Phone terms of use

THERE ARE IMPORTANT 9-1-1 TERMS, CONDITIONS AND LIMITATIONS RELATED TO THE babyTEL® VOIP SERVICE SET FORTH IN SECTION 8 OF THIS AGREEMENT. BY SUBSCRIBING FOR THIS SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO ALL OF THE TERMS, CONDITIONS AND LIMITATIONS SET FORTH IN THIS AGREEMENT INCLUDING THOSE RELATING TO 9-1-1 AS STATED IN SECTION 8 OF THESE TERMS OF USE.

This agreement (“Agreement”) for Voice over Internet Protocol (VoIP) and related Services is between babyTEL, a Canadian corporation (“we”, “us” or “babyTEL”) and the user (“you”, “user” or “Customer”) of babyTEL’s Service.

1. Definitions

Device(s) – any device(s) including all of their components, such as analog telephone adapter, IP phone, Gateways, Softphone or any other IP connection device.

Service – includes a VoIP telephone connection that allows you to make or receive telephone calls over the Internet to or from the public switched telephone network (PSTN) when you subscribe to a babyTEL Service Plan. The Service also permits you to make or receive calls with other babyTEL subscribers entirely over the Internet. Without limiting the generality of the foregoing, the Service shall be provided to you with the features then indicated, and subject to the then current terms and rates of the babyTEL Service Plan to which you subscribe as set forth on the babyTEL web site (www.babytel.net) from time to time.

2. Preamble

You represent that you are, or lawfully represent, a legal person capable of entering into this Agreement. Furthermore, if you are an individual, you are of majority age.

This Agreement governs the terms and conditions of both the use of the Service provided, and the Devices used in conjunction with the Service. By activating the Service and by clicking “I Accept” below, you acknowledge that you have read, understood, and agree to be bound by the terms and conditions of this Agreement.

3. Term

The Service is offered on a monthly term first beginning on the earlier of the date you activate your account online or 10 days after the date your account was created (herein referred to as the “Anniversary Date”) and ends on the day before the same date in the following month. This Agreement will automatically renew each month, at babyTEL’s then current rates and terms, without further action by you unless you provide babyTEL with written notice of non-renewal not less than ten [10] days prior to the end of the monthly term in which the notice is given. You agree that you are purchasing the Service for full monthly terms, meaning that if you terminate the 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 (where applicable), all of which will be immediately due and payable. Upon expiry of the term or termination of the Service, you remain responsible for paying all unpaid and accrued charges due on an accelerated basis.

4. User Requirements

To use the Service, the user must have a high-speed Internet connection (not provided by babyTEL) via cable, DSL or Ethernet. Typical bandwidth required for each simultaneous voice call is 14Kbps. However you may require up to 90Kbps in some circumstances. A Device which may be procured from babyTEL is also required. In the case of a babyTEL Softphone Device the user must also have a computer. You also may elect to connect through a router. You assume all responsibility regarding the suitability of the router, programming of the router, and connection to the Internet and its ability to carry the voice traffic.

5. Use Of Service

5.1. Conditions Applicable to Residential Service Plan Use: When you subscribe for a Residential Service Plan, that Plan is only for personal use. Use of a Residential Service Plan for business purposes is strictly prohibited.

5.2. Conditions Applicable to All Plans:

5.2.1. Prohibition Against Resell, etc: You are not to resell, lease, license, sub-license, transfer or assign the Service or the Device to any other person for any purpose, or make any charge for the use of the Service, without prior written permission from babyTEL.

5.2.2. Current Terms: The features and terms associated with the Service offered by babyTEL from time to time shall be as then set forth on the babyTEL web site (www.babytel.net). It is your responsibility to consult the babyTEL web site from time to time to be informed of any new feature and terms, or changes to the features and terms, associated with the Service you have subscribed for.

5.2.3. Other Users: You may allow other individuals in your household (when you subscribe for a Residential Service Plan), business or office (when you subscribe for a Small Business Service Plan or an Enterprise VoicePath) to use the Service. However you are fully responsible for their compliance with this Agreement and for payment of all charges relating to their use of the Service. Except as otherwise stated on the babyTEL web site (www.babytel.net) users may only make one simultaneous call per Residential Service Plan, Small Business Service Plan or per Enterprise VoicePath. You agree that your use of the Service to make more than one simultaneous call except as otherwise stated on the babyTEL web site (www.babytel.net) will obligate you to pay babyTEL for additional Residential Service Plan, Small Business Service Plan or Enterprise VoicePath on account of all periods, including past periods, in which you made simultaneous calls.

5.2.4. Pay-As-You-Go Service Plan: For users who have subscribed to babyTEL’s Pay-As-You- Go Service Plan, you will be charged at the rates indicated on the babyTEL web site (www.babytel.net) for all calls including incoming calls, outgoing calls and calls to voicemail. Take note that the rates associated with each of the Residential Pay-As-You-Go Service Plan, the Small Business Pay-As-You-Go Service Plan and the Enterprise Pay-As-You-Go VoicePath may all be different from one another, so care must be taken to consult the current rates applicable to your specific Service Plan.

5.2.5. Fair Use: babyTEL, in babyTEL’s sole discretion, hereby reserves the right to terminate your Service (including your Service Plan) with 30 days advance written notice sent by email or regular mail, if User’s calling patterns materially exceed babyTEL’s average subscriber calling pattern under a similar plan. babyTEL’s decision in this regard shall be final. Without limiting the foregoing, use of any babyTEL Service Plan (except for the Enterprise Pay-As-You-Go VoicePath) for or by call centers, or for or by any application with continuous or excessive calling patterns, is strictly prohibited. Furthermore, use of the Service for auto-dialing, call forwarding, telemarketing (including, without limitation, charitable, marketing or political solicitation or polling), fax broadcasting or fax blasting, is strictly prohibited. babyTEL reserves the right to (1) immediately terminate or modify the Service, and (2) charge an administrative fee of US$100.00 per day of service during which Customer engaged in prohibited activities, if babyTEL determines, in its sole discretion, that Customer’s Service is/was being used for such prohibited activities or in any other manner prohibited by this Agreement.

6. Use Policy And Prohibitions:

You agree to abide by the following policy concerning use, as may be modified from time to time and communicated to you via the babyTEL web site, by email or other manner determined by babyTEL in babyTEL’s sole discretion. By using the Service you hereby agree to: (a) abide by all applicable laws, rules, and regulations relating to, without limitation, the electronic use, posting or transmission of content, software or other matter; and (b) not (nor allow any person to) (i) use the Service or the babyTEL Web site in any manner which is illegal, fraudulent or deceptive, harassing, threatening, harmful, libelous, defamatory, abusive, slanderous, hateful, sexually, racially or ethnically objectionable, vulgar, pornographic, obscene, or otherwise objectionable material of any kind including but not limited to any material that encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, municipal, county, state, national or international law (including international treaty) or regulation; (ii) attempt to gain unauthorized access to the database or other network or computer systems of babyTEL or any other person; or (iii) interfere with another’s use and enjoyment of the babyTEL Services. Furthermore, you may not, nor may you allow others, directly or indirectly, to attempt to or actually: (a) disrupt, disable, impair or interfere with, overburden, alter or modify the Service or restrict or inhibit in any way any other visitor or user from accessing or using the Service, including, without limitation, by means of “hacking”, “cracking” or defacing any portion of the Service, the Device and/or any activities being conducted on or through the Service; (b) transmit any software, device, routine or other materials that contain any virus, worm, time bomb, “Trojan horse”, or other harmful, destructive or disruptive component; (c) use any robot, spider, site search/retrieval application, or other manual or automated device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Service; or (d) collect or harvest any information about other visitors or users of the Service and/or any of babyTEL’s employees, officers, directors, shareholders, partners, representatives, agents or content providers by any means including, but not limited to, those described in this Agreement. You may not, nor may you allow others, directly or indirectly, to obtain or attempt to obtain any materials or information through any means not made expressly available through the Service and as expressly permitted under this Agreement. Without limitation, babyTEL reserves the right to terminate your Service immediately, resulting in the immediate payment of all amounts due, without advance notice if you violate the above restriction. Further, you will be liable to babyTEL and other third parties that suffer prejudice from your unauthorized use, misuse or modification of the Service.

6.1. Unauthorized Use: You agree to immediately notify babyTEL of any unauthorized use of your account or any other breach of security known to you.

6.2. Use of Device: You agree that the Device is exclusively for use in connection with the Service. You agree not to tamper with or modify the Device in any manner, including, without limitation, not changing the electronic serial number or Device identifier, or not performing a factory reset, or not otherwise damaging, impairing, altering or interfering with the firmware. You agree to use the Device in the manner and for the purpose in which it was intended and solely as expressly permitted under this Agreement.

6.3. Stolen Device & Fraudulent Use: You must notify babyTEL immediately, in writing by email, and by calling the babyTEL customer support line, if a Device is stolen or fraudulently used by another party. When you call and write babyTEL you must provide your account number and a detailed description of the circumstances of the theft or fraudulent use of the Device.

6.4. Non-infringing & Reverse-Engineering: Any software made available to you by babyTEL is governed by these Terms of Use and the terms set forth in the applicable end user license agreement. You may not reverse engineer, decompile or otherwise attempt to discover any source code contained in the Device and the software available on the babyTEL web site (as may be applicable). Furthermore, you may not copy, reproduce, distribute or relocate the Device or the software, or make any other use not expressly permitted under this Agreement or prohibited under the law.

6.5. Unauthorized Use or Patterns: You agree that you shall not use the Service in a manner that is not expressly permitted by this Agreement and the terms and conditions of the babyTEL web site (www.babytel.net).

6.6. Illegal Uses: Use of the Service or any of the Devices for an injurious, illegal or immoral use or purpose is strictly prohibited.

7. Service Limitations

Not a traditional telephone service: You recognize, acknowledge and understand that the Service is not a traditional telephone service. Differences exist between traditional telephone service and the babyTEL Service including but not limited to the lack of traditional 9-1-1 services and privacy, as explained below in Sections 7.8 and 8 below. The Service is subject to a different regulatory treatment than traditional phone services and may limit or affect your rights of redress before the FCC.

7.1 No Operator Services: The Service does not support calls to operator services.

7.2. No Directory Listing. The phone numbers you obtain from us will not be listed in any telephone directories. Phone numbers transferred from your local phone company may, however, be listed.

7.3. Service Outage or deterioration due to third parties: You acknowledge and understand that the Service will not operate in the event of a power failure, or a failure of the Internet link. Excessive congestion of the Internet link may lead to deterioration in quality, which in turn can lead to Service failure. You acknowledge and agree that babyTEL is not liable in this regard.

7.4. Service Outage Due to Suspension of Account: You acknowledge and understand that should your account be terminated or suspended due to non-payment or other breaches of this Agreement, the Service will not function.

7.5. No 900 and 976 numbers Calls: babyTEL Services may not access certain special service phone numbers such as, without limitation, 900- and 976- numbers. babyTEL reserves the right to limit your ability to call any such numbers at its sole discretion.

7.6. Incompatibility With Other Services:

7.6.1. Home Security Systems: The Service may not be compatible with home security systems. You may be required to maintain a telephone connection through your local exchange carrier in order to use any alarm monitoring functions for any security system installed in your home or business. You are responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.

7.6.2. Certain Broadband, Cable Modem, and Other Services: You acknowledge that the Service presently is not compatible with some cable broadband service, and there may be other services with which the Service may be determined to be incompatible. You further acknowledge that some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.

7.7. Use of Service and Device by Customers outside the United States and Canada: babyTEL does not presently offer or support the Service to customers located outside the United States and Canada. If a Device is installed outside the United States and Canada and the Service is used, there is the risk that such activity violates laws in the country where you do so. You acknowledge and agree that you will be solely responsible for any violations of local laws and regulations resulting from such use. You are liable for any and all use of the Service and/or Device by any person making use of the Service or Device provided to you. You acknowledge and agree that babyTEL is not liable in this regard.

7.8. Privacy: babyTEL Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. You acknowledge and agree that babyTEL is not liable for any lack of privacy, which may result by the use of the Service. Please refer to our Privacy Statement at the babyTEL web site (www.babytel.net) for additional information.

8. babyTEL’s Emergency Calling Service: 9-1-1

PLEASE READ THIS INFORMATION REGARDING 9-1-1 VERY CAREFULLY. BY ACTIVATING AND PAYING FOR THE SERVICE, YOU ACKNOWLEDGE AND AGREE TO THE LIMITATIONS OF babyTEL’s 9-1-1 EMERGENCY DIALING SERVICE, AND UNDERSTAND THE DISTINCTIONS BETWEEN SUCH SERVICE AND TRADITIONAL 9-1-1 or E9-1-1 CALLS. babyTEL’s Basic 9-1-1 or Enhanced 9-1-1 (E9-1-1) service (the ‘9-1-1 Service’) is different from traditional 9-1-1 land line service.

• THE 9-1-1 SERVICE DOES NOT WORK IF YOU FAIL TO REGISTER OR UPDATE THE 9-1-1 SERVICE WITH YOUR CURRENT LOCATION
• THE 9-1-1 SERVICE MAY NOT BE ACTIVATED UNTIL UP TO 72 HOURS AFTER REGISTRATION
• THE 9-1-1 SERVICE WILL NOT WORK IF THERE IS A SERVICE OUTAGE FOR ANY REASON INCLUDING AN ELECTRICAL OR INTERNET SERVICE OUTAGE
• THE 9-1-1 SERVICE WILL NOT WORK IF YOUR SERVICE HAS BEEN CANCELLED BY YOU OR TERMINATED OR SUSPENDED BY babyTEL
• YOU INDEMNIFY babyTEL FOR ANY FAILURE IN THE 9-1-1 SERVICE

8.1. Nomadic VoIP Service: As a current customer of babyTEL or a future customer of babyTEL, you have subscribed or will subscribe to VoIP telephone service offered by babyTEL according to these ‘Terms of Use’. The Service that we provide is known as a nomadic VoIP service. This means that babyTEL allows Customer to make calls from anywhere that you have access to a broadband internet service. As you know, you can simply bring your telephone devices with you and use the Service wherever you are located.

However, because of these nomadic capabilities, babyTEL is not currently able to automatically detect whether the Service is being used from the registered service address or from some other location. Consequently, when a subscriber relocates, babyTEL no longer has valid 9-1-1 routing or ALI (Automatic Location Information) data with which to process 9-1-1 calls from that Customer, unless the Customer updates his/her location information.

8.1.1. Registration of Physical Location Required. For each babyTEL account that you use for the Service, you must register with babyTEL the initial physical location where you will be using the Service with that phone number before you activate the Service by following the instructions from the “9-1-1” registration link on your babyTEL web account. For purposes of the 9-1-1 Service, you may only register one location at a time for each phone line you use with the Service. When you move the Device to another location, you must register your new location. If you do not register your new location, any call you make using the 9-1-1 Service will be sent to an emergency center near your old address.

8.1.2. Re-Registration Required if You Change or Port Your Number. The 9-1-1 Service does not function if you change your phone number or if you add or port new phone numbers to your account, unless and until you successfully register your location of use for each changed, newly added or newly ported phone number and receive confirmation from babyTEL.

8.2. babyTEL’s 9-1-1 Service: Pursuant to the recent orders by the Federal Communications Commission for interconnected VoIP Providers, babyTEL has, in compliance with such orders, implemented an emergency calling service or 9-1-1 service (the ‘9-1-1 Service’).

Most babyTEL customers have access to either basic 9-1-1 or Enhanced 9-1-1 (E9-1-1) service. With E9-1-1 service, when you dial 9-1-1, your telephone number and registered address is simultaneously sent to the local emergency center assigned to your location, and emergency operators have access to the information they need to send help and call you back if necessary. Customers in locations where the emergency center is not equipped to receive your telephone number and address have basic 9-1-1. With basic 9-1-1, the local emergency operator answering the call will not have your call back number or your exact location, so you must give them this information. Until you give the operator your phone number, he/she may not be able to call you back or dispatch help if the call is not completed or is not forwarded, is dropped or disconnected, or if you are unable to speak. As additional local emergency centers become capable of receiving our customers’ information, babyTEL will automatically upgrade customers with basic 9-1-1 to E9-1-1 service. babyTEL will not give you notice of the upgrade.

Certain customers do not have access to either basic 9-1-1 or E9-1-1. If you don’t have access to basic 9-1-1 or E9-1-1 your 9-1-1 call will be sent to the national emergency call center. A trained agent at the emergency call center will ask for your name, telephone number and location, and then contact the local emergency center to send help to the location that you verbally provide. Examples of situations where 9-1-1 calls will be sent to the national emergency call center include when there is a problem validating a customer’s address, the customer is identified with an international location, or the customer is located in an area that is not covered by the enhanced 9-1-1 network.

You authorize us to disclose your name and address to third-parties involved with providing 9-1-1 Dialing to you, including, without limitation, call routers, call centers and local emergency centers.

In order to use the 9-1-1 Service, you will need to activate it according to the instructions you are provided, and which can be found at www.babytel.net/us/en/HomePhone/Extras/911Service.html.

For a complete and full description of the 9-1-1 Service go to www.babytel.net/us/en/HomePhone/Extras/911Service.html.

8.3. Limitations To The 9-1-1 Service: babyTEL is advising Customer of the following inherent limitations to the 9-1-1 Service due to the nomadic characteristics of VoIP Service. The 9-1-1 Service will not be accessible or available in the following situations:

• You have not successfully activated the 9-1-1 Service AND have not received an email from babyTEL confirming your successful activation;
• In case of Network Congestion; and
• a Service outage has occurred for any reason, including the following:
  • Power failure or disruption;
  • Internet connection outage/termination by your Internet service provider;
  • babyTEL terminates, suspends or cancels your VoIP Service for any of the reasons specified in our Terms and Conditions of Use .

The 9-1-1 emergency responders that are part of the 9-1-1 Service may be delayed if: You do not provide us with your current and accurate location information (i.e., where you are);(Please see Registration of Physical Location Required above); You do not advise us immediately of any changes that you make to the location information that you initially provided us; Verification of your location information is not completed: It can take up to 72 hours to complete the verification once we receive new location information; Misrouting of 9-1-1 calls occur for any reason including but not limited to your failure to follow correct activation procedures for 9-1-1 calling or your provision to us of incorrect or inaccurate or not current information in connection with the 9-1-1 Service.

In the event that an emergency call in progress is interrupted, 9-1-1 emergency personnel will be unable to call you at the phone from which you originated the call if: You have call-forwarding, do-not-disturb or other features programmed and in use at the time you dial a 9-1-1 call; Your telephone ringer is set to OFF;

8.4. Notify All Users. In the interest of everyone’s safety, you are obliged to inform all potential users of your babyTEL line (including your employees and officers of your business and visitors to your business, office or any household residents, guests and other third persons who may be present at the physical location where you utilize the Service) of these important differences in and limitations of the 9-1-1 Service as compared with basic 9-1-1 or E9-1-1. The documentation that accompanies each Device that you purchase will include a sticker concerning the potential non-availability of basic 9-1-1 or E9-1-1 (the “9-1-1 Sticker”). It is your responsibility, in accordance with the instructions that accompany each Device, to place the 9-1-1 Sticker on each Device that you use with the Service. If you did not receive a 9-1-1 Sticker with your Device, or you require additional 9-1-1 Stickers, please contact babyTEL customer care department (toll free) 1-877-808-VoIP (8647).

8.5. Alternate 9-1-1 Arrangements. babyTEL recommends that you should consider having an alternate means of accessing traditional 9-1-1 or E9-1-1 services.

8.6. Limitation Of Liability: We do not have any control over whether, or the manner in which, calls using our 9-1-1 Dialing service are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 9-1-1 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither babyTEL, its affiliated or related companies, divisions, nor any of our or their respective officers, employees, directors, shareholders, agents, content providers or service partners shall 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 the Service and/or the 9-1-1 Service, including, without limitation, your inability to dial 9-1-1 from your line or to access emergency service personnel unless it is proven that the act or omission causing the claim, damage, or loss constitutes gross negligence, recklessness, or intentional misconduct on the part of babyTEL.

You agree to defend, indemnify, and hold harmless babyTEL, its affiliated and related companies, divisions, and our or their respective officers, employees, directors, shareholders, affiliates and agents and any other third party service provider who furnishes services to you or to us in connection with VoIP Service, from and against any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable legal fees and expenses) by, or on behalf of, you or any third party or user of your VoIP Service relating to the absence, failure or outage of the VoIP Service, including, without limitation, the 9-1-1 Service and/or the inability or Customer and/or any third person or party or user that gains access to or use of the VoIP Service with or without your express or implied authorization to be able to dial 9-1-1 or to access emergency service personnel, and any misrouting of 9-1-1 calls, including but not limited to your failure to follow correct activation procedures for 9-1-1 calling or your provision to us of incorrect or inaccurate or not current information in connection with the 9-1-1 Service.

8.7. Acceptance

Notwithstanding the Limitations that are discussed above, and having fully read and understood those Limitations as well as the limits of babyTEL’s liability, you hereby fully acknowledge and accept, without limitation, the VoIP Service and the 9-1-1 Service as currently offered.

9. Copyright / Trademark / Unauthorized Usage Of Device, Firmware Or Software

The Service and all Service information, documents, software, Device, firmware, software, and materials on babyTEL’s web site(s), as well as all of the following (whether registered or unregistered): names, logos, trademarks, trade names, service works, copyrights, patents and other intellectual property (the “babyTEL Property”) are the exclusive property of babyTEL or its licensors and are protected by intellectual property laws and international treaty provisions. You acknowledge that: (a) you will not contest the ownership of the babyTEL Property; (b) you are not given any license to use the firmware or software used to provide the Service or provided to the Customer in conjunction with providing the Service, or embedded in the Device, other than a non- transferable, non- assignable, automatically revocable license to use the babyTEL Property (without making any modification thereto) provided to the Customer or otherwise made accessible to the Customer strictly in accordance with the terms and conditions of this Agreement. If you decide to use the Service through an interface device not provided by babyTEL, which babyTEL reserves the right to prohibit in particular cases or generally at any time, 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 babyTEL, its affiliated and related companies, divisions and our and their respective employees, officers, directors, shareholders, agents and third party service providers against any and all liability arising out of your use of such interface device with the Service. You furthermore agree that your use of an interface device may, in babyTEL’s sole discretion, disqualify you from the benefits of babyTEL’s offer of a Money-Back Guarantee and any other indemnification permitted to you under law or this Agreement.

10. Charges / Payments / Default / Taxes

10.1. Billing and Payment: You must give us a valid credit card number when the Service is purchased. babyTEL will bill all charges to your credit card. The charges include but are not limited to:

Activation Fee – This fee covers charges for setting up your account and activating you on our system and for making changes to your account.

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

Usage Charges – babyTEL will bill you for the minutes you use above your allowance if you exceed the number of calling minutes on your plan or if you make calls to locations outside of the US and Canada. Usage charges are also billed for calls to directory assistance and other information services.

Device rental charges – the monthly for Device rental, where applicable.

Feature charges – additional fees charged by babyTEL for enhanced features and services such as Virtual Phone Number and Multiple Devices.

Device Purchases – payment for babyBOX, Softphone or other Device purchased by Customer.

Regulatory Recovery Fee – A regulatory recovery surcharge of $0.99 applies to each phone number. babyTEL collects this fee to pay our regulatory-related fees and expenses, including taxes, number portability charges, CALEA and related legal fees.

Emergency 9-1-1 Cost Recovery of $0.99 applies to each line of service. This fee is used to recover costs directly associated with developing, implementing and maintaining a nationwide E9-1-1 in compliance with FCC regulations, babyTEL 9-1-1 Service and the babyTEL national 9-1-1 emergency call center.

9-1-1 Fees – State and/or local governments may assess fees on babyTEL to pay for emergency services in your community. babyTEL bills and collects 9-1-1 fees from its customers and remits such fees to the appropriate authority. Depending on where you live, these fees can vary widely. babyTEL is committed to supporting public safety services and resources in your State. For more information, and to learn more about the fees collected in your community for emergency services, contact your state or local elected official.

Monthly fees for Service, Device rental charges, feature charges where applicable, regulatory recovery fee; Emergency 9-1-1 Cost Recovery; 9-1-1 fees will be charged to your credit card monthly in advance. All usage charges for long distance, local minutes, directory assistance (411), etc. that are not included in, or exceed, the features of the selected package will be charged to your credit card monthly in arrears. However babyTEL reserves the right to bill at more frequent intervals if the amount due at any time exceeds $50. Charges for activation fees, deactivation fees or plan change fees (where applicable), Device purchases (where applicable), and shipping and handling charges will be charged to your credit card at the time of your order.

Your acceptance of this Agreement by clicking “I Accept” below authorizes babyTEL to charge the credit card on file with babyTEL, including any modified information given to babyTEL if the credit card expires or is replaced, for all charges as described herein. This authorization will remain valid until 30 days after babyTEL receives your written notice terminating babyTEL’s authority to charge your credit card or until all accrued charges to your accounts are paid whichever is later.

If the credit card expires, you close your account or your billing address changes, or the credit card is cancelled and replaced owing to loss or theft, or cancelled for any other reason, you must advise babyTEL.

If the packaging containing any Device is visibly damaged upon receipt, please note the damage on the carrier’s freight bill or receipt and keep a copy. Keep the original packaging, all packing materials and parts intact and contact babyTEL’s Customer Care department immediately. Warranty coverage varies depending on the type of Device that you choose and babyTEL’s determination of the reasons for damage. Please refer to the appropriate babyTEL device warranty on the babyTEL web site (www.babytel.net). If babyTEL’s Customer Care service department determines, in babyTEL’s sole discretion, that the aforementioned damage was caused by you or a third party, then you agree that babyTEL shall not be liable for such damages. You acknowledge and agree that babyTEL’s decision in this regard shall be final and binding.

10.2. Toll Charges: Long Distance Charges for calls through the Service will be billed to you at rates established by babyTEL and posted on the babyTEL web site (www.babytel.net). These rates may be changed from time to time at babyTEL’s sole discretion and will be posted on the babyTEL web site. Currently there are no charges for calls between babyTEL users; however charges may be levied at the sole discretion of babyTEL and will be posted on the babyTEL web site. Call times for each call are rounded up and billed in six (6) second increments. Per-call charges are rounded up to the next whole penny. All calls for which we receive answer supervision and last for at least six (6) seconds, as explained below, shall incur a minimum thirty (30) second charge. babyTEL relies on answer supervision to determine whether and when a call has been answered. Answer supervision is a signal sent by the carrier connecting the call to indicate the start of call. Answer supervision is generally received when a call is answered; however, answer supervision may also be generated by voicemail systems, private branch exchanges, and inter-exchange switching equipment. Where no answer supervision is received, we will commence billing forty (40) seconds following dial time unless the caller has terminated the call.

10.3. 411 Call (Directory Assistance) Charges: This service is available and will be billed to you at the then current rates for this service established by babyTEL as posted on the babyTEL web site (www.babytel.net). These rates can be changed from time to time without notice at babyTEL’s sole discretion.

10.5. Taxes: The Customer is responsible for, and shall pay applicable federal, state and municipal taxes, Universal Services Fund or any additional telecommunication or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of Customer’s subscription or use or payment for the Service or purchase or rental of a Device. Such amounts are in addition to payment for the Service and will be charged to your account.

10.5. Billing Disputes: You must notify babyTEL in writing within seven (7) days after your monthly statement is posted in your account section on the babyTEL Web site or is sent to your email address if you dispute any babyTEL charges on that statement or you agree that all charges will be deemed accepted by you. Written notice of a billing dispute must be sent by mail or email to the following address:

Customer Care Billing Department babyTEL
1425 Rene-Levesque W.
Suite 700
Montreal, Quebec Canada
H3G 1T7
or
billing@babytel.net

11. Termination / Discontinuance Of Service

11.1. By Customer: Cancellation of Service by Customer: You may cancel the Service by requesting a cancellation of Service form from service@babytel.net and returning the form once completed at least 10 days prior to the end of your month’s term. Service provision will be cancelled as at the end of the current month or if not received in due time, the next billing month. There will be no refund on your current monthly charge and all usage fees will be charged to your credit card account as well as a disconnect fee, if applicable, according to the rate established below.

11.2. By babyTEL: Suspension or Termination of Service by babyTEL: babyTEL may suspend or terminate your Service anytime after sending Customer 5 days’ advance written notice (by email or regular mail) at any time in babyTEL’s sole discretion (and you acknowledge and agree that babyTEL’s decision in this regard shall be final and binding) if:

11.2.1. any charge to your credit card on file with babyTEL is declined or reversed or in case of any other non-payment of account charges. You agree that termination of Service for declined card, reversed charges or non-payment leaves you FULLY LIABLE to babyTEL for ALL CHARGES ACCRUED BEFORE AND THROUGH THE DATE OF TERMINATION and for charges incurred by babyTEL owing to your non- payment, such as (but not limited to) collection costs and attorney’s fees;

11.2.2. Customer is violating or has violated babyTEL’s fair use policy, or Customer is engaging in or has engaged in fraudulent, abusive, injurious, illegal or immoral use or a use which violates this Agreement;

11.2.3. upon Customer’s death, if Customer is an individual;

11.2.4. upon the insolvency, voluntary or involuntary bankruptcy, of Customer or where Customer enters into voluntary or involuntary receivership, or (if the Customer is not an individual) voluntarily or involuntarily surrenders its charter or articles of organization or undergoes a merger, or any other like circumstance; or

11.2.5. for any reason whatsoever.

If babyTEL terminates your Service at 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 the law, or because of any improper use of the Service or Device (such as, but not limited to, your attempts to transfer, hack, crack, disrupt, or misuse the Service), you will be responsible for the full month’s charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, if applicable and as stipulated below, all of which become immediately due and payable. The remedies available to babyTEL as stated herein do not exclude babyTEL’s other rights, recourses and remedies against you.

11.3. Disconnect Fee: If you have rented a Device (other than a Softphone) from babyTEL, you will be charged a disconnect fee of $40.00 per Device upon termination of Service for any reason. The disconnect fee becomes due and payable immediately upon termination and will be charged directly to your credit card.

The disconnect fee will be fully reimbursed upon return of the rented Device(s) if returned at your expense within fourteen (14) days of termination under the following conditions: * The Device must be undamaged and in original condition. * All documentation and packaging materials are returned. * A valid Return Material Authorization (RMA) number must be indicated on the package and shipping document. The RMA will be sent to you by email by babyTEL upon receipt of your cancellation form.

11.4. No Liability: You acknowledge and agree that babyTEL shall not be liable whatsoever for any decision babyTEL makes concerning the suspension, modification, termination or cancellation of your Service. In the event that babyTEL determines to terminate or cancel your Service, then all amounts owing to babyTEL, whether current, arrears or accrued, shall become immediately due and payable to babyTEL and the Customer’s liability for all such amounts shall survive the termination of this Agreement and the Service until paid in full. Furthermore, the license babyTEL has granted you in connection with the Service and the babyTEL Property shall at the same time be automatically revoked and this Agreement automatically terminated (subject to the provisions of this Agreement which are deemed to survive such termination). The Customer will be required, at the Customer’s expense, to return to babyTEL in its original condition all of babyTEL Property in the Customer’s possession or under the Customer’s control.

11.5. Money-Back Guarantee: Subject to the below conditions for eligibility, babyTEL offers a one-time 14-day Money-Back Guarantee for residential and small business plans, applicable to one primary line per account and or per customer, but not for additional or secondary lines or features. There is no Money-Back Guarantee on Enterprise VoicePath plans. Under the terms of this Money-Back Guarantee, babyTEL will refund actual payments made by the Customer, if any, for the activation fee, the first month of service for the primary line, Device rental fees, and shipping charges incurred in the first month of service. Any payment made by the Customer for the purchase of a Device, except for gateways, will also be fully refunded.

To be eligible for the Money-Back Guarantee, the user (i) must cancel the Service within 14 days of the initial Anniversary Date, (ii) the Device(s) must be returned within 14 days of the date of cancellation and (iii) must not have exceeded 250 minutes of usage. User remains responsible for any long distance charges, directory assistance and all other usage fees that are not eligible for refund. THIS MONEY-BACK GUARANTEE DOES NOT APPLY TO ACCOUNTS EXCEEDING 250 MINUTES OF USAGE AND SUCH ACCOUNTS ARE NOT ELIGIBLE FOR REFUND OF ANY OF THE CHARGES DESCRIBED HEREIN.

All returned Devices must be in original condition and packed in the original packaging with the UPC or bar code intact. All components, manuals and registration card(s) must be included. Devices must be returned with a valid return authorization number obtained from babyTEL Customer Care. To obtain a return authorization number, User must contact service@babytel.net. User is responsible for the cost and risk of return shipping of all Devices. THE MONEY BACK GUARANTEE WILL NOT BE HONORED IF USER FAILS TO MEET ALL SUCH REQUIREMENTS.

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

• such new service provider is able to accept such number;
• your account has been properly disconnected;
• your account is completely current, including payment for all charges and applicable disconnection fees; and
• you request the transfer in writing at the same time you notify us to disconnect your account.

12. Warranty, Limitations Of Liability And Indemnification

12.1. Warranties: babyTEL and its affiliates, directors, employees and agents provide the Service “AS IS” and make no warranties of any kind, express or implied, including but not limited to, (i) any implied warranties of merchantability or fitness for a particular purpose of the Service or the Device, (ii) warrant that the Service will operate error-free or without failure, delay, interruption, degradation of voice quality or loss of content, data or information. Neither babyTEL, its affiliated and related companies, divisions and our and their respective employees, officers, directors, shareholders, agents, partners, suppliers, content provider nor any other third party service who furnishes services or products to the Customer in connection with this Agreement or the Service will be liable for unauthorized access to babyTEL’s or the Customer’s transmission facilities or premises equipment or for unauthorized access to, or alteration, theft or destruction of, the 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 babyTEL’s or its service provider’s or vendors’ negligence. Statements and descriptions concerning the Service or Device, if any, by babyTEL or babyTEL’s agents or installers are informational and are not given as a warranty or representation of any kind.

12.2. Limitation of Liability: The parties agree that under no circumstances shall babyTEL, its affiliated and related companies, divisions and our and their respective employees, officers, directors, shareholders, agents, partners, suppliers, content provider, or any other third party service who furnishes services or products to the Customer in connection with this Agreement or the Service be liable to you or any other person, for any actual direct, indirect, consequential, special, incidental, punitive or exemplary damages or for any other damages whatsoever, including but not limited to loss of data, loss of revenue or profits of any kind or nature, regardless of the foreseeability thereof arising out of the provision of the Service or in any way arising out of this Agreement whether resulting from (i) the Customer’s use of Service (ii) mistakes, omissions, interruptions, loss, theft or deletions of files, errors, defects, delays in operation or transmission, or (iii) any failure the Service or of performance of this Agreement by babyTEL or arising out of or in connection with the use of or inability to use the Service, including inability to complete 9-1-1 dialing or to access prompt and appropriate emergency service personnel through the Service; degradation of quality of Service, failure of Device, mistakes, omissions, interruptions, or defects in equipment, force majeure events such as (but not limited to) acts of god, strikes; fire, war, riot, government actions, that is caused by any reason. The limitations set forth herein apply to claims founded in breach of contract, breach of warranty, products liability, extra-contractual liability and any and all other theories of liability and apply whether or not babyTEL was informed of the likelihood of any particular type of damages.

12.3. Indemnification: The Customer agrees to defend, indemnify, and hold harmless babyTEL, its affiliated and related companies, divisions and our and their respective employees, officers, directors, shareholders, agents, partners, suppliers, content provider and any other third party service who furnishes services or products to the 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, the Customer and any third party or user of Customer’s Service (whether or not such use of the Service was expressly or impliedly permitted by the Customer), relating to this Agreement or by violation of this Agreement, the Device, the Services including but not limited to inability to complete 9-1-1 dialing or to access prompt and appropriate emergency service personnel through the Service. This paragraph shall survive termination of this Agreement and of the Service.

12.4. 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.

12.5. Content: You are liable for any and all content transmitted by or to you or users of the Services. You shall assure that your use of the Services and content will at all times comply with all applicable laws, regulations and written and electronic instructions for use.

12.6. Maximum Liability: In the event that a final court of competent jurisdiction shall hold babyTEL liable despite the foregoing limitation of liability, babyTEL’s maximum and sole liability for damages to you for any cause whatsoever regardless of form of action or basis of claims, shall not exceed an amount equal to the Service charges paid by you for the Service during the one (1) month period preceding the event which caused the damages or injury.

13. Governing Law / Resolution Of Disputes

13.1. Governing Law: This agreement and performance hereunder shall be governed by and construed solely in accordance with the laws in force in the province of Quebec, Canada, and only the courts therein shall be competent to hear any dispute.

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 alleged by the Customer must be filed by the Customer (or the Customer’s attorneys) within one (1) year after such claim or cause of action arose or the Customer shall be forever barred with respect to such claim or cause of action.

13.2. Non-Transferable: This Agreement is not transferable by you in any way and may not be assigned or delegated by you to any third party. This includes, without limitation, that neither you nor any other person on your behalf may: (a) resell, rent, lease, timeshare, sublicense, or otherwise transfer all or any portion of the Services to any other party; nor (b) make commercial use of the Services except for Small Business or Enterprise VoicePath users as expressly permitted by babyTEL. The restrictions in this section 13.2 shall not apply to babyTEL.

13.3. No Waiver: The delay, waiver or failure of babyTEL to exercise or enforce, in any respect, any right or benefit provided for herein or permitted under law shall not be deemed a delay, waiver or failure by babyTEL with respect to any additional, prior or subsequent right or remedy under this Agreement or the law.

13.4. Entire Agreement: The user acknowledges that he/she/it has read this Agreement, the rates posted on the babyTEL web site and all published specific and current provisions relating to a promotion or special offer, understands them, and agrees to be bound by all of the terms hereof and further agrees that this is the complete and exclusive statement of the agreement between the parties superseding and canceling all prior proposals, understandings and agreements, oral, electronic or written, between the parties.

babyTEL reserves the right to change the terms and conditions of this Agreement from time to time, including but not limited to rate changes, amendments to provisions relating to a promotion or special offer, enhance, add to, delete from, modify, or discontinue all or any portion of the Service or any function or feature thereof in any manner at its sole discretion, with or without notice to, or obligation or liability of any kind to you or to any other person. The then- current terms and conditions for use of the Service and the selected Plan(s) as set forth on the babyTEL web site (www.babytel.net), from time to time, and all published, specific and current provisions relating to a promotion or special offer, are an integral part of this Agreement and are incorporated into this Agreement by this reference to them.

13.5. Notice of any changes to the “Terms of Use” shall be considered given to and received by the Customer and effective on the date posted on the babyTEL web site. Such changes shall be binding on the Customer. No amendments to this Agreement or to the terms and conditions on the babyTEL web site shall be considered valid if made unilaterally by the Customer.

13.6. Severability: If any provision of the Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, the parties nevertheless a The user acknowledges that he/she/it has read this Agreement, the rates posted on the babyTEL web site and all published specific and current provisions relating to a promotion or special offer, understands them, and agrees to be bound by all of the terms hereof and further agrees that this is the complete and exclusive statement of the agreement between the parties superseding and canceling all prior proposals, understandings and agreements, oral, electronic or written, between the parties.

babyTEL reserves the right to change the terms and conditions of this Agreement from time to time, including but not limited to rate changes, amendments to provisions relating to a promotion or special offer, enhance, add to, delete from, modify, or discontinue all or any portion of the Service or any function or feature thereof in any manner at its sole discretion, with or without notice to, or obligation or liability of any kind to you or to any other person. The then- current terms and conditions for use of the Service and the selected Plan(s) as set forth on the babyTEL web site (www.babytel.net), from time to time, and all published, specific and current provisions relating to a promotion or special offer, are an integral part of this Agreement and are incorporated into this Agreement by this reference to them.gree 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.

13.7. Authorized Representative: The person or party who authorizes the subscription to the Service or use of the Device or the Service or use of the babyTEL web site or has clicked ” I Accept” at the bottom of this Agreement shall be deemed to be a lawful representative of the Customer with requisite authority sufficient to bind the Customer.

13.8. Successors: This Agreement shall bind and enure in favour of the Customer and babyTEL as well as each of their respective heirs, successors, assigns, executors, trustees and legal representatives.

13.9. Click Agreement: If you agree with and accept each and every aforementioned term and condition click “I Accept” below which will indicate your binding commitment to respect this Agreement and to subscribe for the Service inclusive of the selected Plan you have identified above. Your use of the Service shall be in lieu of you clicking “I Accept”.