if you breach any other terms of this Agreement, including, but not limited to, non‐payment of charges due to Cityfone or if Cityfone has invalid subscriber registration information. Your Services may also be suspended or terminated immediately, without notice and without liability to Cityfone, in order for Cityfone to preserve the line integrity of the network, or comply with any law and/or tariff. If the Services are terminated by Cityfone, you will remain liable for all accrued fees and charges incurred up to the point of deactivation together with any applicable early cancellation fee.
19. EQUIPMENT RETURNS
Subscriber may return Equipment purchased from Cityfone within 30 days from the date of purchase if the Equipment has been used for less than 30 minutes of airtime usage and 150 kilobytes of data usage. In such event, Cityfone shall refund to the subscriber the purchase price for the returned Equipment provided that the subscriber returns the Equipment at their cost in its original condition, together with all accessories, manuals, other collateral and the packing materials. Notwithstanding the foregoing sentence, the subscriber shall not receive a refund for the charges incurred for the Services used by the subscriber. Cityfone reserves the right to charge a restocking fee where these conditions are not fully met. You will be billed for all accrued fees and charges incurred up to the point of deactivation.
YOU ACKNOWLEDGE THAT YOU HAVE SELECTED THE EQUIPMENT PROVIDED HEREUNDER AND FURTHER ACKNOWLEDGE AND AGREE THAT NO REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, LEGAL, STATUTORY, CUSTOMARY OR OTHERWISE IS GIVEN OR MADE BY CITYFONE RESPECTING THE EQUIPMENT INCLUDING WITHOUT LIMITATION ITS MERCHANTABLE QUALITY, CONDITION, DESIGN, OPERATION, WORKMANSHIP OR FITNESS FOR A PARTICULAR PURPOSE. ANY APPLICABLE WARRANTY SHALL BE THAT OF THE MANUFACTURER OF THE EQUIPMENT ONLY, WHICH EXTENDS DIRECTLY TO YOU.
(i) Not applicable to residents of Québec: To the extent permitted by applicable law, unless we agree otherwise, any claim, dispute or controversy, whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether pre-existing, present or future, arising out of or relating to the following items will be determined by final and binding arbitration to the exclusion of the courts:
• this Agreement;
• the Services or Equipment;
• oral or written statements, advertisements or promotions relating to this Agreement, the Services or Equipment; or
• the relationships that result from this Agreement.
(ii) Not applicable to residents of Québec: Where applicable, arbitration will be conducted in the province in which you reside, on a simplified and expedited basis by one arbitrator pursuant to the current laws and rules relating to commercial arbitration in the province or jurisdiction in which you reside on the date of the notice. Cityfone will pay all reasonable costs associated with any such arbitration. Any such arbitration will be conducted in accordance with our Arbitration Protocol, which is available here.
Cityfone may assign or transfer this Agreement in whole or in part or any of our rights or obligations hereunder without your consent. Upon assignment, Cityfone shall be released from all responsibility and liability hereunder. The subscriber may not assign this Agreement without the express written consent of Cityfone. Subject to the restrictions on assignment herein contained, this Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns.
If any term, provision or condition of this Agreement shall be held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining terms, provisions and conditions shall be and remain in full force and this Agreement shall be construed as if such invalid, illegal or unenforceable term, provision or condition had never been contained herein.
24. NO WAIVERS
If Cityfone fails to enforce any of the provisions of this Agreement or any rights provided in the Agreement, Cityfone will not be considered to have waived those provisions or rights nor shall such failure to enforce such provisions or rights in any way affect the validity of this Agreement. The failure of Cityfone to exercise any of these provisions or rights will not preclude or prejudice Cityfone from later enforcing or exercising the same or any other provision or right which it may have under this Agreement.
25. GOVERNING LAW
This Agreement is governed exclusively by the laws of the province in which your billing address is located, but if your billing address is located outside of Canada, this Agreement is governed exclusively by the laws of the province of Ontario and you submit to the jurisdiction of the courts of Ontario. Please note that your rights may vary by province.
Terms and conditions in this Agreement, which by their sense and context are intended to survive termination, shall survive.
27. COMPLETE AGREEMENT
You acknowledge that there are no other terms and conditions of this Agreement, except as expressly contained or expressly incorporated by reference herein.
This Agreement may not be amended or modified by the subscriber. Subject to section 4, Cityfone may amend or modify this Agreement or any aspect of the Services by giving notice of such amendment or modification. The subscriber’s continued use of the Services following Cityfone’s notice of amendment or modification shall constitute acceptance of such amendment and/or modification by the subscriber. Where required under applicable provincial laws, subscribers will receive a notice of an amendment to the Agreement or the Services at least 30 days before the amendment comes into force, setting out the amendment, the effective date of the amendment and a description of the subscriber’s rights to refuse the amendment, rescind or if the amendment increases the subscriber’s obligations or reduces Cityfone’s obligations, cancel the contract, without cost, penalty or early cancellation fee, in each case by sending Cityfone a notice to that effect not later than 30 days after the amendment comes into force.
All written notices given by you, shall be made to Cityfone at:
101‐3991 Henning Drive
Burnaby, BC V5C 6N5.
Attention: Customer Care Department