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BINARY TELECOM TERMS OF
SERVICE These Terms of Service constitute the
agreement ("Agreement") between Binary Telecom Inc.. ("we,"
"us" or "Binary Telecom") and the user ("you," "user" or
"Customer") of Binary Telecom'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 Binary
Telecom 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 Binary Telecom 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 Binary Telecom 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 Binary Telecom'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 Binary Telecom in advance. You agree that
the Binary Telecom 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. Binary Telecom reserves the
right to immediately terminate or modify the Service, if
Binary Telecom 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 Binary Telecom'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.
Binary Telecom reserves the right to terminate your service
immediately and without advance notice if Binary Telecom, 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
Binary Telecom’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 Binary Telecom against any and
all liability for any such use. If Binary Telecom, in its
sole discretion believes that you have violated the above
restrictions, Binary Telecom may forward the objectionable
material, as well as your communications with Binary Telecom
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, Binary Telecom 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 Binary Telecom
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 Binary Telecom against any and all liability
for such violation. Binary Telecom 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 Binary Telecom
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 Binary Telecom) 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 Binary
Telecom 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 Binary Telecom suspend or terminate
your Service, the Service will not function until such time
as Binary Telecom 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 Binary
Telecom'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 Binary Telecom are and shall
remain the exclusive property of Binary Telecom 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 Binary Telecom 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 Binary Telecom, which Binary Telecom
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 Binary Telecom 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 Binary
Telecom in each instance which Binary Telecom may deny in
its sole discretion. Binary Telecom 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 Binary Telecom immediately, in writing
or by calling the Binary Telecom 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 Binary
Telecom 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 Binary Telecom 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 Binary Telecom’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 Binary Telecom's
customer care department immediately. To obtain a return
authorization number, you must contact
billing@binarytelecom.com or 1-877-TALK-504.
1.9 Number Transfer on Service Termination
Upon termination of the Service, Binary Telecom may, at its
sole discretion, release a telephone number that was ported
in from a previous service provider to Binary Telecom by you
and used in connection with your Service provisioned by
Binary Telecom 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 Binary
Telecom 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 Binary Telecom. 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 Binary Telecom.
1.12 No 0+ Calling; May Not Support x11 Calling
Binary Telecom’s Service does not support 0+ calling
(including without limitation collect, third party billing
or calling card calling). Binary Telecom’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. Binary Telecom does
offer a limited 911-type service available only on Binary
Telecom 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 Binary Telecom 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. Binary Telecom 911 dialing cannot be used in
conjunction with a Binary Telecom Soft Phone application and
is only available on Binary Telecom-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
Binary Telecom 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
Binary Telecom 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 Binary
Telecom 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
Binary Telecom 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. Binary
Telecom relies on third parties for the forwarding of
information underlying such routing, and accordingly Binary
Telecom 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 Binary Telecom 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 Binary Telecom. You
agree to indemnify and hold harmless Binary Telecom 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 Binary Telecom 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 Binary Telecom
You acknowledge and understand that service outages or
suspension or termination of service by your broadband
provider and/or ISP or by Binary Telecom 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 Binary Telecom'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 Binary Telecom, 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 Binary Telecom 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 Binary Telecom 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 Binary Telecom 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 Binary Telecom 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 Binary
Telecom 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 Binary Telecom equipment as compared to
traditional 911 dialing over traditional public telephone
networks. You acknowledge and understand that 911 dialing
from your Binary Telecom equipment will be routed to the 911
dispatcher(s) who are specifically designated to receive
incoming 911 calls. You acknowledge and accept that Binary
Telecom relies on third parties for the forwarding of
information underlying such routing, and accordingly Binary
Telecom and its third party provider(s) disclaim any and all
liability or responsibility in the event such information or
routing is incorrect. Binary Telecom 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
Binary Telecom.
2.9 Automated Number Identification
At this time in the technical development of Binary Telecom
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.
Binary Telecom's system is configured in most instances to
send the automated number identification information;
however, one or more telephone companies, not Binary
Telecom, 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 Binary Telecom
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
Binary Telecom 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 Binary Telecom’s website
(currently located at http://www.Binary
Telecom.com/legal-notices.shtml). Such changes will become
binding on Customer, on the date posted to the Binary
Telecom website and no further notice by Binary Telecom 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 Binary Telecom) or a check when the Service
is activated. It is recommended you keep a credit card on
file to avoid service interruption. Binary Telecom 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 Binary
Telecom 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 Binary Telecom 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. Binary
Telecom 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 Binary Telecom’s website.
4.2 Billing Disputes
You must notify Binary Telecom in writing within 7 days
after receiving your credit card statement if you dispute
any Binary Telecom charges on that statement or such dispute
will be deemed waived. Billing disputes should be notified
to the following address:
Customer Care Billing Department
Binary Telecom Inc.
10200 SW Allan Blvd. Ste D
Beaverton, OR 97005
or
billing@Binary Telecom.com
4.3 Payment
Binary Telecom accepts payments only by means as set forth
in Section 4.1. Your initial use of the Service authorizes
Binary Telecom to charge the credit card account number on
file with Binary Telecom, including any changed information
given Binary Telecom if the card expires or is replaced, or
if you substitute a different card, for Binary Telecom
charges as set forth in Section 4.1. This authorization will
remain valid until 30 days after Binary Telecom receives
your written notice terminating Binary Telecom's authority
to charge your credit card, whereupon Binary Telecom will
charge you the disconnect fee and any other outstanding
charges and terminate the Service. Binary Telecom may
terminate your Service at any time in its sole discretion,
if any payment isn’t received by Binary Telecom in a timely
manner. In the event of a declined, reversed, or expired
credit card and you have not provided Binary Telecom 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 Binary Telecom for ALL CHARGES
ACCRUED BEFORE TERMINATION and for all costs incurred by
Binary Telecom in collecting such amounts, such as (but not
limited to) collection costs and attorney's fees.
4.4 Termination/Discontinuance of Service
Binary Telecom reserves the right to suspend or discontinue
providing the Service generally, or to terminate your
Service, at any time in its sole discretion. If Binary
Telecom 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 Binary Telecom or of a third party
provider to which Binary Telecom 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 Binary Telecom with
an original certificate that satisfies applicable legal
requirement attesting to tax-exempt status. Tax exemption
will only apply from and after the date Binary Telecom
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. Binary Telecom 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, Binary Telecom 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
Binary Telecom 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, Binary Telecom 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. Binary Telecom 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 Binary Telecom 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 Binary Telecom 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@Binary Telecom.com.
4.8 Payphone Charges
If you make use of Binary Telecom’s Toll Free Plus feature
any toll free feature that may be offered by Binary Telecom
in the future, you acknowledge and agree that Binary Telecom
is entitled to recover from you any charges imposed on
Binary Telecom by payphone owners or operators, either
directly or indirectly through Binary Telecom’s suppliers in
connection with toll free calls made to your number, or any
charges imposed on Binary Telecom by its suppliers to
recover such costs. Binary Telecom may recover these amounts
by means of a per-call charge, rounded up to the next cent,
or in such other fashion as Binary Telecom deems appropriate
for the recovery of these costs.
4.9 Charges for Directory Calls
Binary Telecom will charge 99 cents for each call made to
Binary Telecom directory assistance.
5. WARRANTY and LIABILITY LIMITATIONS / INDEMNIFICATION
5.1 Limitation of Liability
Binary Telecom 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 Binary Telecom'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.
Binary Telecom's aggregate liability for (i) any failure
or mistake; (ii) any claim with respect to Binary Telecom’s
performance or nonperformance hereunder or (iii) any Binary
Telecom 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 BINARY TELECOM, 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 BINARY TELECOM WAS
INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF
DAMAGES.
5.3 Indemnification
Customer agrees to defend, indemnify, and hold harmless
Binary Telecom, 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
BINARY TELECOM 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,
BINARY TELECOM 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 BINARY TELECOM 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 BINARY TELECOM'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 BINARY TELECOM'S OR ITS SERVICE
PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND
DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY
BINARY TELECOM OR BINARY TELECOM'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 Binary Telecom 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
Binary Telecom 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, Binary
Telecom 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, BINARY TELECOM 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. Binary Telecom reserves the right to
terminate or suspend affected Services, and/or remove your
or Users' content from the Services, if Binary Telecom
determines that such use or content does not conform with
the requirements set forth in this Agreement or interferes
with Binary Telecom'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. Binary
Telecom'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 Binary Telecom 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 Binary Telecom
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
Binary Telecom’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 Binary
Telecom 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 Binary Telecom 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 Binary Telecom
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 Binary
Telecom's website constitute the entire agreement between
you and Binary Telecom and govern your use of the Service,
superseding any prior agreements between you and Binary
Telecom 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 Binary Telecom 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
Binary Telecom Service utilizes, in whole or in part, the
public Internet and third party networks to transmit voice
and other communications. Binary Telecom 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.binarytelecom.com> for additional
information. |
