Terms of Service.

About these Terms

These Terms of Service (the "Terms") are a binding Master Services Agreement between Cloud Alter Inc., a corporation with its registered office at 20 Teesdale Place, Toronto, Ontario M1L 1L1, Canada ("Cloud Alter", "we", "us"), and the business identified when the Account is created or in an Order ("Customer", "you"). They govern Cloudfonica, TextEnvoy, Optima Saver and any other service Cloud Alter provides under them.

Please read Section 18 carefully: it requires most disputes to be resolved by binding individual arbitration in Toronto, Ontario, and waives class and collective actions. Section 12 limits Cloud Alter's liability. Section 4.5 makes you responsible for all charges and losses caused by fraudulent or unauthorized traffic on your Account.

The Services are offered to businesses only, not to consumers.

1. Definitions

• "Account" means the account through which Customer accesses the Services, including all sub-accounts, API keys, SIP and SMPP credentials, ports, tunnels and instances created under it.
• "Affiliate" means an entity that controls, is controlled by, or is under common control with a party, where "control" means ownership of more than 50% of the voting interests.
• "Agreement" means these Terms, every Order, and the Policies incorporated by Section 2.3.
• "Applicable Law" means all laws, regulations, regulatory decisions and orders, and binding industry rules that apply to a party's activities under the Agreement, including telecommunications, anti-spam, telemarketing, privacy, consumer-protection, sanctions and export-control laws, in every jurisdiction where Customer Traffic originates, transits or terminates.
• "Authorized User" means an employee or contractor of Customer whom Customer permits to use the Account.
• "Business Day" means Monday to Friday, excluding statutory holidays in Ontario.
• "Client Software" means software Cloud Alter makes available for installation on Customer's equipment, including router firmware and operating-system images, Raspberry Pi, PC and virtual-machine images, agents, and their updates.
• "Compliance Confirmation" means the statements Customer confirms when it orders a Service whose Product Schedule requires them.
• "Customer Data" means data submitted to or processed by the Services by or for Customer, including Customer Traffic, call detail records ("CDRs"), message content, delivery receipts, telephone numbers, routing and rate tables, and configuration data. Customer Data excludes Usage Data.
• "Customer Personal Data" has the meaning given in the DPA.
• "Customer Traffic" means voice calls, media, signalling, SMS/MMS messages and other communications originated, routed, relayed, optimized, filtered or terminated through the Services by or for Customer or its End Users.
• "Customer-Selected Provider" means any carrier, SMS supplier, termination provider, gateway operator, integration or other third party that Customer chooses to connect to or route Customer Traffic through, whether or not Cloud Alter facilitates the connection.
• "Documentation" means the user guides, technical specifications and help pages Cloud Alter publishes for the Services, as updated from time to time.
• "End User" means any person who uses or receives communications through Customer's services, including Customer's own customers and resellers and the parties called or messaged.
• "Fees" means all amounts payable for the Services, including subscription, port, instance, hourly, usage, set-up, add-on and pass-through charges.
• "Order" means any online sign-up, plan selection, top-up, port or instance purchase, quote or order form that Cloud Alter accepts. An order form signed by both parties is an "Order Form".
• "Platform Fees" means Fees paid for the Services themselves (subscriptions, ports, instances, hours, set-up and add-ons). It excludes Taxes and pass-through charges for third-party carrier, termination, number, registration or messaging services.
• "Policies" means the Service Level Agreement ("SLA"), the Acceptable Use Policy ("AUP") and the Data Processing Agreement ("DPA"), together with each Product Schedule and each annex to the DPA that applies to a Service Customer orders, each as published at cloudfonica.com/legal or at another address Cloud Alter notifies (or provided with the Order) and amended under Section 2.5.
• "Product Schedule" means a schedule of terms that Cloud Alter publishes for a particular Service, such as the SMS Service Schedule.
• "Services" means the hosted services, platforms, Client Software, APIs, portals and support that Cloud Alter provides under an Order, including Cloudfonica, TextEnvoy and Optima Saver.
• "Sub-processor" has the meaning given in the DPA.
• "Unused Prepayment" means prepaid Platform Fees for any period after the relevant Service ends, plus any remaining prepaid balance for it, excluding service credits and promotional credits.
• "Usage Data" means technical, performance, security and usage metadata that Cloud Alter generates or collects about the operation of the Services (such as port counts, throughput, error rates, IP addresses and fraud signals). It excludes message content and call media.

2. Acceptance and Structure of the Agreement

2.1 How you accept

Customer accepts the Agreement when (a) an Authorized User ticks an unticked box stating that they agree, on behalf of the business named, to the Terms of Service, SLA, AUP and DPA, and any Product Schedule and annex to the DPA for the Service being ordered (each hyperlinked), and clicks "Agree and create account" or "Accept"; or (b) Customer signs an Order or Order Form (electronically or otherwise) that references these Terms. Before submitting, the Authorized User can review and correct the information entered. Cloud Alter will not activate that Service, issue credentials for it or charge Fees for it until one of these has occurred. If you do not agree, do not create an Account or use the Services.

2.2 Authority

The individual accepting the Agreement represents that they have reached the age of majority in their jurisdiction, are authorized to bind Customer, and accept on Customer's behalf. An individual who accepts without that authority is personally liable for Cloud Alter's resulting losses.

2.3 Policies incorporated

The Policies are incorporated into and form part of the Agreement. The Privacy Policy explains how Cloud Alter handles personal information as an organization in its own right. It is provided for transparency and is not part of the Agreement.

2.4 Order of precedence

If documents conflict, this order applies: (a) an Order Form, only for a provision it expressly states it overrides; (b) any applicable annex to the DPA, and then the DPA, for the processing of personal information; (c) an accepted Order (for the plan, rates, regions, add-on choices and Compliance Confirmation recorded in it) and the applicable Product Schedule (which prevails over the Order on all other terms), for the Service it governs; (d) these Terms; (e) the SLA; (f) the AUP; (g) the Documentation. No Order, Order Form or Product Schedule relaxes the AUP unless it says so expressly, and an Order Form that does must also be signed by an officer of Cloud Alter. Terms in Customer's purchase orders, vendor portals or similar documents have no effect, even if Cloud Alter accepts the document.

2.5 Changes to the Agreement

Cloud Alter may amend these Terms and the Policies by posting the amended version at cloudfonica.com/legal and notifying Customer, by email to its administrative contact and in the portal, at least 30 days before the change takes effect (15 days for changes that do not adversely affect Customer). Changes required by Applicable Law, a regulator or a carrier, or needed to address fraud or security, may take effect on the shorter notice reasonably required. Cloud Alter will require re-acceptance under Section 2.1 of any change to Section 12 or 18, or to a Product Schedule's or DPA annex's provisions on liability or the resolution of disputes. If Customer objects to a change, it may terminate the affected Services before the change takes effect and receive a refund of its Unused Prepayment for them. Otherwise, continued use after the effective date is acceptance. No amendment applies to a claim based on events that occurred before it took effect. Prior versions are kept at cloudfonica.com/legal/archive.

2.6 Business use only; Québec

Customer represents that it acquires the Services for business purposes and not for personal, family or household use. Legislation that protects only consumers does not apply to the Agreement. Until Cloud Alter publishes French versions of the Agreement, the Services are not offered to businesses whose principal place of business is in Québec, and Customer represents that its principal place of business is not in Québec.

2.7 Electronic contracting

The Agreement may be formed, amended and evidenced electronically. Ticking a box or clicking an acceptance button is a valid signature and expression of consent, including under Ontario's Electronic Commerce Act, 2000, the U.S. Electronic Signatures in Global and National Commerce Act and the Uniform Electronic Transactions Act as adopted in any state. Cloud Alter's electronic records of acceptance are admissible evidence of the Agreement and its terms.

2.8 Customers with earlier terms

If Customer opened its Account before 1 December 2026, these Terms apply to it from the time it accepts them under Section 2.1. Until then, the terms it accepted earlier continue to apply. On acceptance, these Terms replace the earlier terms, which continue to govern events before acceptance.

3. The Services

3.1 Right to use

Subject to the Agreement and payment of Fees, Cloud Alter grants Customer a non-exclusive, non-transferable, non-sublicensable right during the Term to access and use the Services, through its Authorized Users, for Customer's internal business purposes and to provide Customer's own services to its End Users.

3.2 Client Software licence

Cloud Alter grants Customer a limited, revocable, non-exclusive, non-transferable licence during the Term to install and run Client Software, in object code only, on equipment Customer owns or controls, solely to connect to and use the Services. Client Software is licensed, not sold. Third-party and open-source components are licensed under their own licences, which prevail for those components, and Cloud Alter will make notices and source code available as those licences require. Customer must install updates that Cloud Alter designates as required. Before the Client Software installs updates automatically, sends telemetry (such as device model, software version, port counts, throughput and error rates) or lets Cloud Alter disable features remotely under Schedule A, Cloud Alter will describe those functions and obtain Customer's express consent through a separate unticked box in the portal when Customer downloads or installs the Client Software, as Canada's anti-spam legislation requires. Cloud Alter is not responsible for problems caused by outdated Client Software, unsupported hardware, or third-party tools used to install it.

3.3 Account security

Customer is responsible for its Account, its credentials and all activity under them, whether or not Customer authorized it. Customer must use strong unique passwords, enable multi-factor authentication where available, restrict API, SIP and SMPP access by IP allow-list where available, keep Client Software and connected equipment patched, and notify Cloud Alter promptly at security@cloudalter.com of any suspected compromise.

3.4 Verification

Cloud Alter may request, before or after activating a Service, and Customer must provide, information to verify Customer's identity, ownership, business, licences, use case, traffic sources and End Users ("KYC Information"). Cloud Alter may refuse, limit or suspend the Services until it is reasonably satisfied. Customer must keep KYC Information accurate and current.

3.5 Customer's End Users

Customer is solely responsible for its relationships with its End Users, including their contracts, support, billing, notices, consents and compliance. Cloud Alter has no contract with, and owes no obligation to, End Users.

3.6 Changes to the Services

Cloud Alter may modify, enhance or retire features. If a change materially reduces the core functionality of a Service that Customer has prepaid, Cloud Alter will give 30 days' notice, and Customer's sole remedy is to terminate the affected Service and receive a refund of its Unused Prepayment for it.

3.7 Trials, demos and beta features

Free trials, demonstration environments, and features marked beta, preview or similar are provided "as is", without SLA, support commitment, warranty or indemnity. They may be withdrawn at any time and must not be used for production traffic or personal information. Cloud Alter's total liability for them is USD $100.

3.8 Support

Cloud Alter provides support as described in the SLA. The ticket system in the client portal, reached from cloudfonica.com, is the official support channel. Telegram, WhatsApp, telephone and other channels are offered for convenience only. Messages sent through them are not notices under the Agreement, do not start SLA response times except as the SLA states, and must not contain passwords, API keys or more personal information than is needed.

3.9 Third-party services

The Services interoperate with services and equipment Cloud Alter does not control, including Customer-Selected Providers, gateways, routers, payment processors and messaging apps. Cloud Alter is not responsible for them, and their own terms govern Customer's use of them.

4. Telecommunications Terms

4.1 Cloud Alter's role

Unless an Order expressly states otherwise, Cloud Alter provides software, hosting, bandwidth-optimization and switching technology, and its servers carry Customer Traffic in transit only as part of those Services. Cloud Alter does not sell call termination, SMS routes, telephone numbers, sender IDs, short codes or carrier interconnection. It is not a party to Customer's agreements with Customer-Selected Providers and does not originate or terminate Customer Traffic on its own account. Customer selects and controls its routes, rates, suppliers and End Users. Where Applicable Law imposes obligations on Cloud Alter in relation to Customer Traffic (for example as an intermediate or gateway provider), Customer will provide the information and cooperation Cloud Alter reasonably needs to meet them, and Cloud Alter may impose conditions for that purpose, including on certification, call authentication and traceback.

4.2 Licences and regulatory compliance

Customer is solely responsible for obtaining and maintaining every licence, registration, authorization and filing its services and Customer Traffic require in every jurisdiction where Customer Traffic originates, transits or terminates, and for paying all related fees and contributions. Examples include telecommunications and VoIP licences, CRTC registrations, U.S. FCC filings and Robocall Mitigation Database certification, STIR/SHAKEN obligations, 10DLC, toll-free and short-code registrations, and sender-ID approvals. Customer represents and warrants that its use of the Services, including any use of GSM/SIM gateways or SIM cards, does not involve unlicensed termination, unlawful bypass of an international gateway or interconnection regime, or any other breach of law in any jurisdiction. Customer must provide copies of its licences and registrations on request.

4.3 No emergency calling

THE SERVICES DO NOT SUPPORT, AND MUST NOT BE RELIED ON FOR, CALLS TO 9-1-1, 911, 112 OR ANY OTHER EMERGENCY SERVICE. Unless an Order expressly provides emergency-calling functionality, Customer is solely responsible for providing emergency-calling access, location information and End User notices that Applicable Law requires (including CRTC 9-1-1 obligations, Kari's Law and RAY BAUM'S Act). Cloud Alter is not liable for any inability to reach emergency services.

4.4 No guarantee of completion or delivery

Cloud Alter does not guarantee call completion, call quality, answer-seizure ratios, bandwidth savings, SIM-card longevity, message delivery, delivery receipts, caller-ID or sender-ID display, or that Customer Traffic will not be blocked, filtered, flagged or throttled by carriers, regulators or analytics providers. Performance figures in marketing materials are illustrative and depend on Customer's equipment, routes and traffic.

4.5 Fraudulent and unauthorized traffic

CUSTOMER IS RESPONSIBLE FOR ALL FEES, THIRD-PARTY CHARGES AND LOSSES ARISING FROM ALL TRAFFIC ON ITS ACCOUNT, INCLUDING TRAFFIC THAT IS FRAUDULENT, UNAUTHORIZED OR ARTIFICIALLY INFLATED (such as toll fraud, international revenue share fraud, SMS pumping, Wangiri, and traffic resulting from compromised credentials or equipment), whether or not Customer authorized or knew of it, except to the extent the traffic resulted from unauthorized access to systems or credentials under Cloud Alter's control. Cloud Alter may, but need not, apply fraud controls, spend or credit limits, rate limits and destination blocks. The existence, absence or failure of any such control does not shift responsibility for that traffic to Cloud Alter.

4.6 Traceback and lawful requests

Customer must respond fully to traceback requests from Cloud Alter, carriers, regulators and industry traceback groups within 24 hours, or any shorter period Applicable Law requires, and must cooperate with lawful requests from authorities. Cloud Alter may disclose Account and traffic information to carriers, regulators, traceback groups and law-enforcement agencies where Applicable Law permits or requires, as described in the DPA and the Privacy Policy.

4.7 Recording and monitoring

If Customer enables call recording, monitoring, transcription or message-inspection features, Customer is solely responsible for giving every notice and obtaining every consent Applicable Law requires, including in jurisdictions that require the consent of all parties.

4.8 Records

Customer is responsible for keeping the CDRs, consent records and other records Applicable Law requires it to keep. Customer should export CDRs regularly. Cloud Alter retains them only as the DPA describes and may delete them as Section 14.5 provides.

5. Customer Obligations and Restrictions

5.1 Compliance

Customer will use the Services, and ensure its Authorized Users and End Users use them, only in compliance with the Agreement, the AUP and Applicable Law, including the U.S. Telephone Consumer Protection Act and Telemarketing Sales Rule, Canada's anti-spam legislation (CASL), the CRTC Unsolicited Telecommunications Rules, and privacy laws. Customer must impose on its resellers and End Users terms at least as protective of Cloud Alter as the AUP and this Section 5, and is liable for their acts and omissions as if they were its own.

5.2 Restrictions

Customer will not, and will not permit anyone to: (a) copy, modify, translate or create derivative works of the Services or Client Software; (b) reverse engineer, decompile or disassemble them, except to the extent Applicable Law or an applicable open-source licence expressly permits despite this restriction; (c) sell, resell, rent, lease, sublicense, white-label or provide the Services to third parties, except as part of Customer's own services to its End Users or as an Order expressly allows; (d) remove proprietary notices; (e) circumvent usage limits, licence keys, port or throughput limits, security controls or tenant-isolation controls; (f) run penetration tests, load tests or vulnerability scans without Cloud Alter's prior written consent; (g) access the Services to build a competing product, or publish benchmarks without consent; (h) introduce malicious code; or (i) use the Services in any way that violates the AUP.

5.3 Customer Data

Customer is responsible for the accuracy, quality and legality of Customer Data. Customer represents and warrants that it has, and will keep, all rights, notices and consents needed for Cloud Alter to process Customer Data as the Agreement contemplates. Customer will not submit health information (including information regulated under HIPAA or similar laws), payment-card data, government identification numbers, biometric data, children's data or other sensitive data to the Services, except as message content Customer is lawfully entitled to transmit, unless the parties agree otherwise in writing.

5.4 Customer's environment

Customer is responsible for its own equipment, routers, gateways, SIM cards, internet connectivity, network and firewall configuration, routing and rate tables, and its contracts with Customer-Selected Providers.

6. Fees, Billing and Payment

6.1 Fees

Customer will pay the Fees set out in the applicable Order or, if there is none, on Cloud Alter's pricing page at the time of purchase. Unless an Order says otherwise, Fees are in U.S. dollars, subscription, port and instance Fees are payable in advance, and usage and hourly Fees are deducted from Customer's prepaid balance or invoiced in arrears.

6.2 Prepaid balance

Services may require a positive prepaid balance. When the balance or a usage cap is exhausted, Services may stop automatically, including mid-call or mid-transmission, without liability to Cloud Alter. Low-balance alerts are a courtesy only. Prepaid amounts are not deposits and earn no interest. They are non-refundable except as the Agreement expressly provides (including Sections 2.5, 3.6, 11.2, 13.2, 14.3, 14.5 and 16 of these Terms, Section 4.7 of the SLA and Section 7.3 of the DPA) or Applicable Law requires. If an Account has no paid usage for 12 consecutive months, Cloud Alter may close it on 60 days' notice and will refund the remaining prepaid balance to the original payment method, less a dormancy fee equal to the lesser of USD $25 and that balance. If the refund cannot be completed after reasonable efforts, Cloud Alter will deal with the balance as applicable unclaimed-property law requires or, where no such law applies, hold it for Customer to claim for 3 years, after which Cloud Alter may keep it.

6.3 Payment methods

Customer authorizes Cloud Alter and its payment processors to charge Customer's designated payment method for all Fees when due, including recurring Fees and automatic top-ups Customer enables. Payments through PayPal, card networks or other processors are also subject to the processor's terms. Customer bears bank, wire and currency-conversion charges so that Cloud Alter receives the full amount due.

6.4 Invoices and disputes

Invoices are due within 15 days of the invoice date unless an Order says otherwise. Customer must notify Cloud Alter of any good-faith dispute through the support portal, with reasonable detail, within 30 days of the invoice or charge date; otherwise the invoice or charge is final. Customer must pay undisputed amounts when due. Cloud Alter's CDRs and system records are conclusive evidence of usage, absent manifest error.

6.5 Late payment

Overdue amounts bear interest from the due date until paid at 1.5% per month, calculated and compounded monthly (an effective annual rate of 19.56%), or the highest rate Applicable Law permits, if lower. Customer will reimburse Cloud Alter's reasonable collection costs, including legal fees and collection-agency charges. Despite anything else in the Agreement, interest and any other charges that constitute interest under section 347 of the Criminal Code (Canada) will not exceed the maximum lawful rate; any excess is reduced to that rate, and any excess paid will be credited to Customer.

6.6 Chargebacks

Customer must use the dispute process in Section 6.4 before starting a chargeback or payment reversal. An unjustified chargeback or reversal is a material breach. Cloud Alter may immediately suspend the Services and charge the reversed amount plus a USD $50 administrative fee and any processor fees.

6.7 Taxes

Fees exclude all taxes, duties and levies, including GST/HST, PST, QST, sales, use, value-added, withholding and telecommunications taxes, and regulatory fees and contributions ("Taxes"). Customer pays all Taxes except taxes on Cloud Alter's net income. If Applicable Law requires Customer to withhold any Tax, Customer will increase its payment so that Cloud Alter receives the amount it would have received without the withholding.

6.8 Pass-through charges and penalties

Customer will pay any fines, penalties, surcharges or remediation costs that carriers, registries, payment processors or regulators impose on Cloud Alter because of Customer Traffic or Customer's breach of the AUP, plus Cloud Alter's reasonable handling costs.

6.9 Price changes

Cloud Alter may change Platform Fees on 30 days' notice; the change takes effect 30 days after the notice. Fees that reflect third-party costs may change on 7 days' notice, or on the notice the third party gives Cloud Alter if shorter.

6.10 Credit and security

Cloud Alter may set and change credit limits, require prepayment or a security deposit, and apply any deposit or prepaid balance to overdue amounts.

6.11 No set-off

Customer will pay all Fees without set-off, deduction or counterclaim, except service credits Cloud Alter issues under the SLA.

7. Suspension

7.1 Grounds

Cloud Alter may suspend all or part of the Services, or any Account, sub-account, credential, port, route, number or instance, immediately and, where practicable, with prior notice, if: (a) any undisputed amount remains unpaid 10 days after Cloud Alter gives notice of non-payment; (b) Cloud Alter reasonably believes that Customer, an Authorized User or an End User has breached the AUP or Section 4 or 5; (c) Cloud Alter detects or reasonably suspects fraud, abnormal traffic patterns, a security threat or a compromised Account; (d) a court, regulator, law-enforcement agency, payment processor, upstream provider or carrier requires or requests it; (e) suspension is reasonably needed to protect the Services, other customers, Cloud Alter's infrastructure, IP addresses or reputation, or to prevent blocklisting; or (f) to the extent insolvency law permits, Customer becomes insolvent or subject to bankruptcy, receivership or similar proceedings.

7.2 Scope and restoration

Cloud Alter will use reasonable efforts to limit a suspension to the affected part of the Services and to restore them promptly once the cause is resolved. A suspension under Section 7.1 is not a breach of the Agreement, does not earn service credits, and does not relieve Customer of Fees that accrue during it. Cloud Alter may charge a reasonable reactivation fee.

8. Intellectual Property

8.1 Cloud Alter's property

Cloud Alter and its licensors own all rights, title and interest, including all intellectual property rights, in the Services, Client Software, Documentation, Usage Data, Aggregated Data, and all improvements and derivative works of them, including those based on Feedback. All rights not expressly granted are reserved, and no rights are granted by implication or estoppel.

8.2 Customer Data

As between the parties, Customer owns Customer Data. Customer grants Cloud Alter and its Sub-processors a worldwide, non-exclusive, royalty-free licence during the Term, and afterwards for the retention periods in the DPA, to host, copy, transmit, process and display Customer Data as needed to provide, secure, support and maintain the Services, prevent fraud and abuse, and comply with Applicable Law, in each case as the DPA permits.

8.3 Usage Data and Aggregated Data

Cloud Alter may collect and use Usage Data to operate, secure, support and improve the Services. Cloud Alter may create data that is aggregated and de-identified so that it does not identify Customer or any individual ("Aggregated Data") and use it for any lawful purpose. To the extent Applicable Law permits, Cloud Alter may also use, and share with carriers, payment processors and industry anti-fraud groups, indicators of fraud or abuse, such as telephone numbers, number ranges, IP addresses and traffic patterns associated with fraud or abuse.

8.4 No AI training on content

Cloud Alter will not use message content, call media or recordings to train artificial-intelligence or machine-learning models made available to other customers without Customer's prior written consent. Cloud Alter may use automated tools, including machine-learning tools, within the Services to detect fraud, spam and abuse.

8.5 Feedback

If Customer provides suggestions or other feedback ("Feedback"), Customer grants Cloud Alter a perpetual, irrevocable, worldwide, royalty-free licence to use and exploit it for any purpose without compensation.

8.6 Publicity

Cloud Alter may identify Customer by name and logo as a customer on its websites and in marketing materials. Customer may withdraw this permission at any time by notice to legal@cloudalter.com.

9. Confidentiality

9.1 Definition

"Confidential Information" means non-public information that one party (the "Discloser") discloses to the other (the "Recipient") that is marked confidential or that a reasonable person would understand to be confidential, including pricing, non-public features of the Services, security information and Customer Data. It excludes information that the Recipient can show (a) is or becomes public through no fault of the Recipient; (b) the Recipient knew without restriction before disclosure; (c) the Recipient lawfully received from a third party without restriction; or (d) the Recipient developed independently without using the Discloser's information.

9.2 Obligations

The Recipient will use Confidential Information only to perform the Agreement, protect it with at least reasonable care, and disclose it only (except as Sections 4.6 and 8.3 permit) to its and its Affiliates' employees, contractors, professional advisors and Sub-processors who need to know it and are bound by confidentiality obligations at least as protective as these. These obligations last during the Term and for 3 years afterwards, and for trade secrets and Customer Data for as long as they remain confidential.

9.3 Compelled disclosure

The Recipient may disclose Confidential Information as required by law, court order or a regulator, after giving the Discloser prompt notice where legally permitted, and reasonable cooperation at the Discloser's cost so it can seek protection.

9.4 Injunctive relief

Unauthorized use or disclosure of Confidential Information may cause irreparable harm, and the Discloser may seek injunctive relief in addition to its other remedies.

10. Data Protection and Security

10.1 DPA

The DPA governs Cloud Alter's processing, on Customer's behalf, of personal information contained in Customer Data.

10.2 Security and segregation

Cloud Alter will maintain administrative, technical and physical safeguards appropriate to the nature of the Services, as described in the DPA, including logical segregation of each customer's Customer Data and, for TextEnvoy, a dedicated instance for each customer.

10.3 Customer's backups

Customer is responsible for keeping its own copies of Customer Data, including CDRs and configuration. Unless Customer buys a backup add-on, any backups Cloud Alter keeps exist for its own disaster recovery and are not a service to Customer. Cloud Alter is not liable for loss of Customer Data except to the extent caused by its breach of Section 10.2, and then only for the cost of restoring the data from available backups.

10.4 Hosting locations

Customer Data may be hosted and processed in Canada, the United States and the other locations listed in the DPA. Where Customer selects a hosting region, Cloud Alter will host the instance's primary Customer Data in that region. Support, monitoring and Sub-processors may access it from other countries, and a region selection is not a data-residency commitment unless an Order Form expressly says so.

10.5 Personal information Cloud Alter controls

Cloud Alter handles personal information about Customer's representatives and Authorized Users as its Privacy Policy describes.

11. Warranties and Disclaimers

11.1 Mutual

Each party represents that it is validly existing and has full power and authority to enter into and perform the Agreement.

11.2 Cloud Alter's limited warranty

Cloud Alter warrants that the paid Services will perform materially in accordance with the Documentation during the Term. Customer must notify Cloud Alter of a breach of this warranty within 30 days after it first occurs. Customer's sole and exclusive remedy, and Cloud Alter's entire liability, for a breach of this warranty is for Cloud Alter to use commercially reasonable efforts to correct the non-conformity or, if it cannot do so within 30 days, for either party to terminate the affected Service and for Cloud Alter to refund Customer's Unused Prepayment for it. Remedies for availability are exclusively those in the SLA.

11.3 Customer's warranties

Customer represents, warrants and covenants that: (a) all information it provides, including KYC Information, is accurate and complete; (b) it holds and will maintain every licence, registration, right, notice and consent its services, Customer Traffic and Customer Data require; (c) Customer Traffic and Customer's use of the Services comply with the Agreement and Applicable Law; and (d) neither Customer nor any of its owners, directors, officers, customers or resellers is a Sanctioned Person.

11.4 Disclaimer

EXCEPT AS EXPRESSLY STATED IN SECTION 11.2 AND THE SLA, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, CLIENT SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS" AND "AS AVAILABLE". CLOUD ALTER DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND THOSE ARISING UNDER SALE OF GOODS LEGISLATION. CLOUD ALTER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, WILL ACHIEVE ANY BANDWIDTH SAVINGS OR OTHER RESULT, WILL PREVENT FRAUD OR SIM-CARD BLOCKING, OR THAT CUSTOMER TRAFFIC WILL BE COMPLETED OR DELIVERED.

12. Limitation of Liability

12.1 Excluded damages

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NONE OF THE CLOUD ALTER PARTIES (AS DEFINED IN SECTION 13.1) WILL BE LIABLE TO CUSTOMER FOR ANY: (a) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES; (b) LOSS OF PROFITS, REVENUE, TRAFFIC, BUSINESS, CONTRACTS, GOODWILL OR ANTICIPATED SAVINGS; (c) LOSS OR CORRUPTION OF DATA, EXCEPT THE COST OF RESTORING DATA FROM CLOUD ALTER'S AVAILABLE BACKUPS; (d) COST OF SUBSTITUTE SERVICES; (e) CHARGES OF CUSTOMER-SELECTED PROVIDERS, LOSSES FROM TOLL FRAUD OR ARTIFICIALLY INFLATED TRAFFIC, OR BLOCKED SIM CARDS OR EQUIPMENT; OR (f) FINES, PENALTIES, OR CLAIMS BY END USERS OR REGULATORS AGAINST CUSTOMER — IN EACH CASE HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE) AND STATUTE, EVEN IF ADVISED OF THEIR POSSIBILITY.

12.2 Cap

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF THE CLOUD ALTER PARTIES ARISING OUT OF OR RELATING TO THE AGREEMENT AND THE SERVICES WILL NOT EXCEED THE GREATER OF (A) USD $500 AND (B) THE PLATFORM FEES CUSTOMER PAID, OR THAT WERE DEDUCTED FROM ITS PREPAID BALANCE, FOR THE SERVICE GIVING RISE TO THE LIABILITY IN THE 12 MONTHS IMMEDIATELY BEFORE THE FIRST EVENT GIVING RISE TO LIABILITY, LESS ANY SERVICE CREDITS ISSUED IN THAT PERIOD. For free Services, trials and beta features, the cap is USD $100. Refunds of prepaid amounts that the Agreement requires do not count towards the cap. The cap applies to all claims together, not to each claim.

12.3 Exceptions

Sections 12.1 and 12.2 do not limit: (a) Customer's obligation to pay Fees, Taxes and pass-through charges; (b) Customer's indemnification obligations; (c) Customer's liability for breach of Section 4 or 5 or the AUP, or for infringing or misappropriating Cloud Alter's intellectual property; or (d) either party's liability that cannot be limited or excluded under Applicable Law, including, where applicable, liability for intentional or gross fault.

12.4 Allocation of risk

The Fees reflect the allocation of risk in this Section 12, which is an essential basis of the bargain and applies even if a limited remedy fails of its essential purpose.

12.5 Time limit for claims

A claim arising out of or relating to the Agreement, other than a claim for unpaid Fees, a claim by Customer for a refund the Agreement requires, or a claim under Section 13.1, must be commenced within 1 year after the day on which it was discovered, as determined under section 5 of Ontario's Limitations Act, 2002. Time stops running from the day a notice under Section 18.2 is given until 30 days after it. The Agreement is a business agreement, and under subsection 22(5) of that Act this period replaces the basic limitation period. This Section does not apply where the law of Québec governs prescription.

13. Indemnification

13.1 By Customer

Customer will defend, indemnify and hold harmless Cloud Alter, its Affiliates, and their directors, officers, employees, agents, licensors and suppliers (the "Cloud Alter Parties") from and against every claim, demand, investigation and proceeding by a third party (including End Users, Customer-Selected Providers, carriers, payment processors and regulators), and all resulting losses, damages, fines, penalties, settlements, costs and expenses, including reasonable legal fees, arising out of or relating to: (a) Customer Data or Customer Traffic; (b) use of the Services by Customer, its Authorized Users or End Users; (c) Customer's actual or alleged breach of Section 4 or 5, the AUP, the DPA or Applicable Law, including telemarketing, anti-spam, privacy, recording and telecommunications laws; (d) Customer's services to its End Users, including any lack of emergency calling; or (e) any dispute between Customer and an End User, reseller or Customer-Selected Provider. Customer has no obligation under this Section 13.1 to the extent a claim is caused by Cloud Alter's gross negligence, wilful misconduct, or breach of Section 10.2 or the DPA.

13.2 By Cloud Alter

Cloud Alter will defend Customer against any third-party claim alleging that the Services, as provided by Cloud Alter and used in accordance with the Agreement, infringe a Canadian or U.S. patent, copyright or trademark or misappropriate a trade secret. Cloud Alter will pay the damages and costs finally awarded against Customer, or agreed in a settlement Cloud Alter approves. Cloud Alter has no obligation for claims arising from: (a) Customer Data, Customer Traffic or Customer-Selected Providers; (b) modifications not made by Cloud Alter; (c) combination with products, equipment, data or processes not supplied by Cloud Alter; (d) use not in accordance with the Agreement or the Documentation; (e) continued use after Cloud Alter provides a non-infringing alternative or update; (f) third-party or open-source components; or (g) free, trial or beta Services. If the Services become, or in Cloud Alter's opinion are likely to become, the subject of a claim, Cloud Alter may at its option obtain the right for Customer to keep using them, modify them to be non-infringing without material loss of functionality, or terminate the affected Service and refund Customer's Unused Prepayment for it. This Section 13.2 is subject to Section 12 and states Cloud Alter's entire liability, and Customer's exclusive remedy, for infringement claims.

13.3 Procedure

The indemnified party will: (a) give the indemnifying party prompt written notice of the claim (a delay relieves the indemnifying party only to the extent it is prejudiced); (b) give the indemnifying party sole control of the defence and settlement, except that a settlement requiring the indemnified party to admit fault or pay money needs its consent, which may not be unreasonably withheld; and (c) cooperate reasonably at the indemnifying party's cost. The indemnified party may participate through its own counsel at its own cost. Cloud Alter may, at Customer's cost, take control of the defence of any claim under Section 13.1 that involves a regulator, a carrier, or Cloud Alter's licences, infrastructure or reputation.

14. Term, Renewal and Termination

14.1 Term

The Agreement starts when Customer accepts it and continues until every Order has expired or been terminated (the "Term").

14.2 Billing periods and renewal

Unless an Order says otherwise, subscription, port and instance plans run month to month and renew automatically for successive periods of the same length. Customer may cancel a plan at any time through the portal or by ticket; cancellation takes effect at the end of the current billing period, and Fees already paid are not refunded. For an Order with a term longer than one month, either party may prevent renewal by notice at least 30 days before the term ends. Hourly Services end when Customer stops them or its balance is exhausted.

14.3 Termination for convenience by Cloud Alter

Cloud Alter may terminate the Agreement or any Service for convenience on 30 days' notice, and will then refund Customer's Unused Prepayment for the terminated Services.

14.4 Termination for cause

Either party may terminate the Agreement or an Order by notice if the other party materially breaches it and does not cure the breach within 15 days after notice (10 days for non-payment). Cloud Alter may also terminate the Agreement or any Service immediately by notice if: (a) Customer breaches the AUP or Section 4 or 5 seriously or repeatedly; (b) Cloud Alter reasonably suspects fraud or unlawful activity; (c) a regulator, court, carrier or payment processor requires it, or continuing would expose Cloud Alter to legal or regulatory liability; (d) Customer becomes a Sanctioned Person or, to the extent insolvency law permits, insolvent; or (e) the Services to Customer have been suspended for more than 30 days.

14.5 Effect of termination

On termination:

1. Customer's rights to use the Services and Client Software end, and Customer must stop using and delete the Client Software.
2. All Fees accrued up to termination become immediately due and, if Cloud Alter terminates for Customer's breach, so do all Fees for the rest of any committed term, less the costs Cloud Alter avoids because the Services end.
3. If Cloud Alter terminates for Customer's breach, it may apply Customer's Unused Prepayment to amounts Customer owes and to Cloud Alter's documented losses, carrier penalties and costs arising from the breach. It may hold the Unused Prepayment for up to 180 days, or longer only while a claim, chargeback or authority's direction concerning it is pending, and will then refund any remainder.
4. Customer may export Customer Data for 30 days after termination. Cloud Alter may require undisputed Fees to be paid before providing an export, except that it will always return Customer Personal Data as the DPA requires. After that period Cloud Alter has no obligation to keep Customer Data and will delete it as the DPA describes.
5. Each party will return or destroy the other's Confidential Information, subject to the DPA and legal retention requirements.
6. If Customer terminates the Agreement under Section 14.4 because Cloud Alter materially breached it, Cloud Alter will refund Customer's remaining prepaid balance, less any Fees Customer owes and excluding service credits and promotional credits, to the original payment method within 30 days.

14.6 Survival

Sections 1, 2.2, 3.5, 4.2, 4.3, 4.5 to 4.7, 6 (for amounts owed), 8, 9, 10.3, 11.3, 11.4, 12, 13, 14.5, 14.6 and 15 to 19, and every obligation to pay a refund, survive termination.

15. Sanctions, Export Control and Anti-Corruption

Customer represents and warrants that neither it nor any of its owners, directors, officers, Authorized Users, customers or resellers is (a) listed under, or owned or controlled by a person listed under, sanctions administered by Canada (including under the Special Economic Measures Act and the Justice for Victims of Corrupt Foreign Officials Act), the United States (including by OFAC and the Bureau of Industry and Security), the United Nations, the United Kingdom or the European Union; or (b) located in, or organized under the laws of, a country or region subject to comprehensive sanctions (each, a "Sanctioned Person"). Customer will not use, export or re-export the Services or Client Software, or route Customer Traffic, in breach of sanctions or export-control laws. Each party will comply with applicable anti-corruption laws, including Canada's Corruption of Foreign Public Officials Act and the U.S. Foreign Corrupt Practices Act.

Nothing in the Agreement requires either party to act, or refrain from acting, in a way that would contravene Canada's Foreign Extraterritorial Measures Act or any order made under it.

16. Force Majeure

Neither party is liable for a failure or delay in performance, other than payment obligations, caused by events beyond its reasonable control. These include natural disasters, epidemics, war, terrorism, civil unrest, government action, sanctions, labour disputes (other than those of the affected party's own employees), failures or outages of the public internet, telecommunications networks, carriers or upstream providers, power failures, widespread failures of third-party data-centre or cloud-infrastructure providers, and cyber-attacks, including denial-of-service attacks, that commercially reasonable security measures could not have prevented. The affected party will notify the other and use reasonable efforts to mitigate. If a force majeure event prevents Cloud Alter from providing a Service for more than 30 consecutive days, either party may terminate the affected Service by notice, and Cloud Alter will refund Customer's Unused Prepayment for it.

17. Notices

Cloud Alter may give notices to Customer by email to the Account's administrative or billing contact, in the portal, or by courier to Customer's address on file; email and portal notices are effective when sent. Customer must give legal notices to Cloud Alter by email to legal@cloudalter.com, with a copy by courier or registered mail to Cloud Alter Inc., 20 Teesdale Place, Toronto, Ontario M1L 1L1, Canada, Attention: Legal; they are effective on receipt. Customer may give a notice ending the Agreement or a Service by support ticket or by email to legal@cloudalter.com alone, with no courier copy. Otherwise, support tickets and Telegram, WhatsApp or social-media messages are not notices. Customer must keep its contact details current.

18. Governing Law and Dispute Resolution

18.1 Governing law

The Agreement, and any dispute arising out of or relating to it or the Services, is governed by the laws of the Province of Ontario and the federal laws of Canada applicable there, without regard to conflict-of-laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

18.2 Informal resolution

Before starting arbitration, a party must give the other written notice describing the dispute, and the parties' senior representatives will try in good faith to resolve it for 30 days.

18.3 Binding arbitration

Any dispute, claim or controversy arising out of or relating to the Agreement or the Services, including its formation, interpretation, breach, termination or validity and the arbitrability of any dispute, that is not resolved under Section 18.2 will be finally resolved by confidential arbitration administered by the ADR Institute of Canada, Inc. under its Arbitration Rules then in effect. There will be one arbitrator. The seat of arbitration is Toronto, Ontario, and the language is English. Hearings may be held by videoconference, and claims of less than USD $50,000 will be decided on written submissions unless the arbitrator decides a hearing is needed. For a claim by Customer of less than USD $25,000, Cloud Alter will pay the administrative and arbitrator fees above USD $250 unless the arbitrator finds the claim frivolous, and any hearing will be by videoconference. Judgment on the award may be entered in any court of competent jurisdiction. For a Customer outside Canada, the arbitration is an international commercial arbitration and the award is enforceable under the New York Convention. In any U.S. court, the enforceability of this Section 18 is governed by the U.S. Federal Arbitration Act, including its Chapter 2.

18.4 Exceptions

Either party may (a) bring an individual claim within the monetary jurisdiction of the Small Claims Court in Toronto, Ontario; and (b) seek urgent injunctive or other interim relief from any court of competent jurisdiction to protect its intellectual property, Confidential Information, systems or reputation. Cloud Alter may also sue to collect unpaid Fees in any court of competent jurisdiction, including where Customer is located.

18.5 Individual claims only

To the extent Applicable Law permits, each party may bring claims against the other only in its individual capacity, and not as a plaintiff or class member in any purported class, collective, consolidated or representative proceeding. The arbitrator may not consolidate the claims of more than one customer.

18.6 Courts

If Section 18.3 is found unenforceable for a dispute, that dispute will be heard exclusively by the courts of Ontario sitting in Toronto, and each party submits to their jurisdiction. To the extent permitted by law, each party waives any right to a jury trial.

18.7 Language

The parties have required that the Agreement and all related documents be drawn up in English. Les parties ont exigé que le présent contrat et tous les documents s'y rattachant soient rédigés en anglais.

19. General

19.1 Entire agreement

The Agreement is the entire agreement between the parties on its subject matter and supersedes all prior agreements, proposals and representations about it, including terms previously published on cloudfonica.com, textenvoy.com or optimasaver.com, which these Terms replace as Section 2.8 provides.

19.2 Assignment

Customer may not assign or transfer the Agreement, by operation of law or otherwise, without Cloud Alter's prior written consent. Cloud Alter may assign the Agreement without consent to an Affiliate or to a successor in a merger, reorganization or sale of all or substantially all of its relevant assets. Any other assignment is void.

19.3 Subcontracting

Cloud Alter may use subcontractors and Sub-processors and remains responsible for their performance of its obligations.

19.4 Relationship

The parties are independent contractors. The Agreement creates no partnership, joint venture, agency, fiduciary or employment relationship.

19.5 Third-party beneficiaries

The Cloud Alter Parties may rely on and enforce Sections 11.4, 12.1, 12.2 and 13.1, and Cloud Alter holds the benefit of those Sections in trust for them. The Agreement has no other third-party beneficiaries.

19.6 Waiver and severability

A waiver is effective only if in writing. If any provision is held invalid or unenforceable, it will be enforced to the maximum extent permitted, and the rest of the Agreement remains in effect.

19.7 Interpretation

Headings are for convenience only. "Including" means "including without limitation". Except where the law of Québec applies, no rule of construction against the drafting party applies.

19.8 Electronic communications

Customer consents to receiving notices, invoices and agreements electronically.

19.9 Contact

Cloud Alter Inc., 20 Teesdale Place, Toronto, Ontario M1L 1L1, Canada · legal@cloudalter.com · +1 647-558-8722.

Schedule A — Product-Specific Terms

A.1 Cloudfonica and Optima Saver (VoIP bandwidth optimization)

1. Service. Cloudfonica and Optima Saver tunnel, compress and route Customer's VoIP traffic between Customer's equipment running Client Software and Cloud Alter's servers, and provide portals for account, billing, settings and CDR viewing. Fees are charged per port, per hour or per month as the Order states.
2. Compatibility. Lists of supported routers, gateways and operating systems are provided for convenience only. Cloud Alter does not warrant compatibility with any third-party device or firmware version. Installing Client Software on third-party hardware may void that hardware's warranty, and Customer does so at its own risk.
3. SIM and gateway features. Features that manage SIM-card behaviour, gateway traffic patterns or how calls are presented, including "SIM Saver", "SIM-Less Termination", caller-ID rotation, call pacing and tunnel obfuscation, are made available for a jurisdiction only after Customer certifies in the portal the legal basis for its use of the SIM cards, gateways and routes there and, on request, provides the licence or written carrier authorization it relies on. These features are not available in Bangladesh or in any country or territory subject to Canadian sanctions. Customer must not use them to evade detection of unlawful traffic by regulators, carriers or law enforcement. Caller-ID pools may contain only numbers that Customer or its End User is authorized to use, as AUP 3.4 requires. Cloud Alter may disable them for any Customer or jurisdiction at any time, and will do so on receiving credible information that their use is unlawful or breaches a carrier's terms.
4. CDRs. CDRs shown in the portal are for operational reference. Customer's settlement with its carriers is governed by those carriers' records and contracts.

A.2 TextEnvoy (A2P SMS switching)

The SMS Service Schedule and the SMS Annex to the DPA govern TextEnvoy.

A question about this document? Contact us.