TALKETALK TERMS OF SERVICE
These Terms of Service constitute the agreement ("Agreement")
between TalkETalk Inc.. (or, for Customers subscribing to services
in Canada, TalkETalk Canada, Inc.) ("we," "us"
or "TalkETalk") and the user ("you," "user"
or "Customer") of TalkETalk's enhanced Residential communications
services or enhanced Small Business communications services and
any related products or services ("Service"). This Agreement
governs both the Service and any devices, such as an IP phone, Multimedia
Terminal Adapter, Analog Telephone Adapter or any other IP connection
device, ("Device" or "Equipment") used in conjunction
with the Service. By activating the Service, you acknowledge that
you have read and understood, and you agree, to the terms and conditions
of this Agreement, and you represent that you are of legal age to
enter this Agreement and become bound by its terms. If you have
purchased Equipment from any TalkETalk retail dealer, you will be
deemed a "Retail Customer" and will be governed by certain
Retail Customer terms and conditions as set forth herein.
1. SERVICE
1.1 Term
Service is offered on a monthly basis for a term which begins on
the date that TalkETalk 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 without further
action by you unless you give TalkETalk 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 terminate 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 disconnect fee, all of which
immediately become due and payable. Expiration of the term or termination
of Service does not excuse the Customer from paying all unpaid,
accrued charges due in relation to the Agreement.
1.2.1 Use of Service and Device - Prohibition on Resale
If you have subscribed to TalkETalk's services, the Service and
Device are provided to you as a user. This means that you are not
to resell or transfer the service or device to any other person
for any purpose, without express written permission from TalkETalk
in advance. You agree that the TalkETalk Plans do not confer the
right to use the service for auto-dialing, continuous or extensive
call forwarding, telemarketing (including without limitation charitable
or political solicitation or polling), fax broadcasting or fax blasting.
TalkETalk reserves the right to immediately terminate or modify
the Service, if TalkETalk determines, in its sole discretion, that
Customer's Service is being used for any of the aforementioned activities.
1.3 Lawful Use of Service and Device
1.3.1 Prohibited Uses
You agree to use the Service and Device only for lawful purposes.
This means that you agree not to use them for transmitting or receiving
any communication or material of any kind when in TalkETalk's sole
judgment the transmission, receipt or possession of such communication
or material (i) would constitute a criminal offense, give rise to
a civil liability, or otherwise violate any applicable local, state,
national or international law or (ii) encourages conduct that would
constitute a criminal offense, give rise to a civil liability, or
otherwise violate any applicable local, state, national or international
law. TalkETalk reserves the right to terminate your service immediately
and without advance notice if TalkETalk, in its sole discretion,
believes that you have violated the above restrictions, leaving
you responsible for the full month's charges to the end of the current
term, including without limitation unbilled charges, plus a disconnect
fee, all of which immediately become due and payable and may at
TalkETalk’s discretion be immediately charged to your credit
card. You are liable for any and all use of the Service and/or Device
by yourself and by any person making use of the Service or Device
provided to you and agree to indemnify and hold harmless TalkETalk
against any and all liability for any such use. If TalkETalk, in
its sole discretion believes that you have violated the above restrictions,
TalkETalk may forward the objectionable material, as well as your
communications with TalkETalk and your personally identifiable information
to the appropriate authorities for investigation and prosecution
and you hereby consent to such forwarding.
1.3.2 Use of Service and Device by Customers Outside the United
States
While we encourage use of the Service within the United States to
other countries, TalkETalk does not presently offer or support the
Service to customers located in other countries except Canada. If
you remove the Device to a country other than the United States
or Canada and use the Service from there, you do so at your own
sole risk, including the risk that such activity violates local
laws in the country where you do so. You are liable for any and
all such use of the Service and/or Device by yourself or any person
making use of the Service or Device provided to you and agree to
indemnify and hold harmless TalkETalk against any and all liability
for any such use. Should the removal from the United States or Canada
of the Device violate any export control law or regulation, you
will be solely liable for such violation and agree to indemnify
and hold harmless TalkETalk against any and all liability for such
violation. TalkETalk reserves the right to terminate your Service
immediately and without advance notice if it determines that you
are using it outside the United States or Canada.
1.4 Loss of Service Due to Power Failure or Internet Service Outage
or Termination or Suspension or Termination by TalkETalk
You acknowledge and understand that the Service does not function
in the event of power failure. You also acknowledge and understand
that the Service requires a fully functional broadband connection
to the Internet (which is not provided by TalkETalk) and that, accordingly,
in the event of an outage of, or termination of service with or
by, your Internet service provider ("ISP") and/or broadband
provider, the Service will not function, but that you will continue
to be billed for the Service unless and until you or TalkETalk terminate
the Service in accordance with this Agreement. Should there be an
interruption in the power supply or ISP outage, the Service will
not function until power is restored or the ISP outage is cured.
A power failure or disruption may require the Customer to reset
or reconfigure equipment prior to utilizing the Service. Power disruptions
or failures or ISP outages will also prevent dialing to emergency
service numbers including the 911 calling feature. Should TalkETalk
suspend or terminate your Service, the Service will not function
until such time as TalkETalk restores your Service (which may require
payment of all invoices and reconnection fees owed by you or cure
of any breach by you of this Agreement).
1.5 Copyright / Trademark / Unauthorized Usage of Device, Firmware
or Software
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 TalkETalk's website(s) are protected
by trademark, copyright or other intellectual property laws and
international treaty provisions. All websites, corporate names,
service marks, trademarks, trade names, logos and domain names (collectively
"marks") of TalkETalk are and shall remain the exclusive
property of TalkETalk and nothing in this Agreement shall grant
you the right or license to use any of such marks. You acknowledge
that you are not given 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. You expressly agree
that the Device is exclusively for use in connection with the Service
and that TalkETalk will not provide any passwords, codes or other
information or assistance that would enable you to use the Device
for any other purpose. If you decide to use the Service through
an interface device not provided by TalkETalk, which TalkETalk reserves
the right to prohibit in particular cases or generally, you warrant
and represent that you possess all required rights, including software
and/or firmware licenses, to use that interface device with the
Service and you will indemnify and hold harmless TalkETalk 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.
1.6 Tampering with the Device or Service
You agree not to change the electronic serial number or equipment
identifier of the Device, or to perform a factory reset of the Device,
without express permission from TalkETalk in each instance which
TalkETalk may deny in its sole discretion. TalkETalk reserves the
right to terminate your Service should you tamper with the Device,
leaving you responsible for the full month's charges to the end
of the current term, including without limitation unbilled charges,
plus a disconnect fee, all of which immediately become due and payable.
You agree not to hack or disrupt the service or to make any use
of the Service that is inconsistent with its intended purpose or
to attempt to do so.
1.7 Theft of Service
You agree to notify TalkETalk immediately, in writing or by calling
the TalkETalk customer support line, if the Device is stolen or
if you become aware at any time that your Service is being stolen
or fraudulently used. When you call or write, you must provide your
account number and a detailed description of the circumstances of
the Device theft or fraudulent use of Service. Failure to do so
in a timely manner may result in the termination of your Service
and additional charges to you. Until such time as TalkETalk receives
notice of the theft or fraudulent use, you will be liable for all
use of the Service using a Device stolen from you and any and all
stolen Service or fraudulent use of the Service.
1.8 Return of Device
The Device may be returned to TalkETalk within fourteen (14) days
of the termination of Service to receive a credit for the $39.99
disconnect fee ($49.99 CAD) (refer to section 4.6 of this document
regarding termination fees), provided: (i) you have retained, and
return along with the Device, proof of purchase and original packaging;
(ii) contents are undamaged and in original condition, reasonable
wear and tear excluded; (iii) all parts, accessories, documentation
and packaging materials are returned; and (iv) equipment is returned
with a valid return authorization number obtained from TalkETalk’s
customer care department. You are responsible for the cost and risk
of return shipping of equipment. If you receive cartons and/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 TalkETalk's customer care department immediately. To
obtain a return authorization number, you must contact billing@TalkETalk.com
or 1-877-TALK-504.
1.9 Number Transfer on Service Termination
Upon termination of the Service, TalkETalk may, at its sole discretion,
release a telephone number that was ported in from a previous service
provider to TalkETalk by you and used in connection with your Service
provisioned by TalkETalk to your new service provider, if such new
service provider is able to accept such number, and provided that
(i) your account has been terminated; (ii) your TalkETalk account
is completely current including payment for all charges and disconnect
fees; and (iii) you request the transfer upon terminating your account.
1.10 Service Distinctions
You acknowledge and understand that the Service is not a telephone
service. Important distinctions (some, but not necessarily all,
of which are described in this Agreement) exist between telephone
service and the enhanced Service offering provided by TalkETalk.
The Service is subject to different regulatory treatment than telephone
service. This treatment may limit or otherwise affect your rights
of redress before Federal, State or Provincial telecommunications
regulatory agencies.
1.11 Ownership and Risk of Loss
You shall be deemed the owner of 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
by you pursuant to Section 1.8 and has been received by TalkETalk.
1.12 No 0+ Calling; May Not Support x11 Calling
TalkETalk’s Service does not support 0+ calling (including
without limitation collect, third party billing or calling card
calling). TalkETalk’s Service may not support 311, 511 and/or
other x11 (other than 911 and 411, which are provided for elsewhere
in this Agreement) services in one or more (or all) service areas.
2. EMERGENCY SERVICES- 911 DIALING
2.1 Use of Enhanced 911 (E911) Dialing Service
You acknowledge and understand that the use of E911 emergency services
may be subject to different circumstance and set up then traditional
911 service. TalkETalk does offer a limited 911-type service available
only on TalkETalk Devices as described herein, but you acknowledge
and understand that 911 dialing may be affected if the device is
usedin another location from your main residence. The service is
designed to determine your location and based not only on your listed
location information in our service record but also as best as possible
to determine if the device is in a “offsite” location
based in the IP address sent with the request for emergency service.
You understand and acknowledge that TalkETalk can not be held liable
in the event that we are unable to contact the local emergency service
provider due to faulty or improper information. You also acknowledge
that you may be asked at some point to separately take affirmative
steps to activate such 911-type dialing capabilities. You further
acknowledge that such 911-type dialing may differ from traditional
911 service. TalkETalk 911 dialing cannot be used in conjunction
with a TalkETalk Soft Phone application and is only available on
TalkETalk-certified Devices or Equipment. You agree to inform any
household residents, guests and other third persons who may be present
at the physical location where you utilize the Service as to the
important differences and limitations that may be present in TalkETalk
911 dialing service as compared with traditional 911 or E911 dialing
that are set forth in this Agreement.
2.2 Description of 911-Type Dialing Capabilities - Activation May
Be Required
TalkETalk does offer a 911-type dialing service in the U.S. (but
may not offer such service in Canada) that may differ in a number
of important ways from traditional 911 service. You acknowledge
and understand that 911-type dialing may at some point require an
action on your part. When you dial 911, your call is routed from
the TalkETalk network to the Public Safety Answering Point (PSAP)
or local emergency service personnel designated for the address
that you listed at the time of activation or the address best possibly
determined by other means. You acknowledge and understand that when
you dial 911 from your TalkETalk equipment it is intended that you
will be routed to the PSAP or local emergency service provider,
Unless otherwise specified your call will be routed to the 911 dispatcher(s)
who are specifically designated to receive incoming 911 calls using
traditional 911 dialing. TalkETalk relies on third parties for the
forwarding of information underlying such routing, and accordingly
TalkETalk and its third party provider(s) disclaim any and all liability
or responsibility in the event such information or routing is incorrect.
As described herein, this 911-type dialing may differ from traditional
911 or E911 dialing. Neither TalkETalk 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 911 dialing unless it is proven that the act or omission
proximately causing the claim, damage, or loss constitutes gross
negligence, recklessness, or intentional misconduct on the part
of TalkETalk. You agree to indemnify and hold harmless TalkETalk
and its third party provider from any claim or action arising out
of misroutes of 911 calls, including but not limited to your failure
to follow correct activation procedures for 911 calling or your
provision to TalkETalk of incorrect information in connection therewith.
2.3 Service Outage
2.3.1 Power Failure or Disruption
You acknowledge and understand that 911 dialing does not function
in the event of a power failure or disruption. Should there be an
interruption in the power supply, the Service and 911 dialing will
not function until power is restored. A power failure or disruption
may require the Customer to reset or reconfigure equipment prior
to utilizing the Service or 911 dialing.
2.3.2 Broadband Service / ISP Outage or Termination / Suspension
or Termination by TalkETalk
You acknowledge and understand that service outages or suspension
or termination of service by your broadband provider and/or ISP
or by TalkETalk will prevent ALL Service including 911 dialing.
2.3.3 Service Outage Due to Suspension of Your Account
You acknowledge and understand that service outages due to suspension
of your account as a result of billing issues will prevent ALL Service,
including 911dialing.
2.3.4 Other Service Outages
You acknowledge and understand that if there is a service outage
for ANY reason, such outage will prevent ALL Service, including
911 dialing. Such outages may occur for a variety of reasons, including,
but not limited to those reasons described elsewhere in this Agreement.
2.3.5 Limitation of Liability and Indemnification
You acknowledge and understand that TalkETalk's liability is limited
for any Service outage and/or inability to dial 911 from your line
or to access emergency service personnel, as set forth in this document.
You agree to defend, indemnify, and hold harmless TalkETalk, its
officers, directors, employees, affiliates and agents and any other
service provider who furnishes services to Customer in connection
with this Agreement or the Service, from any and all claims, losses,
damages, fines, penalties, costs and expenses (including, without
limitation, reasonable attorneys fees) by, or on behalf of, Customer
or any third party or user of Customer's Service relating to the
absence, failure or outage of the Service, including 911 dialing
and/or inability of Customer or any third person or party or user
of Customer's Service to be able to dial 911 or to access emergency
service personnel.
2.4 911 Dialing May Requires Actions
You acknowledge and understand that 911 dialing may require an action
on your part now or in the future.
2.5 Failure to Designate the Correct Physical Address for your account.
Failure to provide the current and correct physical address and
location of your TalkETalk equipment may result in any 911 communication
you may make being routed to the incorrect local emergency service
provider. This must be the actual physical street address where
you are located, not a post office box, mail drop or similar address.
2.6 May Requires Re-Activation if You Change Your Number or Add
or Port New Numbers
You acknowledge and understand that 911 dialing may not function
if you change your phone number or (for such newly added or ported
numbers) if you add or port new numbers to your account, unless
and until you have successfully activated the 911 dialing feature
for your changed, newly added or newly ported number, and until
such later date that such activation has been confirmed to you through
a confirming email. Although you may have activated 911 dialing
with your former TalkETalk phone number.
2.7 Requires Re-Activation if You Move or Change Location
You acknowledge and understand that 911 dialing is designed to best
determine your location if you move or otherwise change the physical
location of your TalkETalk Device to a different street address,
unless and until you have successfully made any required changes
to your account information, and until such later date that such
activation has been confirmed to you through a confirming email.
911 dialing may need to be re-activated although you may have activated
911 dialing using your former address, you may separately activate
911 dialing for any new physical address. Failure to provide the
current and correct physical address and location of your TalkETalk
equipment may result in any 911 dialing you may make being routed
to the incorrect local emergency service provider
2.8 Possibility of Network Congestion and/or Reduced Speed for
Routing or Answering 911
Due to the technical constraints on the manner in which it is possible
to provide the 911 dialing feature for TalkETalk Service at this
time, you acknowledge and understand that there is a greater possibility
of network congestion and/or reduced speed in the routing of a 911
communication made utilizing your TalkETalk equipment as compared
to traditional 911 dialing over traditional public telephone networks.
You acknowledge and understand that 911 dialing from your TalkETalk
equipment will be routed to the 911 dispatcher(s) who are specifically
designated to receive incoming 911 calls. You acknowledge and accept
that TalkETalk relies on third parties for the forwarding of information
underlying such routing, and accordingly TalkETalk and its third
party provider(s) disclaim any and all liability or responsibility
in the event such information or routing is incorrect. TalkETalk
or its officers or employees, may not 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 911 dialing unless
it is proven that the act or omission proximately causing the claim,
damage, or loss constitutes gross negligence, recklessness, or intentional
misconduct on the part of TalkETalk.
2.9 Automated Number Identification
At this time in the technical development of TalkETalk 911 dialing,
it may or may not be possible for the Public Safety Answering Point
(PSAP) and the local emergency personnel to identify your phone
number when you dial 911. TalkETalk's system is configured in most
instances to send the automated number identification information;
however, one or more telephone companies, not TalkETalk, route the
traffic to the PSAP and the PSAP itself must be able to receive
the information and pass it along properly, and PSAPs are not yet
always technically capable of doing so. You acknowledge and understand
that PSAP and emergency personnel may or may not be able to identify
your phone number in order to call you back if the call is unable
to be completed, is dropped or disconnected, or if you are unable
to speak to tell them your phone number and/or if the Service is
not operational for any reason, including without limitation those
listed elsewhere in this Agreement.
2.10 Automated Location Identification
At this time in the technical development of TalkETalk 911 Dialing,
the transmission of your identification and personal address to
the Public Safety Answering Point (PSAP) and local emergency personnel
for your area when you dial 911 will be handle automatically except
in case as identified elsewhere in this document.. You acknowledge
and understand that in most cases if you can not state the nature
of your emergency promptly and clearly, including your location,
to the PSAP and emergency personnel your information will be provided
on your behalf. You acknowledge and understand that in some cases
PSAP and emergency personnel will not be able to find your location
if the call is unable to be completed, is dropped or disconnected,
and/or if the Service is not operational for any reason, including
without limitation those listed elsewhere in this Agreement.
3. CHANGES TO THIS AGREEMENT
TalkETalk may change the terms and conditions of this Agreement
from time to time. Notices will be considered given and effective
on the date posted on to the "Service Announcements" section
of TalkETalk’s website (currently located at http://www.talketalk.com/legal-notices.shtml).
Such changes will become binding on Customer, on the date posted
to the TalkETalk website and no further notice by TalkETalk is required.
This Agreement as posted 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..
4. CHARGES / PAYMENTS / DEFAULT / TAXES / TERMINATION
4.1 Billing
You may pay with any valid credit card number (Visa, MasterCard,
Discover, American Express or any other issuer then-accepted by
TalkETalk) or a check when the Service is activated. It is recommended
you keep a credit card on file to avoid service interruption. TalkETalk
reserves the right to stop accepting credit cards from one or more
issuers. If the card expires, you close your account, your billing
address changes, or the card is cancelled and replaced owing to
loss or theft, you must advise TalkETalk 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 TalkETalk decides to bill in arrears)
to your credit card, including but not limited to: activation fees,
monthly Service fees, international usage charges, advanced feature
charges, equipment purchases, disconnect fees and shipping and handling
charges. Should you choose to pay by check, checks must be received
by the 25th of the month to avoid service interruption. TalkETalk
reserves the right to bill at more frequent intervals if the amount
due 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 TalkETalk’s website.
4.2 Billing Disputes
You must notify TalkETalk in writing within 7 days after receiving
your credit card statement if you dispute any TalkETalk charges
on that statement or such dispute will be deemed waived. Billing
disputes should be notified to the following address:
Customer Care Billing Department
TalkETalk Inc.
10200 SW Allan Blvd. Ste D
Beaverton, OR 97005
or
billing@TalkETalk.com
4.3 Payment
TalkETalk accepts payments only by means as set forth in Section
4.1. Your initial use of the Service authorizes TalkETalk to charge
the credit card account number on file with TalkETalk, including
any changed information given TalkETalk if the card expires or is
replaced, or if you substitute a different card, for TalkETalk charges
as set forth in Section 4.1. This authorization will remain valid
until 30 days after TalkETalk receives your written notice terminating
TalkETalk's authority to charge your credit card, whereupon TalkETalk
will charge you the disconnect fee and any other outstanding charges
and terminate the Service. TalkETalk may terminate your Service
at any time in its sole discretion, if any payment isn’t received
by TalkETalk in a timely manner. In the event of a declined, reversed,
or expired credit card and you have not provided TalkETalk with
a valid replacement credit card or in case of any other non-payment
of account charges. Termination of Service for declined or expired
card, reversed charges or non-payment leaves you FULLY LIABLE to
TalkETalk for ALL CHARGES ACCRUED BEFORE TERMINATION and for all
costs incurred by TalkETalk in collecting such amounts, such as
(but not limited to) collection costs and attorney's fees.
4.4 Termination/Discontinuance of Service
TalkETalk reserves the right to suspend or discontinue providing
the Service generally, or to terminate your Service, at any time
in its sole discretion. If TalkETalk discontinues providing the
Service generally, or terminates your Service in its discretion
without a stated reason, you will only be responsible for charges
accrued through the date of termination, including a pro-rated portion
of the final month's charges. If your Service is terminated for
any stated reason, including without limitation violation of this
Agreement, or because of any improper use of the Service or Device
(such as, but not limited to, your attempts to hack, disrupt, or
misuse the Service or your acts or omissions that violate any acceptable
use policy of TalkETalk or of a third party provider to which TalkETalk
is subject), you will be responsible for the full month's charges
to the end of the current term, including without limitation unbilled
charges, plus the disconnect fee set forth in Section 4.6, all of
which immediately become due and payable.
4.5 Taxes
You are responsible for, and shall pay, any applicable federal,
state, provincial, municipal, local or other governmental sales,
use, excise, value-added, personal property, public utility 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 shall provide TalkETalk with an original certificate
that satisfies applicable legal requirement attesting to tax-exempt
status. Tax exemption will only apply from and after the date TalkETalk
receives such certificate.
4.6 Disconnect Fee
Customer will be charged a disconnect fee of $39.99 ($49.99 CAD)
per voice line upon termination of Service for any reason or for
convenience by Customer. The disconnect fee becomes due and payable
immediately upon termination and will be billed directly to Customer's
credit card. If Customer has multiple lines, Customer will be charged
a disconnect fee of $39.99 ($49.99 CAD) per line for each line disconnected.
To receive a credit for the disconnect fee, Customer must return
the Device(s) undamaged and in original condition within fourteen
(14) days of termination as set forth in Section 1.8. TalkETalk
will not credit Customer if the Device(s) is damaged or not in its
original condition as received by the Customer or if Customer has
otherwise failed to comply fully with the requirements of Section
1.8. In the event Customer disconnects multiple lines, TalkETalk
will issue Customer a credit for all disconnect fees upon receipt
of all Devices (including without limitation Multimedia Terminal
Adapters) in accordance with this Section and Section 1.8. Disconnect
Fee does not apply to “Small Business Unlimited” Customers.
4.7 Money Back Guarantee; Limitations and Conditions
TalkETalk offers a 14-day Money Back Guarantee (30 or 90 days for
Retail Customers; see offer details in advertising or online content
of the retailer from whom Retail Customer purchased Equipment for
the applicable time period) (such 14, 30 or 90 day period, the "Warranty
Period"), applicable only to User’s first-ordered line
per account, not to additional or secondary lines. Under terms of
this Money Back Guarantee, TalkETalk refunds the activation fee,
first month of service, and shipping charges and waives the disconnect
fee, provided the terms described below are satisfied. Federal excise
taxes and any other applicable taxes cannot be refunded. TalkETalk
reserves the right to terminate or revoke this Money Back Guarantee
at any time, without prior notice.
In order to be entitled to this Money Back Guarantee, User (i) must
cancel service within the number of days in the Warranty Period
after the account activation; (ii) must return all Devices within
14 days after cancellation pursuant to Sections 1.8 and 4.6; and
(iii) must not have exceeded 250 minutes of usage (500 minutes for
Retail Customers). User remains responsible for any charges for
domestic usage in excess of the amount included within the Plan
to which User subscribes, international usage (including the charges
described in Section 4.9), payphone calls to TalkETalk toll free
numbers and directory assistance. THIS MONEY BACK GUARANTEE DOES
NOT APPLY TO ACCOUNTS EXCEEDING 250 MINUTES (500 MINUTES FOR RETAIL
CUSTOMERS) OF USAGE AND SUCH ACCOUNTS ARE NOT ELIGIBLE FOR REFUND
OF ANY OF THE CHARGES DESCRIBED HEREIN.
In addition to the requirements set forth in Section 1.8, all returned
Devices must be in the original packaging with the UPC or bar code
intact. All components, manuals and registration card(s) must be
included. Equipment must be returned with a valid return authorization
number obtained from TalkETalk customer care. User is responsible
for the cost and risk of return shipping of equipment. THE MONEY
BACK GUARANTEE WILL NOT BE HONORED IF USER FAILS TO MEET ALL SUCH
REQUIREMENTS.
To obtain a return authorization number, User must contact billing@TalkETalk.com.
4.8 Payphone Charges
If you make use of TalkETalk’s Toll Free Plus feature any
toll free feature that may be offered by TalkETalk in the future,
you acknowledge and agree that TalkETalk is entitled to recover
from you any charges imposed on TalkETalk by payphone owners or
operators, either directly or indirectly through TalkETalk’s
suppliers in connection with toll free calls made to your number,
or any charges imposed on TalkETalk by its suppliers to recover
such costs. TalkETalk may recover these amounts by means of a per-call
charge, rounded up to the next cent, or in such other fashion as
TalkETalk deems appropriate for the recovery of these costs.
4.9 Charges for Directory Calls
TalkETalk will charge 99 cents for each call made to TalkETalk directory
assistance.
5. WARRANTY and LIABILITY LIMITATIONS / INDEMNIFICATION
5.1 Limitation of Liability
TalkETalk shall not be liable for any delay or failure to provide
the Service, including 911 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:
1.) act or omission of an underlying carrier, service provider,
vendor or other third party;
2.) equipment, network or facility failure;
3.) equipment, network or facility upgrade or modification;
4.) force majeure events such as (but not limited to) acts of god;
strikes; fire; war; riot; government actions;
5.) equipment, network or facility shortage;
6.) equipment or facility relocation;
7.) service, equipment, network or facility failure caused by the
loss of power to Customer;
8) outage of Customer’s ISP or broadband service provider;
9) act or omission of Customer or any person using the Service or
Device provided to Customer; or
10) any other cause that is beyond TalkETalk's 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 911 dialing) to be connected or completed,
or degradation of voice quality.
TalkETalk's aggregate liability for (i) any failure or mistake;
(ii) any claim with respect to TalkETalk’s performance or
nonperformance hereunder or (iii) any TalkETalk act or omission
in connection with the subject matter hereof shall in no event exceed
Service charges with respect to the affected time period.
5.2 Disclaimer of Damages
IN NO EVENT SHALL TALKETALK, ITS OFFICERS, DIRECTORS, EMPLOYEES,
AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES
SERVICES TO CUSTOMER 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 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 BE ABLE TO DIAL 911 OR
TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE SERVICE. THE LIMITATIONS
SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT,
BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER
THEORIES OF LIABILITY AND APPLY WHETHER OR NOT TALKETALK WAS INFORMED
OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
5.3 Indemnification
Customer agrees to defend, indemnify, and hold harmless TalkETalk,
its officers, directors, employees, affiliates and agents and any
other service provider who furnishes services to Customer in connection
with this Agreement or the Service, from any and all claims, losses,
damages, fines, penalties, costs and expenses (including, without
limitation, reasonable attorneys fees) by, or on behalf of, Customer
or any third party or user of Customer's Service, relating to this
Agreement, the Services, including 911dialing, or the Device. This
paragraph shall survive termination of this Agreement.
5.4 No Warranties on Service
TALKETALK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT
OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR
COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET
CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, TALKETALK
DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY,
INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT,
DATA OR INFORMATION. NEITHER TALKETALK NOR ITS OFFICERS, DIRECTORS,
EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR
VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER IN CONNECTION
WITH THIS AGREEMENT OR THE SERVICE WILL BE LIABLE FOR UNAUTHORIZED
ACCESS TO TALKETALK'S OR CUSTOMER'S 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 TALKETALK'S
OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND
DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY TALKETALK
OR TALKETALK'S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT
GIVEN AS A WARRANTY OF ANY KIND.
5.5 No Warranties, or Limited Warranties, for Devices
If Customer received the Device new from TalkETalk and the Device
included a limited warranty at the time of receipt, Customer must
refer to the separate limited warranty document provided with the
Device for information on the limitation and disclaimer of certain
warranties. Remedies for breach of any such warranties will be limited
to those expressly set forth in such documentation. If Customer's
Device did not include a limited warranty from TalkETalk at the
time of receipt, Customer agrees that it accepts its Device "as
is" and that Customer is not entitled to replacement or refund
in the event of any defect, except that for Retail Customers only,
TalkETalk will provide a limited warranty on the Device as to manufacturing
defects only for a period of one (1) year from the date of purchase.
This Retail Customer limited warranty shall not apply to any defect
or failure other than a manufacturing defect, and, without limiting
the generality of the foregoing, shall not apply to any defect caused
by damage in transit, retailer handling or Retail Customer handling.
Retail Customer’s sole remedy for any breach of this Retail
Customer limited warranty is to obtain a repaired or replacement
Device, by following the return procedures set forth in Section
1.8. Retail Customer must include with the returned Device a letter
stating that the Retail Customer is returning the Device for warranty
repair or replacement and stating the nature of the defect. This
Retail Customer limited warranty shall also apply in lieu of the
limited warranty included with the Device if such included limited
warranty is less favorable to Retail Customer than that contained
herein. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH
IN DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER
LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, TALKETALK MAKES NO
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS
ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR
PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE
OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY
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 SET
FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE. DEVICE WARRANTIES
DO NOT APPLY TO “SMALL BUSINESS UNLIMITED” CUSTOMERS.
5.6 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.
5.7 Content
You are liable for any and all liability that may arise out of the
content transmitted by or to you or Users using the Services. You
shall assure that your or User's use of the Services and content
will at all times comply with all applicable laws, regulations and
written and electronic instructions for use. TalkETalk reserves
the right to terminate or suspend affected Services, and/or remove
your or Users' content from the Services, if TalkETalk determines
that such use or content does not conform with the requirements
set forth in this Agreement or interferes with TalkETalk's ability
to provide Services to you or others or receives notice from anyone
that your or Users' use or Content may violate any laws or regulations.
TalkETalk's actions or inaction under this Section shall not constitute
review or approval of your or Users' use or Content. You will indemnify
and hold TalkETalk against any and all liability arising from the
content transmitted by or to you or to Users using the Services.
A "User" means any person, whether authorized or unauthorized,
using the Service and/or Device provided to you.
6. GOVERNING LAW / RESOLUTION OF DISPUTES
6.1 Mandatory Arbitration
Any dispute or claim between Customer and TalkETalk arising out
of or relating to the Service or Device provided in connection with
this Agreement shall be resolved by arbitration before a single
arbitrator administered by the American Arbitration Association
in accordance with its Commercial Arbitration Rules (or, for Customers
subscribing to service in Canada, a Canadian arbitration organization
of TalkETalk’s choosing). The arbitration shall take place
in Beaverton, Oregon (or, for Customers subscribing to service in
Canada, Victoria, British Columbia) and shall be conducted in English.
The arbitrator's decision shall follow the plain meaning of the
relevant documents, and shall 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. All claims shall be arbitrated individually and Customer
will 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. CUSTOMER ACKNOWLEDGES THAT THIS ARBITRATION
PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.
6.2 Governing Law
The Agreement and the relationship between you and TalkETalk shall
be governed by the laws of the State of Oregon (or, for Customers
subscribing to service in Canada, applicable Canadian law) 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 6.1, you and TalkETalk agree to submit to
the personal and exclusive jurisdiction of the courts located within
the state of Oregon (or, for Customers subscribing to service in
Canada, courts sitting within the province of British Columbia)
and waive any objection as to venue or inconvenient forum. The failure
of TalkETalk to exercise or enforce any right or provision of the
Agreement shall not constitute a waiver of such right or provision.
If any provision of the Agreement is found by a court of competent
jurisdiction to be invalid, the parties nevertheless agree that
the court should endeavor to give effect to the parties' intentions
as reflected in the provision, and the other provisions of the Agreement
remain in full force and effect. You agree that regardless of any
statute or law to the contrary, any claim or cause of action arising
out of or related to use of the Service or the Agreement must be
filed within one (1) year after such claim or cause of action arose
or be forever barred.
6.3 Entire Agreement
This Agreement and the rates for Services found on TalkETalk's website
constitute the entire agreement between you and TalkETalk and govern
your use of the Service, superseding any prior agreements between
you and TalkETalk and any and all prior or contemporaneous statements,
understandings, writings, commitments, or representations concerning
its subject matter. No amendment to this Agreement shall be binding
upon TalkETalk unless and until posted in accordance with Section
3 hereof.
6.4 Severability
If any part of this Agreement is legally declared invalid or unenforceable,
all other parts of this Agreement are still valid and enforceable.
Such invalidity or non-enforceability will not invalidate or render
unenforceable any other portion of this Agreement.
7. PRIVACY
TalkETalk Service utilizes, in whole or in part, the public Internet
and third party networks to transmit voice and other communications.
TalkETalk is not liable for any lack of privacy which may be experienced
with regard to the Service. Please refer to our Privacy Policy applicable
to you at www.TalkETalk.com for additional information.
Last Updated: August 9, 2005
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