Terms & Conditions

Windstream Phones at Home Protection Plan Terms and Conditions Please read these terms and conditions carefully and retain them for your records. This is an optional service. The terms and conditions set forth herein constitute an agreement between your Windstream service provider ("Windstream") and you (referred to herein as "you" or "Subscriber"), as the subscriber to the Windstream Phones At Home Protection Plan ("Plan") for the services described herein. Benchmark Holdings, Inc., 3110 Crossing Park Rd., Norcross, GA 30071, administers this Plan on behalf of Windstream. Your initial payment of charges for the Plan constitutes your acknowledgment of and agreement to these terms and conditions. Windstream will provide to you the Plan subject to the following terms and conditions: 1. Repair or Replacement of Sets. The Plan only applies to one or two line touch-tone telephones compatible with an Windstream analog residential line and caller ID adjuncts that are compatible with such telephones (collectively, the "Equipment). Under the Plan, in the event the Equipment malfunction or experiences a failure of operation as a result of normal use and/or power surges, Windstream will repair or replace the applicable Equipment owned by you and registered by Windstream while you are an active subscriber subject to the terms and conditions herein. In the event that any Equipment covered under the Plan is beyond repair, or if the cost of repair would exceed the retail value of a replacement set, in each instance in Windstream's sole discretion, Windstream will replace such Equipment with an Windstream compatible set comparable in kind and quality, in all material respects, subject to the terms and conditions herein. Notwithstanding anything else to the contrary, Windstream makes no representation or warranty that any replacement will be identical or substantially identical to the Equipment submitted for repair or replacement. Windstream will not repair or replace any answering device, rather Windstream will provide Subscriber Windstream's VOICE MAIL Service following a request from you which will be provided at no cost for a sixty (60) day period in accordance with the terms and conditions set forth in Windstream's applicable tariff. At the end of this sixty (60) day period, you may continue to use the Service, at the then current monthly charge, or discontinue the Service by calling Windstream. If you fail to call Windstream and discontinue the Service, you will be deemed to have agreed to continue to use the Service at the then current monthly charge. Equipment covered under the Plan that is to be replaced in accordance with the terms and conditions herein shall be replaced with a new set or a pre-owned, refurbished set in Windstream's sole discretion. Repaired or replaced sets shall be deemed to be Equipment under the Plan and will be registered automatically as one of the sets to be covered under this Plan. During the 90 day period following any repair or replacement, any repair or replacement required to such repaired or replaced Equipment would not be charged against the Subscriber's annual claims limitation described in paragraph 2 below. Windstream has the right to receive the benefit of any full or partial manufacturer's warranty or other ancillary coverage remaining on any Equipment covered under this Plan. 2. Annual Value Limitation on Claims. Under the Plan, you are limited to repairs and/or replacements equal to $400 in total retail value, in the aggregate, for claims processed in any twelve-month period. The retail value of any replacement hereunder shall be equal to the market retail value of the replacement Equipment, as determined by Windstream. The retail value of any repairs hereunder shall be equal to the market retail value of parts and labor charges for repairing the Equipment, as determined in Windstream's sole discretion, provided that the retail value for any repair shall not exceed the total retail value of a comparable replacement set. Windstream will provide such values on a per repair/replacement basis upon completion of each repair or replacement under this Plan. 3. Payment. You agree to pay monthly charges for this Plan as such charges may appear on your Windstream telephone bill by the due date set forth on such bill. The monthly charges for this Plan were provided to you at the time you subscribed to the Plan. You may contact your Windstream representative for the current applicable rate for the Plan. Because this Plan is optional, non-payment of charges for this Plan will not cause termination or denial of your regular telephone service. Non-payment will, however, result in cancellation of the Plan and application of a late payment charge on any delinquent charges for the Plan at the rate imposed by Windstream for other Windstream charges as set forth in applicable tariffs. 4. Exclusions from Coverage. Notwithstanding anything else to the contrary, this Plan does not cover any of the following and neither Windstream nor any of its Affiliates or any of their respective officers, directors, employees, subcontractors or agents shall have any liability or obligation with respect thereto: 1. problems caused by abuse, misuse, improper installation, water damage or customer negligence; 2. pre-existing conditions at the time of your subscription to the Plan; 3. acts of God or other Force Majeure events including, but not limited to, floods, fires, terrorist acts, and the like, except that damage due to power surge is covered under this Plan; 4. problems resulting from a Manufacturing Defect, which is defined as a malfunction or limitation of functionality that is a result of the original manufacturer's design plan or manufacturing process (the existence of a Manufacturing Defect shall be determined solely by Windstream); 5. problems resulting from the manufacturer's failure to design Equipment for year 2000 compliance; 6. decorative telephone sets (e.g., football phones); 7. telephone accessories, including, without limitation, such as headsets, cords, equipment designed to be used by the physically or hearing impaired, and the like; 8. routine maintenance and consumable items, such as batteries; 9. rotary telephones; and 10. answering devices of any type; and 11. telephones with 3 or more lines or PBX or Key systems. 5. Coverage Under the Plan. This Plan is available only to end user subscribers of Windstream residential telephone service and is offered on a per household or residence address basis. The Plan will become effective and billing will commence upon Subscriber's subscription to the Plan; provided, however, that pre-existing conditions are not covered and no claims will be accepted within the first thirty (30) days following such subscription. However, the Subscriber will have coverage provided, at no cost, from the date of cancellation through what would have been the renewal date plus an additional thirty (30) days. In the event the Subscriber transfers its Windstream landline telephone service to another location within Windstream's territory, there will be no lapse in coverage. Charges for the Plan are billed on the monthly billing after sign-up date and monthly thereafter in arrears. 6. Term and Termination. This Plan is provided on a month-to-month basis and can be canceled by the Subscriber or Windstream upon 30 days advance written notice to the other. Upon any termination or cancellation, coverage under the Plan will continue for thirty days following the next renewal date as if the Plan had not been cancelled. 7. Registration. The Subscriber will be responsible for completing the Plan registration form to register the Subscriber's Equipment to be covered under this Plan and returning the form to the designated reply address or going online and performing the registration at a website specified on the Plan registration form. Failure to complete and return the registration form or failure to perform the online registration may result in a delay in coverage, as coverage will be provided only on the Subscriber's registered Equipment. Changes and/or updates to the Subscriber's coverage registration form can be made by submission of a replacement registration form at any time either by mail or through the Internet, in each case at the applicable address designated by Windstream. The Subscriber may call the Windstream business office to obtain additional registration forms or to obtain the appropriate address. 8. Claims Process. In the event any Equipment covered under the Plan malfunctions or experiences a failure of operation as a result of normal use and/or power surges, the Subscriber may, 30 days after subscription to this plan, file a claim either, via the Internet by telephone at 1-866-672-3160 (8:30 AM to 12AM, Eastern, Monday through Friday, and from 8:30 AM to 2 PM, Eastern, on Saturdays, excluding national holidays), or by mail at the address specified on the registration form. At Windstream's sole discretion, if any Equipment is to be replaced, it will be shipped directly to the Subscriber's billing address along with a return kit and return postage for the defective Equipment. If the Subscriber fails to return the defective Equipment, as and when required, the Subscriber will be billed for the cost of the replacement Equipment. At Windstream's sole discretion, if any Equipment is to be repaired, a prepaid shipping label and shipping instructions will be sent to Subscriber within approximately four to five business days. If the Subscriber fails to register any Equipment prior to reporting a claim under the Plan, there may be a delay in processing the claim. 9. Changes to the Plan. Windstream may change the monthly charge for the Plan, the administration of the Plan or these terms and conditions from time to time upon thirty (30) days written notice to the Subscriber. Such notice may be provided in a bill insert, as a message printed on the Windstream bill, in a separate mailing, or by any other reasonable method at Windstream's discretion. Payment of monthly charges (modified or otherwise) after the thirtieth day after the notice contemplated by this paragraph constitutes your acknowledgment of and agreement to the applicable change and to be bound thereby. If the Subscriber does not accept the modified charges or terms of the Agreement, or the modified administration of the Plan, the Subscriber may cancel the Plan in accordance with these terms and conditions. 10. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE ENTIRE LIABILITY OF Windstream AND ITS AFFILIATES AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS OR AGENTS IN CONNECTION WITH, RESULTING FROM, OR ARISING UNDER THE PLAN OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR NEGLIGENCE, ERROR, MISTAKE OR OMMISSION REGARDING THE PLAN OR ANY REPAIR OR REPLACMENT OF EQUIPMENT THEREUNDER, SHALL BE LIMITED TO AN AMOUNT EQUAL TO CHARGES PAID BY YOU TO Windstream UNDER THE PLAN. "Affiliates" shall mean, with respect to any person, entity or enterprise, any other person, entity, or enterprise that, directly or indirectly, through one or more intermediaries, Controls, is controlled by, or is under common Control with such person, entity or enterprise. "Control" (including the correlative terms "Controls", "Controlled by", and "under common Control with") shall mean, with respect to any person, entity, or enterprise, the power, directly or indirectly, either to (i) vote a majority of the voting shares or other voting interests in such person, entity, or enterprise for the election of directors or other governing body of such person, entity, or enterprise or (ii) direct or cause the direction of the management and policies of such person, entity, or enterprise, whether through the ownership of voting securities, by contract, or otherwise. IN NO EVENT WILL Windstream OR ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS OR AGENTS BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES OR PROFITS, REGARDLESS OF WHETHER THEY WERE ADVISED OF THE POSSIBILTY THEREOF. SUBSCRIBER UNDERSTANDS THAT THE LIMITATIONS OF LIABILITY SET FORTH HEREIN WILL APPLY TO ANY CLAIM AGAINST Windstream AND/OR ANY OF ITS AFFILIATES AND/OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS OR AGENTS, INCLUDING, BUT NOT LIMITED TO CLAIMS BASED ON CONTRACT VIOLATIONS, TORTS (SUCH AS NEGLIGENCE) OR STRICT LIABILITY OR RIGHTS ARISING FROM STATUTORY ENACTMENT. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 11. Force Majeure. Windstream shall not be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure is caused by fire, flood, explosion, war, terrorist act, strike, embargo, government requirement, regulatory agency requirement, civil or military authority, act of God, or other similar causes beyond Windstream's control ("condition"). If any such condition occurs, Windstream may elect to terminate this Agreement and the Plan immediately without notice. 12. Abuse of the Plan. This Plan is for the Subscriber's use only and may not be assigned. Equipment owned by any person, entity or enterprise other than the Subscriber may not be registered under the Plan and is not covered Subscriber's Plan. Any abuse of the Plan by the Subscriber, including but not limited to, seeking repair or replacement of a Equipment not belonging to Subscriber, may result in termination of the Plan without notice. 13. Non-waiver. No failure or delay by Windstream in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege hereunder. 14. Disclaimer of Warranties. Windstream MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THIS AGREEMENT OR THE PLAN, INCLUDING, WITHOUT LMIITATION, ANY REPAIR OR REPLACEMENT SERVICES PERFORMED IN CONNECTION WITH THE PLAN, AND EXPRESSLY DISCLAIMS ALL IMPLIED OR EXPRESS WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NONINFRINGEMENT. 15. Choice of Law. This agreement shall be governed by and interpreted according to the laws of Delaware, without regard to its conflicts of law principles 16. Entire Agreement. This agreement (and the other terms and conditions referenced herein) constitutes the entire agreement and understanding between Windstream and Subscriber with respect to the subject matter hereof and supersedes any other verbal or written agreements or understandings between Windstream and Subscriber with respect to the subject matter hereof. 17. Headings. The headings contained in this agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this agreement. 18. Severability. In the event that any provision of this agreement shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this agreement shall not in any way be affected or impaired thereby. 19. Arbitration. Any dispute arising out of this agreement or relating to the Plan must be settled by arbitration administered by the American Arbitration Association. Each party will bear the cost of preparing and prosecuting its case. The arbitrator has no power or authority to alter or modify the terms and conditions set forth herein, including, but not limited to, the limitations of liability set forth in Section 10. All claims must be arbitrated individually, and there will be no consolidation or class treatment of any claims. This provision is subject to the United States Arbitration Act. 20. Insurance. The Windstream Phone at Home Protection Plan is secured by a contractual liability policy provided by Westchester Fire Insurance Company, 4550 Green Parkway, Suite 220, Duluth, GA 30096 with phone number (888) 995-9907. A copy of this policy is available at Windstream and may be viewed by Subscriber upon request. To make a claim regarding (1) any properly submitted and authorized claim not paid within sixty (60) days, or (2) any failure to refund any consideration due within sixty (60) days of the due date, you may contact the insurance company directly at the address and number cited above. IF YOU RESIDE IN ONE OF THE FOLLOWING STATES, THESE PROVISIONS APPLY TO YOU: Georgia: Windstream may not cancel this Plan except for fraud, material misrepresentation or non-payment by You; or if required to do so by any regulatory authority. Notice of such cancellation will be in writing and given at least thirty (30) days prior to cancellation. Cancellation will comply with Section 33-34-44 of the Code of Georgia. North Carolina: Windstream may not cancel this Plan except for nonpayment by You or for violation of any of the terms and conditions of this Plan. You understand that the purchase of this Plan is not required to purchase or obtain financing for the Product. Oklahoma: This Plan is not issued by the manufacturer or wholesale company marketing the product covered by this Plan. This Plan will not be honored by such manufacturer or wholesale company. South Carolina: If You purchased this Plan in South Carolina, complaints or questions about this Plan may be directed to the South Carolina Department of Insurance, PO Box 100105, Columbia, SC 29202-3105, telephone number (803) 737-6180. Texas: If You purchased this Plan in Texas, unresolved complaints concerning a provider or questions concerning the registration of a service contract provider may be addressed to the Texas Department of Licensing and Regulation, PO Box 12157, Austin, TX 78711.