MENCH MEDIA TERMS OF SERVICE

These Terms of Service constitute the agreement ("Agreement") between MENCH MEDIA ("we," "us" or "MENCH MEDIA") and the user ("you", "user", "customer") of MENCH MEDIA's residential services and any related products or services ("Service"). This Agreement governs both the Service and any devices, such as an IP phone, Analog Telephone Adapter/Router or any other IP connection device ("Device" or "Equipment"), used in conjunction with the Service. BY ACTIVATING OR USING THE SERVICE, YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ AND UNDERSTAND FULLY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

Nextfone 911 Service

Nextfone offers a form of 9-1-1 service (9-1-1 Dialing) that is similar to traditional 9-1-1 (911) service but has some important differences and limitations when compared with enhanced 9-1-1 service (E911) available in most locations in conjunction with traditional telephone service. With both traditional 9-1-1 and E911 service, your call is sent directly to the nearest emergency response centre. In addition, with E911 service, your call back number and address are visible to the emergency response centre call-taker. With Nextfone's 9-1-1 service, your call is also directly to the nearest emergency response centre, but your call back number and address is not necessarily visible to the 911 operator.  You should be prepared to confirm your address and call-back number with the operator. Do not hang up unless told directly to do so and if disconnected, you should dial 9-1-1 again.

Your 9-1-1 Dialing service is activated when you subscribe to Nextfone service. You should ensure your location information that you provided when you registered with Nextfone is kept current at all times. In case you are not able to speak during the 911 call, the call taker will dispatch emergency response vehicles to your last registered address. Remember that you must update your 9-1-1 Dialing information if you move your device to a different location, travel in Canada with your adapter, and/or if you add a new line to your account. You can update your 9-1-1 Dialing address by e-mailing 911support@mynextfone.com.

Remember that the 9-1-1 Dialing service will not function in the event of a power or broadband outage or if your broadband, ISP or Nextfone service is suspended or terminated.

You should inform any household residents, guests and other persons who may be present at the physical location where you utilize the Nextfone service, of the important differences in and limitations of VoIP 9-1-1 Dialing service as compared with E911 service, as set out above.

Traveling with 911

Unlike traditional phone lines, you can use Nextfone anywhere. Nextfone service is portable to any location with broadband Internet access. Since Nextfone uses the address you provide to determine the nearest emergency response centre, when you move or travel with your phone adapter in Canada, you must update your new location. It's free and easy – just send an e-mail to 911support@mynextfone.com and make sure you include your telephone number, current registered address as well as the NEW address you would like 911 service to be activated for. You will receive an email confirming your service is activated for 9-1-1 dialing.

Please note that it can take several hours before your new settings take effect. Remember, when you add a line, change your number or cancel your number portability request, you will need to activate 911 Dialing again.

1. EMERGENCY SERVICES - 9-1-1 DIALING
1.1 Non-Availability of Traditional 9-1-1 or E9-1-1 Dialing Service.

Nextfone Canada offers a form of 9-1-1 service (9-1-1 Dialing) that is similar to traditional 9-1-1 service but has some important differences and limitations when compared with enhanced 9-1-1 service (E9-1-1) available in most locations in conjunction with traditional telephone service. With both traditional 9-1-1 and E9-1-1 service, your call is sent directly to the nearest emergency response centre. In addition, with E9-1-1 service, your call back number and address are visible to the emergency response centre call-taker. With Nextfone's 9-1-1 service, your call is also sent directly to the nearest emergency response centre, but your call back number and address is not necessarily visible to the 911 operator.  You should be prepared to confirm your address and call-back number with the operator. Do not hang up unless told directly to do so and if disconnected, you should dial 9-1-1 again.

1.2 Registration of Physical Location Required. You should ensure your location information, when registered with Nextfone, is kept current at all times. In case you are not able to speak during the 9-1-1 call, the call taker would dispatch emergency response vehicles to your last registered address. You need to update your 9-1-1 Dialing information if you move your device to a different location and/or if you add a new line to your account. Your 9-1-1 Dialing service is activated when you subscribe to Nextfone service.

1.3 Service Outages. 9-1-1 Dialing service will not function in the event of a power or broadband outage or if your broadband, ISP or Nextfone Canada service is suspended or disconnected. Following a power failure or disruption, you may need to reset or reconfigure your Device prior to utilizing the service, including 9-1-1 Dialing.

1.4 Re-Registration Required if You Change Your Number or Add or Port New Numbers. You must successfully register your location of use for each changed, newly added or newly ported number in order for 9-1-1 Dialing to function.

1.5 Network Congestion; Reduced Speed for Routing or Answering 9-1-1 Dialing Calls. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 9-1-1 Dialing call made utilizing the Service as compared to traditional 9-1-1 Dialing over traditional public telephone networks.

1.6 Conveying Limitations to other household residents and guests. You should inform any household residents, guests and other persons who may be present at the physical location where you utilize the Nextfone service, of the important differences in and limitations of VoIP 9-1-1 Dialing service as compared with E9-1-1 service, as set out above.

1.7 Disclaimer of Liability and Indemnification. We do not have any control over whether, or the manner in which, calls using our 9-1-1 Dialing service are answered or addressed by any local emergency response centre. We disclaim all responsibility for the conduct of local emergency response centres and the national emergency calling centre. We rely on third parties to assist us in routing 9-1-1 Dialing calls to local emergency response centres and to a national emergency calling centre. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither Nextfone nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 9-1-1 Dialing service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless Nextfone, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, legal fees and expenses) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 9-1-1 Dialing, incorrectly routed 9-1-1 Dialing calls, and/or the inability of any user of the Service to be able to use 9-1-1 Dialing or access emergency service personnel.

1.8 Alternate 9-1-1 Arrangements. If you are not comfortable with the limitations of the 9-1-1 Dialing service, you should consider having an alternate means of accessing traditional 9-1-1 or E9-1-1 services or disconnecting the Service.

2. SERVICE
2.1 (a) Monthly Term. Service is offered on a monthly basis for a term that begins on the date that MENCH MEDIA activates your Service and ends on the day before the same date in the following month. Subsequent terms of this Agreement automatically renew on a monthly basis unless you give us written notice of non-renewal at least ten (10) days before the end of the monthly term in which the notice is given. You are purchasing the Service for full monthly terms, meaning that if you attempt to disconnect Service prior to the end of a monthly term, you will be responsible for the full month's charges to the end of the then-current term, including, without limitation, unbilled charges, plus a disconnection fee, if applicable, all of which will immediately become due and payable. You will also be responsible for the next full month's charges in the event that you do not provide the requisite ten-day notice of disconnection prior to the expiration of the then-current term. Expiration of the term or Service disconnection will not excuse you from paying all accrued and unpaid charges due under this Agreement. Notwithstanding the foregoing, if you disconnect MENCH MEDIA service after the Money Back Guarantee period, but within the first twelve months, MENCH MEDIA charges a disconnection fee of $40.00 CDN per line.

2.1(b) Other Term Commitments. If you accept an equipment upgrade or other promotion, such as a free month of service, a rebate or other incentive, there may be a term commitment associated with the benefit you accepted. Your term begins the date you activate the new equipment or accept the promotion and ends on the last day of the commitment period. The commitment period will be disclosed as part of the promotion. If you disconnect service prior to the end of the commitment period, you agree to pay MENCH MEDIA a recovery fee for the equipment and/or promotion you accepted. Recovery fees are cumulative and in addition to any other charges or fees you may owe MENCH MEDIA and any fees or charges MENCH MEDIA requires upon service disconnection, such as those described in Section 3.4. Each recovery fee is an amount equal to the difference between the price you paid and the regular price of the good or service at the time you accepted the equipment or promotion.

2.2 Residential Use of Service and Device. If you subscribe to MENCH MEDIA's residential services, the Service and the Device are provided to you solely for residential use. You shall not resell or transfer the Service or the Device to another party without our prior written consent. You are prohibited from using the Service or the Device for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately disconnect or modify your Service if we determine, in our sole and absolute discretion, that your use of the Service or the Device is, or at any time was, inconsistent with normal residential usage patterns. In addition, you will be required to pay our higher rates for commercial service for all periods in which your use of the Service or the Device was inconsistent with normal residential use.


2.3 Prohibited Uses.

(a) Unlawful. You shall use the Service and the Device only for lawful purposes. We reserve the right to immediately disconnect your Service if, in our sole and absolute discretion, we determine that you have used the Service or the Device for an unlawful purpose. In the event of such disconnection you will be responsible for the full month's charges to the end of the current term, including, without limitation, unbilled charges, plus a disconnection fee, if applicable, all of which will become immediately due and payable upon Service disconnection. If we believe that you have used the Service or the Device for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, MENCH MEDIA will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others.

(b) Inappropriate Conduct. You shall not use the Service or the Device in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, or any similar behavior. We reserve the right to immediately disconnect your Service if, in our sole and absolute discretion, we determine that you have used the Service or the Device in any of the aforementioned ways. In the event of such disconnection, you will be responsible for the full month's charges to the end of the current term, including, without limitation, unbilled charges, plus a disconnection fee, if applicable, all of which will become immediately due and payable upon Service disconnection. If we believe that you have used the Service or the Device in any of the aforementioned ways, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, MENCH MEDIA will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others

2.4 Use of Service and Device by Customers Outside Canada and the United States. Although we encourage you to use the Service to place calls to foreign countries from within Canada and the United States, and to use your adapter to make calls while outside of Canada and the United States, we do not presently offer or support the Service in any countries other than the United States and Canada. If you use the Service or the Device outside of the United States or Canada, you will be solely responsible for any violations of local laws and regulations resulting from such use. We reserve the right to disconnect your Service immediately if we determine, in our sole and absolute discretion, that you have used the Service or the Device outside of the United States or Canada.

2.5 Tampering with the Device or Service. You shall not change the electronic serial number or equipment identifier of the Device or perform a factory reset of the Device without our prior written consent. We reserve the right to disconnect your Service if we believe, in our sole and absolute discretion, that you have tampered with the Device. In the event of such disconnection, you will remain responsible for the full month's charges to the end of the current term, including, without limitation, unbilled charges, plus a disconnection fee, if applicable, all of which will immediately become due and payable. You shall not attempt to hack or otherwise disrupt the Service or make any use of the Service that is inconsistent with its intended purpose.

2.6 Theft of Service. You shall notify us immediately, in writing or by calling our customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft, fraudulent use or unauthorized use of Service. Failure to do so in a timely manner may result in the disconnection of your Service and additional charges to you. Until such time as we receive notice of the theft, fraudulent use or unauthorized use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen, fraudulent or unauthorized use of the Service.

2.7 Return of Device

Customers - may return the Device to us if 1) you cancel services within the thirty (30) Day Money Back Guarantee Period and 2) you return the Device to us within fourteen (14) days of the date you cancelled Service. MENCH MEDIA will also waive the $40.00 CDN cancellation fee subject to the following:

                             The Money Back Guarantee period only applies to the initial line ordered on your account, additional lines are excluded;

                             Service is cancelled within the first thirty (30) days following the activation of the Service;

                             We receive the Device with fourteen (14) days of the date you cancelled Service;

                             We receive the Device in original condition, reasonable wear and tear excluded;

                             You return original proof of purchase with the Device, together with the original packaging, all parts, accessories, and documentation;

                             Prior to returning the Device to us, you contact MENCH MEDIA Canada Customer Care at 1-866-863-2323 or billing@mynextfone.com to obtain a valid return authorization (RA) number.

                             You must pay all costs of shipping the Device back to us unless we indicate otherwise.

So long as you purchased online, disconnect within the thirty (30) Day Money Back Guarantee Period and return your equipment to MENCH MEDIA within fourteen (14) days of cancellation, MENCH MEDIA will issue ONE cancellation fee credit to your account. Unless advised otherwise by MENCH MEDIA Canada Customer Care, when returning your Device, you must write your Return Authorization (RA) number on your packing slip and on the outside of the box. You must also include your contact information, including your name, address, phone number, MENCH MEDIA Account Number, and Return Authorization (RA) number inside the package, then send your package to:

MENCH MEDIA Returns
c/o Leantronics

388 Granton Drive, Unit 201
Richmond Hill, Ontario
L4B 1H7

If you receive cartons or Devices that are visibly damaged, you must note the damage on the carrier's freight bill or receipt and keep a copy. In such event, you must keep the original carton, all packing materials and parts intact in the same condition in which they were received from the carrier and contact our customer care department immediately at billing@mynextfone.com or 1-866-863-2323.

2.8 Number Transfer on Service Disconnection. Upon Service disconnection, we may, in our sole and absolute discretion, subject to applicable law, release to your new service provider the telephone number that you ported (transferred or moved over) to us from your previous service provider and used in connection with your Service if:

                             such new service provider is able to accept such number;

                             your account has been properly terminated;

                             your account is completely current, including payment for all charges and applicable disconnection fees; and

                             you request the transfer upon disconnecting your account.

2.9 Service Distinctions. The Service is not a traditional telecommunications service and we provide it on a best efforts basis. Important distinctions exist between traditional telecommunications services and the Service offering that we provide. The Service is subject to different regulatory treatment than traditional telecommunications services. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.

2.10 Ownership and Risk of Loss. You will own the Device and bear all risk of loss of, theft of, casualty to or damage to the Device, from the time it is shipped to you until the time (if any) when it is returned to us in accordance with this Agreement.

2.11 No 0+ or Operator Assisted Calling; May Not Support x11/8xx Calling. The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 311, 511 and/or other x11 or 8xx numbers (other than certain specified dialing such as 9-1-1 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.

2.12 No Directory Listing. The phone numbers you obtain from us will not be listed in any telephone directories. Phone numbers transferred from your local phone company may, however, be listed unless you have specifically notified us otherwise. As a result, someone with your phone number may not be able to utilize a reverse directory to look up your address.

2.13 Change of Number. You have no property right in any phone number assigned to or used by you. We shall be entitled to change any such number where we determine, in our sole discretion, that such a change is necessary. We shall give you reasonable advance written notice of such a change, except in cases of emergency, where oral notice shall be given.

2.14 Incompatibility with Other Services.

(a) Home Security Systems. The Service may not be compatible with home security systems. You may be required to maintain a telephone connection through your local exchange carrier in order to use any alarm monitoring functions for any security system installed in your home or business. You are responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.
(b) Certain Broadband and Cable Modem Services. You acknowledge that the Service presently is not compatible with prior versions of the AOL broadband service and there may be other services with which the Service may be determined to be incompatible. You further acknowledge that some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties or conditions regarding the compatibility of the Service with any particular broadband service.

3. CHARGES; PAYMENTS; TAXES; DISCONNECTION
3.1 Billing. When the service is activated, you must provide us with a valid email address and a credit card number from a card issuer that we accept. We reserve the right to stop accepting credit cards from one or more issuers. If your credit card expires, you close your account, your billing address changes, or your credit card is cancelled and replaced on account of loss or theft, you must advise us at once. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which we decide to bill in arrears) to your credit card, including but not limited to:
　

activation fees; monthly Service fees; international usage charges; advanced feature charges; premium services; add ons; equipment purchases; taxes; disconnection fees; and shipping and handling charges.

The amount of such fees and charges shall be published on our website and may change from time to time. Notification of monthly invoices will be sent to you via your email address on file with us. We reserve the right to bill at more frequent intervals if the amount you owe to us 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 our website.

The above fees are defined as follows:

Monthly Service Fee - This is the basic charge associated with your service. This fee includes the calling charges defined by your plan, the features associated with your plan and basic account services.

Usage Charges - If you exceed the number of calling minutes on your plan, MENCH MEDIA will bill you for the minutes you use above your allowance. MENCH MEDIA also bills for calls to directory assistance and other information services.

International Usage Charges - These are the fees associated with calls to locations outside of the US and Canada.

 
Advanced Features, Add-Ons, Premium Services - MENCH MEDIA charges additional fees for enhanced features and services such as Virtual Phone Number and SoftPhone.

Equipment Purchases - In most instances, you will pay for equipment associated with your MENCH MEDIA service with your credit card.

Taxes - MENCH MEDIA is required to bill and collect local, provincial and federal taxes imposed on MENCH MEDIA customers by the various taxing authorities. MENCH MEDIA passes all taxes it collects on to the appropriate taxing authority.

3.2 Billing Disputes. You must notify us in writing within seven days after receiving your credit card statement if you dispute any MENCH MEDIA charges on that statement or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to billing@mynextfone.com or:
Customer Care Billing Department
MENCH MEDIA
895 Don Mills Rd., Suite 400 – Tower 2
Toronto, Ontario, Canada M3C 1W3

3.3 Payment and Collection.

(a) Payment. We only accept payment by credit card. Your subscription to the Service authorizes us to charge your credit card. This authorization will remain valid until 30 days after we receive written notice from you terminating our authority to charge your credit card, whereupon we will charge your credit card for the disconnection fee, if applicable, and any other outstanding charges and disconnect your Service. We may disconnect your Service at any time in our sole and absolute discretion if any charge to your credit card is declined or reversed, your credit card expires and you have not provided us with a valid replacement credit card or in case of any other non-payment of account charges.
(b) Collection. If your Service is disconnected, you will remain fully liable to us for all charges pursuant to this Agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and legal fees and expenses.

3.4 Disconnection; Discontinuance of Service. We reserve the right to suspend or discontinue the Service generally, or to disconnect your Service, at any time in our sole and absolute discretion. If we discontinue the Service generally, or disconnect your Service without a stated reason, you will only be responsible for charges accrued through the date of disconnection, including a pro-rated portion of the final month's charges. If your Service is disconnected on account of your breach of any provision 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, plus the disconnection fee, if applicable, all of which will immediately become due and payable.

3.5 Taxes. You are responsible for all applicable federal, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to your credit card as set forth in this Agreement. If you are exempt from payment of such taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate.

3.6 Disconnection Fee You will be charged a disconnection fee of $40.00 CDN per voice line if your Service is cancelled or disconnected for any reason after the thirty (30) day Money Back Guarantee Period and within the first twelve months following the activation of your Service.

3.7 Money Back Guarantee; Limitations and Conditions.

(a) Residential Customers. We offer a thirty (30) Day Money Back Guarantee from the date of activation of your Service The money back guarantee applies only to the first-ordered line per account, not to additional or secondary lines. We will refund the activation fee, the monthly charge for the first month of Service, shipping charges and the disconnection fee provided that:
you have not exceeded 250 minutes of usage;

                             you cancel your Service within the applicable period;

                             you return the Device to us in original condition, normal wear and tear excluded, within 14 days after the cancellation of your Service;

                             the Device is returned in the original packaging with the UPC or bar code intact and is accompanied by all components, accessories, parts, manuals, registration cards and other documentation; and

                             prior to returning the Device to us, you obtain a valid Return Authorization number from our customer care department, which can be reached at billing@mynextfone.com or 1-866-863-2323.

Applicable taxes cannot be refunded. You will be responsible for any charges for international usage, payphone calls to MENCH MEDIA toll free numbers and directory assistance. We reserve the right to terminate or revoke this Money Back Guarantee at any time, without prior notice.


4. LIMITATION OF LIABILITY; INDEMNIFICATION; WARRANTIES
4.1 Limitation of Liability. We will not be liable for any delay or failure to provide the Service, including 9-1-1 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:
　

                             an act or omission of an underlying carrier, service provider, vendor or other third party;

                             equipment, network or facility failure;

                             equipment, network or facility upgrade or modification;

                             force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions;

                             equipment, network or facility shortage;

                             equipment or facility relocation;

                             service, equipment, network or facility failure caused by the loss of power to you;

                             outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of the Service caused by any third party;

                             any act or omission by you or any person using the Service or Device provided to you; or any other cause that is beyond our 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, 9-1-1 Dialing) to be connected or completed, or forwarded.

Our aggregate liability under this agreement will in no event exceed the Service charges with respect to the affected time period.

4.2 Disclaimer of Liability for Damages. IN NO EVENT WILL MENCH MEDIA, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU 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 PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, 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 ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 9-1-1 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY OR CONDITION, PRODUCT LIABILITY, TORT (INCLUDING NEGLIGENCE), INTELLECTUAL PROPERTYINFRINGEMENT, STRICT LIABILITY, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.

4.3 Indemnification and Survival.

(a) Indemnification. You shall defend, indemnify, and hold harmless MENCH MEDIA, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, legal fees and expenses) by, or on behalf of, you or any third party or user of the Service, relating to this Agreement or the Services, including, without limitation, 9-1-1 Dialing, or the Device.
(b) Survival. The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive.

4.4 No Warranties on Service. To the extent permitted by applicable law, WE MAKE NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, REASONABLY ACCEPTABLE QUALITY, FITNESS OF THE SERVICE OR DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY OR CONDITION ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY OR CONDITION THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE PROVIDE NO WARRANTY OR CONDITION THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER MENCH MEDIA NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS, OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES DEVICES, OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OUR OR YOUR 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 MENCH MEDIA'S OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY MENCH MEDIA OR MENCH MEDIA'S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OR CONDITION OF ANY KIND.

4.5 Device Warranties

(a) Limited Warranty. Except as set forth herein, if you received the Device new from us and the Device included a limited warranty at the time of receipt, you must refer to the separate limited warranty document provided with the Device for information on the limitation and disclaimer of certain warranties and conditions. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation.
(b) No Warranty. If your Device did not include a limited warranty from us at the time of receipt, to the extent permitted by applicable law, you are accepting the Device "as is", and you are not entitled to replacement, repair or refund in the event of any defect.
(c) Disclaimer. To the extent permitted by applicable law, OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, WE MAKE NO WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTY OR CONDITION OF MERCHANTABLE QUALITY, REASONABLY ACCEPTABLE QUALITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY OR CONDITION ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY OR CONDITION 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 OR CONDITION SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE. DEVICE WARRANTIES DO NOT APPLY TO BUSINESS PLUS CUSTOMERS.

4.6 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.

4.7 Content. You will be liable for any and all liability that may arise out of the content transmitted by or to you or any person, whether authorized or unauthorized, using your Service or Device (each such person, a "User"). You shall ensure that your and your User's use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. We reserve the right to disconnect or suspend your Services and remove your or your Users' content from the Service, if we determine, in our sole and absolute discretion, that such use or content does not conform with the requirements set forth in this Agreement or interferes with our ability to provide Services to you or others. Our action or inaction under this Section will not constitute any review or approval of your or Users' use or content.

5. MISCELLANEOUS
5.1 Governing Law. The Agreement and the relationship between you and us is governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 5.2, you shall submit to the personal and exclusive jurisdiction of the courts located within the Province of Ontario and waive any objection as to venue or inconvenient forum.

5.2 Mandatory Arbitration and No Jury Trial. Except to the extent contrary to applicable law, any dispute or claim between you, any member of your household or any guest or employee of you and us arising out of or relating to the Service or Device will be resolved by arbitration before a single arbitrator administered by a Canadian arbitration organization of our choosing. The arbitration shall take place in Toronto, Ontario and shall be conducted in English. The arbitrator's decision will follow the plain meaning of the relevant documents, and will 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. ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED, except to the extent such a limitation is prohibited by applicable law. All claims shall be arbitrated individually. Except to the extent contrary to applicable law, you shall 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. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND AN AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL PROCEEDINGS IN, ONTARIO.

5.3 No Waiver of Rights. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.

5.4 Entire Agreement. This Agreement, including any future modifications as may occur within the terms of the Agreement, and the rates for Services found on our website constitute the entire agreement between you and MENCH MEDIA and govern the use of the Service by you, members of your household, guests and employees. This Agreement supersedes any prior agreements between you and MENCH MEDIA and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.

5.5 Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.

5.6 French Language. The parties confirm that it is their express wish that this agreement, as well as any other documents relating to this agreement, including notices, schedules and authorizations, have been and shall be drawn up in the English language only. Les parties aux présentes confirment leur volonté expresse que cette convention, de même que tous les documents s'y rattachant, y compris tous avis, annexes et autorisations s'y rattachant, soient rédigés en langue anglaise seulement.

6. FUTURE CHANGES TO THIS AGREEMENT
We may change the terms and conditions of the Service and this Agreement, as well as amounts charged under this Agreement, from time to time. Notices will be considered given and effective on the date posted on www.mynextfone.com, or as otherwise may be required by applicable law. Subject to applicable law, such changes will become binding on you on the date they are posted to our website and no further notice by us is required upon your continued use of the Service. The Agreement as and when posted or otherwise amended in accordance with applicable law, supersedes all previously agreed to electronic and written terms of service, including, without limitation, any terms included with the packaging of the Device and also supersedes any written terms provided to Retail Customers in connection with retail distribution, including, without limitation, any written terms enclosed within the packaging of the Device. If this Agreement is amended and you do not wish to accept the amendment, you may terminate the Agreement as provided in Section 2.1.

7. PRIVACY
7.1 Network Security. MENCH MEDIA Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. MENCH MEDIA is not liable for any lack of privacy which may be experienced with regard to the Service. Please refer to our Privacy Policy at www.mynextfone.com for additional information.

7.2 Personal Information. To the extent that personal information is provided by the customer in connection with this Agreement, the customer confirms that he or she consents, and that all other necessary consents have been obtained, to the use and collection by, and disclosure to, MENCH MEDIA, assignees of MENCH MEDIA, and their respective affiliates, agents and contractors for the following purposes: (i) providing products and services to the customer, (ii) contract management and administration, (iii) establishing a customer relationship and communicating with customers, (iv) developing, implementing and managing products and services for customers, (v) assisting in law enforcement purposes and collecting unpaid debts, (vi) protecting, managing and promoting their business interests and activities; (vii) providing information to the customer on other products and services which may be available; and (viii) otherwise as required or permitted by law. The customer may withdraw his or her consent in respect of clause (vii) above, without affecting his or her other arrangements with MENCH MEDIA, by notifying MENCH MEDIA's Privacy Officer in writing at privacy@mynextfone.com . Further information on MENCH MEDIA's privacy policies, as well as access to any such personal information for purposes of review, correction and updating, may also be obtained by writing to the Privacy Officer. For the purposes of this Section 7.2, "personal information" does not include the name, address and telephone number of a subscriber that appears in a publicly available telephone directory.

Last Updated: June 30, 2006.