Terms of Service

These Terms of Service constitute the agreement ("Agreement") between Gemstelecom.com ("we," "us" or "Gemstelecom") and the user ("you", "user", "customer") of Gemstelecom 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 or any other IP connection device ("Device" or "Equipment"), used in conjunction with the Service and it applies to all lines on each Gemstelecom account. If you purchased Equipment from a retail store, or a provider other than Gemstelecom ("Retail Provider"), you are a "Retail Customer" for purposes of this Agreement.

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 ITS TERMS AND CONDITIONS.

1. SERVICE TERM.

1.1 (a) Service Term. Service is offered and paid for on a prescribed recurring basis for a term that begins on the date that Gemstelecom activates your Service and ends on the day before the same date in the following period ("Service Term"). Subsequent terms of this Agreement automatically renew for the same Service Term unless you give us written notice of disconnection at least ten (30) days before the end of the applicable Service Term. You are purchasing the Service for the full Service Term, meaning that if you attempt to disconnect Service prior to the end of the applicable Service Term, you will be responsible for all charges relating to the then-current Service Term, including unbilled charges, plus a disconnection fee, if applicable, all of which will immediately become due and payable. You will also be responsible for charges for the following Service Term in the event that you do not provide the requisite thirty-day disconnect notice as described above.

1.1(b) Other Commitments. If you accept an equipment upgrade or other promotional or plan benefit, such as a free month of Service, free installation, a rebate or other incentive, there may be a commitment associated with the benefit you accepted ("Commitment"). To the extent there is a Commitment, it begins on the date you activate the new equipment or accept the promotion or benefit. The Commitment period will be disclosed as part of the promotion or plan. If you disconnect service prior to the end of the Commitment period, you agree to pay Gemstelecom a recovery fee in an amount equal to the difference between the price you paid and the regular price of the good, service or other benefit you received at the time the Commitment period began. Recovery fees are cumulative and in addition to any other charges or fees you may owe Gemstelecom, including any disconnection fees.

1.2 Residential Use of Service and Device. If you subscribe to Gemstelecom'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 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.

1.3 Business Bundles Use of Service and Device. If you subscribe to Gemstelecom's Business Bundle, the Service and Device are provided to you as a small business user or business traveler. 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 small business or business travel usage patterns, that you have at any time used the Service or the Device for any of the activities mentioned above or similar activities.

1.4 Prohibited Uses: Unlawful Uses and Inappropriate Conduct

You shall use the Service and the Device only for lawful purposes. You shall not use the Service or Device in any way that is improper or inappropriate, including in a manner that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, or any similar behavior. In addition, you shall not use the Service or the Device to impersonate another person; send bulk unsolicited messages; use robots, data mining techniques or other automated devices or programs to catalogue, download, store or otherwise reproduce or distribute information from the Service or use any such automated means to manipulate the Service; use the Service to violate any law, rule or regulation; violate any third party's intellectual property or personal rights; or exceed your permitted access to the Service. Subject to applicable law, we may, but are under no obligation to, monitor usage of the Service for violations of this Agreement. We may remove or block any or all communications if we suspect a violation of this Agreement or if we deem it necessary in order to protect the Service, or Gemstelecom, its parent, affiliates, directors, officers, agents and employees from harm. We reserve the right to immediately disconnect your Service without notice, if, in our sole and absolute discretion, we determine that you have used the Service or the Device for an unlawful purpose or in ways mentioned above. In the event of such disconnection you will be responsible for all fees and charges due under this Agreement, including those referred to in Section 2.1, plus a disconnection fee, if applicable, all of which will be immediately due and payable. 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, Gemstelecom will provide customer and call detail information in response to lawful government requests, subpoenas, court orders and to protect its rights and property, and in response to law enforcement requests where the failure to disclose the information may lead to imminent harm to the customer or others. Furthermore, Gemstelecom reserves all of its rights at law and equity to proceed against anyone who uses the Services illegally or improperly.

If you use the service or the device in a way that is inconsistent with the normal use for your service or plan, you will be required, at Gemstelecom's sole discretion, to pay the rates for the service or plan that would apply to the way you used the service or device, or terminate the plan. For example, if you subscribe to any of our residential plans, and you are notified that your usage is inconsistent with normal residential use, you may thereafter be required to pay our higher rates for commercial service for all periods in which your use of our service or the device was inconsistent with normal residential use. More than 3,500 minutes per line per month for unlimited residential calling and for unlimited small business calling will not be considered normal use. The creation or use of related multiple accounts or excessive residential lines to circumvent these levels shall also be considered inconsistent with normal use. Usage over these levels or other inconsistent use will result, in Gemstelecom's sole discretion, in immediate mandatory transfer to another appropriate plan, suspension or termination of service. You acknowledge that if your service is terminated under this provision, you are subject to all applicable termination charges.

1.5 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 the Service as you travel, Gemstelecom offers and supports services only in Canada, the United States and certain other countries. Gemstelecom's Service is designed to work generally with unencumbered high-speed internet connections. However, if the high-speed internet connection you are using is not within a Gemstelecom service area, and/or your ISP or other broadband provider places restrictions on the usage of Gemstelecom services, Gemstelecom does not represent or warrant that use of the Service by you is permitted by any other jurisdictions or by any ISP or broadband provider. 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 in violation of laws of jurisdictions outside of Gemstelecom service areas.

1.6 Copyright; Trademark; Unauthorized Usage of Device; Firmware or Software.

(a) Copyright; Trademark. The Service and Device and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on our websites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All of our websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") are and will at all times remain our exclusive property. Nothing in this Agreement grants you the right or license to use any of our marks.

(b) Unauthorized Usage of Device; Firmware or Software. For residential and business plan customers only, you (i) have not been granted any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement, and (ii) expressly agree that the Device is exclusively for use in connection with the Service and that we will not provide any passwords, codes or other information or assistance that would enable you to use the Device for any other purpose. We reserve the right to prohibit the use of any interface device that we have not provided to you. You hereby represent and warrant that you possess all required rights, including software and/or firmware licenses, to use any interface device that we have not provided to you. In addition, you shall indemnify and hold us harmless against any and all liability arising out of your use of such interface device with the Service. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.

1.7 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 all charges through the end of the current Service Term, including unbilled charges, plus a disconnection fee, if applicable, all of which will immediately be 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.

1.8 Theft of Service. You shall not use or obtain the Service in any manner that avoids Gemstelecom policies and procedures including in an illegal or improper manner. 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 whether or not it involves a stolen Device. Gemstelecom reserves all of its rights at law and equity to proceed against anyone who uses the Services or Device illegally or improperly.

1.9 Return of Device (Applies to Residential and Business Plan customers only)

(a) Retail Customers. A Retail Customer may only return the Device to the Retail Provider. All returns will be subject to the return policy of such Retail Provider. We will not accept any Device returned to us from a Retail Customer.

(b) Non-Retail Customers. Non-Retail Customers - may return the Device to us if 1) you cancel services within the Money Back Guarantee period and 2) you return the Device to us with a valid return authorization number within fourteen (14) days of the date you disconnected the Service. 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 1-877-652-3451.

1.10 Number Portability.

(a) Single line Accounts. You may be able to take, or "port," your current number to another service provider. If you ask your new service provider to port a number from us, and we receive your request from the new service provider, we will terminate our service for that number shortly after notification to Gemstelecom by the relevant carrier(s) of the successful completion of the port. Once your service is terminated and the port is completed, you will remain responsible for all charges and fees through the end of that billing cycle, including any cancellation fees. If a port is unsuccessful for any reason, your service and your agreement with us will not terminate, you will remain a Gemstelecom customer, and you will continue to be responsible for all charges and fees associated with your Gemstelecom service.

(b) Multiple-line Accounts. If you request your new service provider to port a number from us and you have multiple numbers assigned to your account and/or additional devices on your account, you are required to inform us of your intent to terminate all the services on your account, prior to the successful completion of the requested port or we will select the most appropriate billing plan for any remaining numbers and/or devices on your Gemstelecom account, and you will continue to be responsible for all the charges and fees associated with the remaining services on your Gemstelecom account. Once the port of the requested number is completed, you will remain responsible for all charges and fees through the end of that billing cycle, including any cancellation fees applicable to the ported number.

1.11 Service Distinctions. The Service is not a traditional telecommunications service and we provide it on a best efforts basis. Things beyond our control may affect the Service, such as power outages, fluctuations in the Internet, your underlying ISP or broadband service. Other things may affect Service, such as maintenance. Gemstelecom will act in good faith with a view to minimizing disruptions to your use of and access to Service. Important distinctions exist between a traditional telecommunications service and our Service, and our Service is subject to different regulatory treatment than a traditional telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.

1.12 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.

1.13 Special Dialing. The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls, 900 or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.

1.14 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. As a result, someone with your phone number may not be able to utilize a reverse directory to look up your address.

1.15 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.

1.16 Compatibility 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 security system with the Service.

(b) Certain Broadband, Cable Modem and Other Services. You acknowledge 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.

1.17 Customer Service. We offer varying types and levels of customer service depending upon a number of factors, including the Service you are using and the problems you are experiencing. For more information on our customer service options, please review the "Help" section of our website located at www.gemstelecom.com. We assume no obligation to provide support services for any third party products or services, or problems with the Service caused by third party products or services. Unless you have entered into a separate services agreement with us, we may change the customer service options at any time.

2. CHARGES; PAYMENTS; TAXES; DISCONNECTION

2.1 Billing. When the Service is activated, you must provide us with a valid email address and a payment method that we accept. We reserve the right to stop accepting your payment method or your payments. If your payment method expires, you close your account, your billing address changes, or your payment method is cancelled and replaced on account of loss or theft, you must advise us at once. We will bill all charges, fees, applicable taxes and surcharges for each Service Term 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 payment method, including but not limited to:

activation fees; Service fees; usage charges; 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. Gemstelecom may introduce new products and services at special introductory pricing. Introductory pricing may change at Gemstelecom's discretion. Where required by law, notification of 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. Gemstelecom bills usage charges in full minute increments that are rounded up to the next full minute unless otherwise set forth in the rate schedules found on our website. Gemstelecom bills fractional usage charges in full cents that are rounded up when the value is $.005 or more and down when the value is less than $.005, unless otherwise set forth in the rate schedules found on our website.

The above fees are defined as follows:

Activation Fee - This fee covers charges for setting up your account and activating you on our system.

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, Gemstelecom will bill you for the minutes you use above your allowance. Gemstelecom 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 Canada, the U.S. and Puerto Rico. However, if you are on an unlimited calling plan, Gemstelecom will not charge you for calls to France, Ireland, Italy, Spain and the UK that terminate to another Gemstelecom line or a landline telephone.

Advanced Features, Add-Ons, Premium Services - Gemstelecom charges additional fees for enhanced features, add-ons, and other added products and services.

Equipment Purchases - In most instances, you will pay for equipment associated with your Gemstelecom service with your payment method. However, there may be occasions when Gemstelecom will offer you the option to bill equipment to your account.

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

2.2 Billing Disputes. You must notify us in writing within seven (7) days after receiving your statement from your credit card issuer if you dispute any Gemstelecom 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 directed to Gemstelecom Customer Care at 1-877-652-3451

2.3 Payment and Collection.

(a) Payment. Your subscription to the Service authorizes us to collect from your payment method. This authorization will remain valid until thirty (30) days after we receive written notice from you terminating our authority to charge your payment method, whereupon we will charge you 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 payment method is declined or reversed, your payment method expires and you have not provided us with a valid replacement payment method 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.

2.4 Discontinuation 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 Service Term charges. If your Service is disconnected on account of your breach of any provision of this Agreement, you will be responsible for all charges through the end of the current Service Term, including unbilled charges, plus the disconnection fee, if applicable, all of which will immediately be due and payable.

Gemstelecom will pursue collection for unpaid amounts on disconnected accounts and may report to and exchange credit and personal information with any credit/consumer reporting agency and financial institution relating to this Agreement.

2.5 Taxes. Federal, provincial, municipal, local or other governments may assess taxes, surcharges and/or fees on your use of Gemstelecom service. These charges may be a flat fee or a percentage of your Gemstelecom charges and may change from time to time without notice. These charges are based on the rates applicable to the address you provided to us. 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 payment method 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.

2.6 Disconnection fees (Applies only to Residential and Business Plan Customers). For termination of service before the end of a contract, a disconnection fee will be applicable. Either the user will pay for 50% of the remaining contract or the user will pay for three months of service. Which ever one of these is less costly will be applied.

2.7 Limitations and Conditions.

All residential plans are limited to 3500 minutes of usage. Users will be notified in the case where a user is close to this limit;

• Service is cancelled within the first thirty (30) days following the activation of the Service and activation occurs when you place your order for service;
• If you purchased the Device at www.Gemstelecom.com, we receive the Device in original condition, reasonable wear and tear excluded, within fourteen (14) days of cancellation of your Service;
  • You return proof of purchase with the Device, with the UPC or bar code intact, together with the original packaging, all parts, accessories, and documentation;
  • Prior to returning the Device to us, you obtain a valid return authorization number from our customer care department which can be reached at 1-877-652-3451; and

2.8 Payphone Charges. If you use our "Toll Free Plus" feature or any toll free feature that we offer in the future, we will be entitled to recover from you any charges imposed on us either directly or indirectly in connection with toll free calls made to your number.

2.9 No Refunds for Pre-Paid Service Plan Customers. Subject to the Money Back Guarantee and applicable law, we will not refund any Service Fees or any other amounts paid in connection with any pre-paid Service plans.

2.10 No Credit for Non-Usage or Misdialing. Neither non-usage of the service nor misdialing while using the service entitle you to a credit for, or refund of, any portion of a payment made to us.

3. EMERGENCY SERVICES - 911 DIALING

3.1 Availability of E911 Dialing.

Gemstelecom offers a form of 911 service (911 Dialing) that is similar to traditional 911 service but has some important differences and limitations when compared with enhanced 911 service (E911) available in most locations in conjunction with traditional telephone service. With both traditional 911 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 Gemstelecom 911 service, your call is sent to a national emergency call centre. The call centre operator will request or confirm your location information and then transfer your 911 call to the emergency response centre nearest your location. You should be prepared to provide or 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 911 again.

3.2 Registration of Physical Location. You should ensure your location information, when registered with Gemstelecom, is kept current at all times. In case you are not able to speak during the 911 call, the call taker would dispatch emergency response vehicles to your last registered address. You need to update your 911 Dialing information if you move your device to a different location and/or if you add a new line to your account. Regardless of what address you register for a, the national emergency response centre does not receive your phone number or physical location information when you place a 911 call. Your 911 Dialing service is activated when you subscribe to Gemstelecom.

3.3 Service Outages. 911 Dialing service will not function in the event of a power or broadband outage or if your broadband, ISP or Gemstelecom 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 911 Dialing.

3.4 User Responsibilities

(a)Changing Number /Adding/Porting a New Numbers. You must successfully register your location of use for each changed, newly added or newly ported number in order for 911 Dialing to fu