1. Agreement, Services and Programming
These terms and conditions (“Terms of Service”) set out the rights, obligations and limitations of Tbaytel (“us” or “we” or “our”) and you, the Customer for Tbaytel’s TV service you have chosen to subscribe to by entering into this Agreement (the “Service”). These Terms of Service with, to the extent permitted by applicable law. (a) your Tbaytel invoice for the Service and all terms listed therein; (b) all applicable Tbaytel service rules and policies referenced in these Terms of Service or to which you may be directed when you order or use the Service; (c) Tbaytel TV work orders and associated terms (“Work Orders”); and (d) all specific terms at any time attached to, or incorporated by reference into, these Terms of Service (“Documents”), form our agreement with you (“Agreement”). The Terms of Service will prevail to the extent of any conflict or inconsistency between the Documents and the Terms of Service. Neither you nor a Tbaytel sales or customer service representative, agent, dealer or employee may change this Agreement, and you may not rely on such changes. Customer is solely responsible for the use of the Service and Tbaytel Equipment (defined below) by him/her and all other users (“Users”) and shall (a) take all necessary measures to ensure that the Service and Tbaytel Equipment are used in accordance with this Agreement; and (b) be liable for all consequences resulting from any breach of this Agreement. Customer and all Users are sometimes called “you” in this Agreement.
“Programming” means, as the context requires, any or all of the Tbaytel TV Service, television programming, subscription programs, programming plans, PVR services, Pay Per View services, Video On Demand (“VOD”) services, Interactive Services, optional programming, and any other related services that Tbaytel or its affiliates provide to you from time to time. See tbaytel.net/tv for the list of current services, service descriptions, programming options and terms relevant to you and your Service.
Tbaytel will rent to you the Set Top Box (“STB”) identified to you as rented when you subscribe to the service and any additional rental STBs which you may add to your account from time to time (“Rented STBs”), other required equipment (Residential Gateway) and all other applicable accessories such as the remote control, either new or refurbished (collectively with the Rented STBs, “Rented Tbaytel Equipment”). You may also purchase Tbaytel STBs (“Owned STBs”) and other equipment and accessories (collectively with the Owned STBs, “Owned Equipment”) acceptable for use with the Service and may not need any Rented Tbaytel Equipment. Such approved Owned STBs and the Rented STBs are herein collectively called the “STBs” and the Rented Tbaytel Equipment and the Owned Equipment are herein collectively called the “Tbaytel Equipment”. All Tbaytel Equipment must be installed and activated by Tbaytel at the Service Address and once installed, Tbaytel Equipment may not be moved or otherwise displaced other than by a Tbaytel TV Installation Technician. Installation of Tbaytel Equipment is subject to applicable installation charges as set out in the Work Orders. You may activate up to a maximum of 4 STBs on your account at any time. The activation of any additional Rented STB(s) after the initial installation is subject to you paying the required additional monthly STB rental fee listed at tbaytel.net/tv. You understand and acknowledge that the Rented Tbaytel Equipment is required for the provision of the Service and your lease of the Rented Tbaytel Equipment is ancillary and incidental to Tbaytel’s provision to you of the Service.
Your right to receive the Service and view the Programming is granted only for STBs (whether initial or additional) situated at your Service Address that have been authorized by Tbaytel to receive such Programming. Tbaytel reserves the right to verify that the Service Address is located in Canada and that all active STBs on your account are located at the address listed on your account as your Service Address. If you are found to be in violation of this or any other provision or policy, Tbaytel may disconnect access to the Service immediately without notice to you. As a Customer, you are responsible for all Programming that is ordered for your STBs. If you have concerns about other persons ordering programming from your STBs without your authorization, it is recommended that you use the Parental Control / Parental Locking feature included in Tbaytel’s TV service. Using the Parental Control PIN will help prevent unauthorized programming orders.
2. Fees and Charges
The Service is provided in accordance with the monthly rates and installation fees identified to you upon placing your order for the Service. You shall pay in full all applicable rates, fees and charges, together with all applicable taxes, noted in this Agreement or identified to you when you purchase the Services and rent the Rented Tbaytel Equipment, or as otherwise identified to you by Tbaytel from time to time, all to the extent permitted by applicable law (“Charges”).
Unless otherwise set out on your Tbaytel invoice, Charges will commence on the date of the initial activation of the Service. Tbaytel will bill you monthly in advance, and you are liable for and shall pay Tbaytel when due, on a monthly basis, all invoiced Charges.
Tbaytel credits a payment to your account on the day it is received by our office. A charge will be applied for all payments and/or cheques made to Tbaytel that cannot be cleared by a financial institution or credit card company. A late payment charge of 2.5% per month (34.49% per annum) is applied to all accounts which have unpaid balances one month from the due date of the bill. Tbaytel may also bill you for any Charge up to 12 months from the date that Charge was incurred. If you question or dispute any Charge, you must do so within 90 days of the disputed invoice date, otherwise you will be deemed to accept all Charges. Unless otherwise set out on your invoice, no Charge disputed by you will be considered past due unless Tbaytel reasonably believes you are using the dispute to evade or delay payment.
Any promotional bundle fees, discounts, credits, rebates or other financial incentives you receive for any Service (“Promotional Plan”) will only apply for so long as you meet Tbaytel’s eligibility requirements.
Administrative charges, as set by Tbaytel from time to time to offset the additional processing costs, may, to the extent permitted by applicable law, be assessed against you for administrative or account activities including collection efforts due to your nonpayment or having a balance over your credit limit; returned or rejected payments; change of any personal identifier information; suspension, disconnection or restoring of the Service. All administrative fees charged to you will form part of the Charges owed by you to Tbaytel under this Agreement and you shall pay all such amounts.
You will ensure that your billing and payment information provided to Tbaytel (including name, mailing address, e-mail, residency address, telephone number, credit card and bank account) remains up-to-date and current at all times. If you provide a credit card, bank account, or other pre-authorized payment method to Tbaytel to make your monthly payments, you authorize Tbaytel to charge your credit card or bank account the amount of any outstanding amounts and all Charges, Late Payment Charges and other amounts due under this Agreement and this constitutes Tbaytel’s good and sufficient authority for so doing. You will be liable for your failure to pay any Charges billed to you by Tbaytel caused by your failure to provide Tbaytel with up-to-date information. Upon termination of the Service, you shall provide Tbaytel with a forwarding address for all final invoices or correspondence should your mailing address differ from that in your customer profile.
3. Amendments and Changes
To the extent not prohibited by applicable law, Tbaytel may change the Service and/or this Agreement, including changing applicable charges, fees or other obligations; or any feature, content, programming, structure or other aspect of the Service. Tbaytel also reserves the right to impose other rates, fees and charges at any time. To the extent required by applicable law, Tbaytel will give you not less than thirty (30) days notice in advance of the effective date of any amendment or change to this Agreement or of any material change to your Service by posting a notice on Tbaytel.net, mail, email, sending notice via short information message or other message on your monthly invoice, or any other notice method likely to come to your attention. To the extent permitted by applicable law, such notice shall set out the effective date of the amendment or change, the revisions being made to the Agreement or any other related agreement, if applicable, and your remedy in connection with such amendment or change as set out in the next sentence. Your sole remedy in the event you do not wish to accept such amendment or change shall be to refuse the amendment or change and cancel the Service (and terminate this Agreement). If you continue to use the Service and any Rented Tbaytel Equipment after any such amendment or change is effective, to the extent not prohibited by applicable law, you expressly agree that you (a) will be deemed to have accepted the amendment or change, with no additional written agreement or express acknowledgement required; (b) specifically waive all statutory requirements for notice and express acceptance of such amendment or change except for those provided in this section; and (c) will be responsible for the payment of all Charges associated with the Service and Rented Tbaytel Equipment.
4. Customer Termination
Notwithstanding the Consumer Cancellation Rights under the Ontario Consumer Protection Act, 2002, a customer may terminate the service at anytime upon notification of Tbaytel. The Customer shall remain liable for all charges for Service which has been provided by Tbaytel, as well as liable for the return of all Rented Tbaytel Equipment as described in Section 10. Notwithstanding the termination hereof, the Customer agrees to pay all charges owing to Tbaytel outstanding on the date of termination in accordance with this Agreement. Should it become necessary to commence collection proceedings to collect on this Agreement the Customer agrees to pay all costs, including reasonable lawyer’s fees, for said collection. All written notice to be given by the customer shall be made to Tbaytel, 1046 Lithium Drive, Thunder Bay, Ontario, P7B 6G3.
5. Service Suspension, Termination or Default
Tbaytel may without any liability and in its sole discretion (a) repossess and/or relocate Rented Tbaytel Equipment; (b) refuse to provide the Service to you, in whole or in part; or (c) stop or suspend the provision of any or all or any part of the Service to you, for cause, including if (A) Tbaytel would have to incur unanticipated, unaccounted for, unusual or unreasonable expenses; (B) you breach or fail to comply with any part of the Agreement, including failure to pay any Charges or other required amounts pursuant to this Agreement or you are late paying any deferred amounts under any payment arrangements with Tbaytel; or (C) your use of the Service or other services is fraudulent or inappropriate. To the extent permitted by applicable law, you remain obligated to pay for the Service during any suspension. Subject to applicable law, Tbaytel may terminate the Agreement for any reason whatsoever upon a minimum of 30 days prior written notice to you, including where Tbaytel ceases to offer a Service to which you subscribe. In the event you breach any term or condition of this Agreement or are bankrupt or insolvent, Tbaytel may (in its sole discretion), in addition to its other rights and remedies at law, equity or otherwise, as permitted by law and without any liability (a) immediately terminate the Service and the Agreement by written notice and specify a final payment date for all amounts that you owe (including applicable Termination Charges if the Agreement is terminated during the Initial Service Period) not earlier than 10 days (or such other date as permitted by law) from the date of the notice; (b) accelerate all Charges and other amounts under this Agreement as due and owing as of the date of termination; and (c) enter upon your premises and take immediate possession of, or require you to promptly return to Tbaytel, the Rented Tbaytel Equipment in accordance with Section 11.
6. Special Payment Terms and Deposits
In exceptional circumstances, Tbaytel may require you to pay the Charges on an interim basis, despite your monthly billing cycle, and you shall pay on or before the stipulated due date to avoid termination or suspension of your Service. Tbaytel may also require deposits from you at any time if you (a) have no credit history with Tbaytel and do not provide satisfactory credit information; (b) have an unsatisfactory credit rating with Tbaytel due to payment practices in the previous 2 years regarding any Tbaytel services; or (c) present an abnormal risk of loss. Tbaytel shall credit interest on customer cash deposits held by Tbaytel for the period during which the deposit is retained and the interest rate shall be the Canadian chartered bank deposit rate for non-chequable savings deposits as published in the most recent Bank of Canada Review, Schedule F1. When the Service is terminated or the conditions justifying the deposit are gone, Tbaytel will apply the deposit and any earned interest against the outstanding Charges, Late Payment Charges, or other amounts owing by you, and thereafter refund to you any balance of the deposit, plus interest, if any, earned. Tbaytel will require you to pay all past due charges and any costs which are reasonably incurred by Tbaytel as a result of the collection efforts on outstanding amounts before it reconnects your service.
7. Minimum System and Other Requirements
Throughout your subscription to the Service, you must (a) have and use Tbaytel Equipment currently supported by Tbaytel; and (b) always meet the minimum requirements established by Tbaytel including type and condition of equipment. Tbaytel cannot guarantee that the Service will be compatible with all system configurations. You are responsible for all access to all required systems and equipment, including the Tbaytel Equipment, and maintenance of security and privacy and all other risks involved in connection therewith.
8. Restrictions on Use of Service
You shall not:
(a) use the Service for anything other than your own personal use. You may not resell or remarket the Service, receive any charge or benefit for the use of the Service, or share or transfer the Service;
(b) use the Service or permit it to be used for a purpose or in a manner that is contrary to law, for any illegal or abusive purpose, including criminal offences, intellectual property infringement or interference with network operation, Tbaytel facilities or assets;
(c) use the Service or permit it to be used so as to prevent a fair and proportionate use by others;
(d) re-arrange, disconnect, remove, repair, modify or otherwise interfere with the Service, Tbaytel Equipment or Tbaytel facilities;
(e) attempt to receive the Service without paying the applicable fees and charges;
(f) use the Service in a manner which bypasses, or attempts to bypass, Tbaytel’s network;
(g) adapt, translate, modify, decompile, disassemble, reverse engineer or otherwise interfere with or defeat any software, applications or programs used in connection with the Service; or
(h) modify, alter, or deface any of the trademarks, service marks, or other intellectual property made available through the Service nor use any of the foregoing except for the purpose for which such intellectual property is made available to you through the Service.
9. Rented Tbaytel Equipment and Tbaytel Right to Enter Premises
All Rented Tbaytel Equipment and other materials and accessories provided by Tbaytel during installation will always remain Tbaytel’s property and no title therein or thereto will pass to you. You will (a) take reasonable care of the Rented Tbaytel Equipment and maintain same in good working condition, all in accordance with industry best practices and manufacturers’ expectations (“Good Condition”); (b) not sell, lease, mortgage, charge, transfer, assign, encumber or grant any right in or to the Rented Tbaytel Equipment; (c) not move or re-locate the Rented Tbaytel Equipment; and (d) not remove or alter any identification tags, markings or serial numbers located on the Rented Tbaytel Equipment. If you fail to comply with these obligations or act deliberately or negligently and cause loss, damages or theft to any Rented Tbaytel Equipment, you are liable and will pay Tbaytel for (a) loss of or damage to Rented Tbaytel Equipment located at your premises or under your control, including any cost of repair or replacement; and (b) disruptions or damages caused by your failure to do so, or caused by the assets, including damage or other effect on Tbaytel’s or other customer’s ability to receive the Service. At your cost, Tbaytel may take any action it considers necessary to deal with such effects, losses and damages. Tbaytel will provide maintenance and repairs to Rented Tbaytel Equipment as required due to normal wear and tear only. Additional charges may apply for maintenance and repair work performed at your request outside of regular working hours. In all cases, you are liable for all damage caused to Rented Tbaytel Equipment and facilities by you or by customer-provided equipment. You must immediately notify Tbaytel of any loss, theft, removal or damage of or to Rented Tbaytel Equipment by immediately calling Tbaytel at 684-4400 or 1-800-264-9501, but in no event more than 5 days after such event. You will be liable for unauthorized use of the Rented Tbaytel Equipment until such time as Tbaytel is properly notified. Tbaytel will not replace any lost or stolen Rented Tbaytel Equipment, unless expressly required by law. If Tbaytel is not required to replace the lost or stolen Rented Tbaytel Equipment, this Agreement will terminate with respect to such Rented Tbaytel Equipment following your notice to Tbaytel and Non-Return Charges pursuant to Section 11 may apply.
Any limited warranty agreements found in the user manual of any Rented STB do not apply to the Rented STB and do not form part of this Agreement.
Tbaytel's agents, contractors and employees may, at reasonable hours, enter premises on which service is or is to be provided, to install, inspect, repair and remove the Rented Tbaytel Equipment, or to maintain, protect, investigate, modify or improve the operation of the Service, or to inspect and perform necessary maintenance in cases of network-affecting disruptions involving customerprovided facilities. Prior to entering premises, Tbaytel must obtain permission from the applicant, customer or other responsible person. Entry is not subject to the above in cases of emergency or where entry is pursuant to a court order. Upon request, Tbaytel's agent, contractor or employee must show valid Tbaytel identification prior to entering premises.
10. Return of Equipment, Non-Return Charges and Replacement of Equipment
You will uninstall and return to Tbaytel all of the Rented Tbaytel Equipment, in Good Condition (reasonable and normal wear and tear excepted) within 15 days from (a) the termination (by you or Tbaytel) of the Agreement; (b) non-activation or deactivation of the Service; or (c) Tbaytel’s request. If you fail to return any of the Rented Tbaytel Equipment in Good Condition within 15 days, the replacement value of the non-returned Rented Tbaytel Equipment as determined by Tbaytel and any costs incurred by Tbaytel in seeking possession of the Rented Tbaytel Equipment, to the extent permitted by applicable law (“Non-Return Charges”) may be charged to your Tbaytel account without prejudice to Tbaytel’s rights under Section 6.
Upon any termination, Tbaytel may, in its sole discretion (a) request access to your premises to remove the Rented Tbaytel Equipment or any part thereof subject to a removal fee, in which case you will obtain and grant, at your cost, all authorizations, permits and approvals necessary for Tbaytel to access your premises for de-installation and removal; or (b) abandon and leave the Rented Tbaytel Equipment, or any part thereof, at your premises and you hereby expressly acknowledge that Tbaytel shall not be responsible therefor or for any costs or damages associated with de-installation or removal of the Rented Tbaytel Equipment unless caused by Tbaytel’s intentional fault, negligence or poor workmanship at the time of de-installation or removal, other than normal wear and tear.
During the Term, Tbaytel may, at its sole discretion, replace any part of the Rented Tbaytel Equipment with new or refurbished equipment of comparable functionality (“Replacement Equipment”). You acknowledge that, upon delivery to you of the Replacement Equipment, this Agreement will automatically and without any further act, thing or document (a) no longer apply and be at an end with respect to the Rented Tbaytel Equipment that is being replaced (“Replaced Equipment”); and (b) apply to the Replacement Equipment as if it were the original equipment rented hereunder, and all terms of this Agreement will apply to the Replacement Equipment. The term “Rented Tbaytel Equipment” hereunder will, in such circumstances, be deemed to refer to the Replacement Equipment in place of the Replaced Equipment.
11. Equipment Software Update
(a) THE TBAYTEL EQUIPMENT CONTAINS SOFTWARE THAT IS UNDER LICENSE TO OR OWNED BY TBAYTEL. YOUR LICENSE TO USE THIS SOFTWARE IS LIMITED TO RECEIVING AND VIEWING THE SERVICE AUTHORIZED BY TBAYTEL ONLY. IF TBAYTEL HAS REASONABLE GROUNDS TO BELIEVE THAT YOU ARE RECEIVING UNAUTHORIZED SERVICES OR USING THE SOFTWARE FOR ANY OTHER UNAUTHORIZED PURPOSE, IT RESERVES THE RIGHT TO MODIFY OR DISABLE THE SOFTWARE IN THE TBAYTEL EQUIPMENT OR TO OTHERWISE DISABLE THE TBAYTEL EQUIPMENT.
(b) IF THE SOFTWARE IS DISABLED OR MODIFIED, THE TBAYTEL EQUIPMENT MAY NOT FUNCTION PROPERLY. YOU MAY NOT MODIFY, TEST, REVERSE ENGINEER, DECOMPILE, TAMPER OR ACCESS THIS SOFTWARE FOR ANY REASON WHATSOEVER. RECEIVING SIGNALS WITHOUT AUTHORIZATION, INCLUDING FOR THE PURPOSE OF SHARING OR “TESTING,” IS THEFT AND MAY RESULT IN CRIMINAL CHARGES OR A CIVIL SUIT BEING BROUGHT AGAINST YOU.
(c) Tbaytel reserves the right, from time to time, to update or upgrade the software in the Tbaytel Equipment to ensure that the Tbaytel Equipment will remain compatible with and function properly with any technological advances or improvements made to the Services. In certain circumstances, it may be necessary to modify or remove some software features to introduce new features and to ensure the Tbaytel Equipment remains compatible with such technological advances or improvements.
12. Licence of Inside Wiring
Inside wiring beyond the demarcation point is the responsibility of you the Customer. You are responsible to ensure that the inside wire at your service address meets the requirements of Tbaytel to install and operate the Tbaytel Equipment to allow you to receive the Service. Tbaytel will install and maintain single-line wire at the request of the customer, subject to the terms and conditions of Section TB850-4 of Tbaytel’s General Tariff and Tbaytel’s Wire Care service respectively. You shall retain rights to any wiring inside your Service Address, whether or not it is installed by Tbaytel. You shall not modify, disturb, amend or otherwise compromise the inside wiring in any way that could affect or disrupt the integrity of the Service; doing so may result in an on-site service call by a Tbaytel TV Technician, at your cost, to restore the inside wire to its appropriate state. Tbaytel shall not in any way be responsible for the state or condition of the existing wiring, your use of the wiring and any resulting interference with, or any other performance issues pertaining to the Service.
13. Downgrading your Service Plan
You may downgrade your Service Plan for any reason at any time by notifying Tbaytel, if your account is in good standing with all payments up to date. Tbaytel will deactivate the Service Plan you request to be terminated and activate the new Service Plan effective as of the next billing cycle date after receiving your notice. Since you would have paid for the Service Plan you are terminating or downgrading in advance up to the next billing cycle date, no credit or refund will be payable in respect of such terminated or downgraded Service Plan. In addition, no deactivation fee will be payable in such case.
14. Furnishing of Programming by Tbaytel
(a) Programming availability. All Programming is provided on a “subject to availability” basis. Certain Programming transmitted by Tbaytel, including sports events, may be “blacked out” in your area of reception from time to time at the request of the programmer for copyright or other reasons. If you circumvent or attempt to circumvent any of these blackouts, you may be subject to legal action. Programming may also be subject to temporary interruption due to natural phenomena or causes outside of its control. Tbaytel will not refund charges or credit you for the blackout period or temporary interruptions. In addition and to the extent permitted by applicable law, TBAYTEL WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE WHICH YOU SUFFER AS A RESULT OF ANY SUCH BLACKOUT OR TEMPORARY INTERRUPTION. However, if Tbaytel causes a material interruption of Programming which is not related to such blackouts, natural phenomena or causes outside of its control, Tbaytel will provide a credit or refund, at your request, for the Programming interruption period. For greater certainty, no credit or refund will be provided for Programming interruptions resulting from Tbaytel disabling or modifying the software in a STB pursuant to this Agreement, or if Tbaytel can no longer provide any particular Programming for any reason.
(b) Private viewing. The right Tbaytel provides you to receive and view the Programming is for your private home viewing at the Service Address and you will not receive or view, or so attempt, any of the Programming outside of your private residence which you listed as your Service Address. You are only permitted to exhibit the Programming solely in your private residence, listed as your Service Address. The Programming may not be rebroadcast, transmitted or performed in any form, and no admission charged, or any other consideration received, by or for your benefit from any third party in return for allowing such third party to listen to or view any Programming provided by Tbaytel.
(c) Warning against piracy. It is against the law to receive the Programming, or any portion of the Service, without paying for it (unless expressly permitted to do so by Tbaytel). Doing so may result in civil or criminal penalty. Tbaytel also reserves the right to take any other action to prevent the reception of its Programming without payment to, or authorization by, Tbaytel, including the right to modify or disable the software in any STB.
(d) Additional Rules for Pay Per View (“PPV”) and Video On Demand Programming (“VOD”). Unless otherwise indicated by Tbaytel at the time you place your order for PPV or VOD Programming, all sales of PPV or VOD Programming are final. If Tbaytel is unable to provide any PPV or VOD Programming that you have ordered, Tbaytel will credit you the amount for that PPV or VOD Programming. To the extent permitted by applicable law, Tbaytel shall have no other liability for cancelled events or failure to provide any PPV or VOD Programming. Certain PPV or VOD Programming may only be ordered if you also subscribe to other prerequisite Programming. You shall indemnify and hold harmless Tbaytel from any claims, liabilities, losses or damages resulting from your use of PPV or VOD Programming in contravention of this Agreement.
15. Migration
Tbaytel may, in its sole discretion and without your consent, migrate you to other networks and platforms or change its suppliers, as and when it becomes necessary. Without limiting the generality of the foregoing, Tbaytel may effect such a migration or change in suppliers to maintain, upgrade or enhance the performance of the Service, the Tbaytel Equipment and/or other deliverables provided to you hereunder, to ensure continuity of the Service and the integrity of Tbaytel’s network, and/or to comply, as necessary, with manufacturers’ requirements. You expressly agree that any such migration or change does not constitute an amendment or material change to this Agreement, the Tbaytel Equipment or the Service.
16. Confidentiality of Customer Records; Personal and Credit Information
Unless a customer provides express consent or disclosure is pursuant to a legal power, all information kept by Tbaytel regarding the customer, other than the customer's name, address and listed telephone number, is confidential and may not be disclosed by Tbaytel to anyone other than:
a) the customer;
b) a person who, in the reasonable judgement of Tbaytel, is seeking the information as an agent of the customer;
c) another telephone company, provided the information is required for the efficient and cost-effective provision of telephone service and disclosure is made on a confidential basis with information to be used only for that purpose;
d) a company involved in supplying the customer with telephone or telephone directory related services, provided the information is required for that purpose and disclosure is made on a confidential basis with the information to be used only for that purpose;
e) an agent retained by Tbaytel to evaluate the customer’s creditworthiness or to collect the customer’s account, provided the information is required for and is to be used only for that purpose; or
f) a public authority or agent of a public authority, if in the reasonable judgement of Tbaytel, it appears that there is imminent danger to life or property, which could be avoided or minimized by disclosure of the information.
Express consent will be taken to be given by a customer where the customer provides; 1) written consent; 2) oral confirmation verified by an independent third party; 3) electronic confirmation through the use of a toll-free number; 4) electronic confirmation via the internet; 5) oral consent, where an audio recording of the consent is retained by the carrier; or 6) consent through other methods, as long as an objective documented record of customer consent is created by the customer or by an independent third party.
(c) By entering into this Agreement you consent to Tbaytel performing credit checks on you and obtaining, maintaining and using information about your credit history from a credit reporting agency, credit grantor or other Tbaytel affiliate to activate your services or assist in collection efforts, and disclosing your Tbaytel credit history to credit reporting agencies, credit grantors, collections agencies and other Tbaytel affiliates.
17. No Warranties, etc
To the extent permitted by applicable law, Tbaytel makes no warranties, representations, guarantees, claims or conditions of any nature whatsoever, expressed or implied, including any warranty, representation, guarantee, claim or condition of consistency, performance or availability of service in certain areas, buildings or weather; or fitness for a particular purpose, merchantability, title or noninfringement, with respect to any of the Tbaytel Equipment or the Service, and all warranties, representations, guarantees, claims and conditions, expressed and implied, are, to the extent permitted by applicable law, hereby excluded. The Service is not guaranteed to be error-free or uninterrupted and Tbaytel shall not be liable to you or any other person for any damages, whether direct, indirect, special, consequential, exemplary, incidental, or any kind or for any reason whatsoever, arising out of the Service, all to the extent permitted by applicable law. Simultaneous use of the Service and an Internet service at your Service Address may result in slower throughput speeds for your Internet service.
18. Limitation of Liability
TBAYTEL’S AND ITS PROVIDERS’ LIABILITY FOR NEGLIGENCE, BREACH OF CONTRACT, TORT OR OTHER CAUSES OF ACTION, INCLUDING FUNDAMENTAL BREACH, TO THE EXTENT PERMITTED BY APPLICABLE LAW IS LIMITED TO PAYMENT, UPON REQUEST, FOR ACTUAL AND DIRECT DAMAGES OF A MAXIMUM AMOUNT OF THE GREATER OF $20 AND AN AMOUNT EQUAL TO THE SERVICE FEES PAYABLE DURING ANY SERVICE OUTAGE. OTHER THAN THE FOREGOING PAYMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL TBAYTEL (OR ITS PROVIDERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, INCLUDING DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, ECONOMIC, EXEMPLARY OR PUNITIVE DAMAGES INCLUDING LOSS OF DATA, LOSS OF INCOME, LOSS OF PROFIT OR FAILURE TO REALIZE EXPECTED SAVINGS ARISING DIRECTLY OR INDIRECTLY FROM TBAYTEL’S (OR ITS PROVIDERS’) NEGLIGENCE OR BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH OR OTHERWISE).
Without limiting the generality of the foregoing, Tbaytel is not liable for (a) any act or omission of a telecommunications carrier whose facilities are used in establishing connections to points which Tbaytel does not directly serve; (b) defamation or copyright infringement arising from material transmitted or received over Tbaytel’s facilities; or (c) infringement of patents arising from combining or using customer-provided facilities with Tbaytel’s facilities. The limitations of liability set out above do not apply to damages resulting from physical injuries, death or damage to your premises or other property wholly caused by Tbaytel’s negligence.
19. Indemnity
TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU SHALL INDEMNIFY AND HOLD TBAYTEL HARMLESS FROM AND AGAINST ANY LOSS OR DAMAGE TO ANY PERSON, TBAYTEL EQUIPMENT AND/OR PROPERTY ON WHICH TBAYTEL EQUIPMENT IS LOCATED AND FROM ALL CLAIMS, LOSSES, INJURIES, TAXES, LIABILITIES, EXPENSES AND COSTS RELATED TO THE INSTALLATION, REMOVAL, USE, MAINTENANCE OR CONDITION OF THE TBAYTEL EQUIPMENT, RENTAL OF THE RENTED TBAYTEL EQUIPMENT, TRANSFER OF EQUIPMENT TO YOU, USE OF THE SERVICE, OR YOUR TERMINATION OF OR DEFAULT UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN YOU AND TBAYTEL.
20. General
Tbaytel is a federally-regulated undertaking and as such this Agreement, including all matters relating to its validity, construction, performance and enforcement, shall be governed by applicable federal laws and regulations of Canada and only those laws and regulations of the province in which your designated billing address is located, that are applicable to it. This Agreement is subject to amendment, modification or termination if required by such laws or regulations. If any provision in this Agreement is declared to be invalid or in conflict with any such law or regulation, that provision may be deleted or modified, without affecting the validity of its other provisions. To the extent permitted by applicable law, this Agreement including the Documents, as amended, constitute the entire agreement between you and Tbaytel and supersedes all prior agreements, written or oral, with respect to the same subject matter. Except as expressly stated herein, this Agreement cannot be modified or amended by waiver, course of dealing or otherwise. Tbaytel may transfer or assign all or part of this Agreement including any rights in accounts receivable at any time without prior notice or consent, but Customer may not assign or transfer this Agreement, its account or any rights to the Service or Rented Tbaytel Equipment without Tbaytel’s prior written consent. To the extent permitted by applicable law, your use of the Service and/or Rented Tbaytel Equipment represents evidence that you accept and agree with the terms and conditions of this Agreement. Tbaytel is not responsible for failing to meet obligations due to causes beyond its reasonable control, including all force majeure events, including any work stoppage, labour disputes, strikes and acts of God and/or nature. The word “including” means including without limitation. Tbaytel is entitled to and does rely upon the authority of the person holding itself out or acting as the Customer or an authorized representative of the Customer and agreeing to and/or accepting the Agreement and purchasing the Service and/or renting the Rented Tbaytel Equipment. Tbaytel may deliver the Service and/or the Rented Tbaytel Equipment to you by an agent, subcontractor, a third party provider or supplier, and all such persons are included in the defined term “Tbaytel” as used in the Agreement. Any document sent under this Agreement and any demand for payment will be conclusively considered to have been received by you (a) when Tbaytel delivers the documents or demand to you; or (b) on the 5th day after Tbaytel mails it to you, at the latest address Tbaytel has for you in its records. All trademarks, copyrights, brand concepts, names, logos and designs used by Tbaytel are intellectual property assets, registered or unregistered, owned or used under license by, Tbaytel or its affiliates. All are recognized as valuable assets of their respective owners and may not be displayed or used by you in any manner for commercial purposes or copied in any manner whatsoever for any purpose