3. General Rules and Regulations
3.1 UNDERTAKING OF THE COMPANY
3. 1.1 General
3.1.1.1
The services furnished herein are for the transmission and reception
of voice, data and other types of communications. Services provided pursuant
to these Terms and Conditions may be utilized only for the transmission of
communications by Customers consistent with the terms of these Terms and Conditions,
and the rules and regulations of the Federal Communications Commission.
3.1.1.2
Subject to unavoidable network interruptions, the Company shall endeavor
to provide services and facilities 24 hours a day, 7 days a week.
3. 1.2 Availability
3.1.2.1
Service is offered subject to the availability of the necessary facilities
and/or equipment of the Company and/or the local exchange carrier serving
the customer. The Company reserves the right to provide services to and from
locations where the necessary facilities and/or equipment are available.
3.1.2.2
The Company reserves the right to suspend service or delay service
installation until sufficient network facilities are available to meet the
anticipated traffic demand, or terminate a service request with a full refund
of any charges billed to the Customer if satisfactory arrangements cannot
be concluded within what the Company determines to be a reasonable amount
of time.
3.2 USE OF SERVICE
3.2.1
Services furnished by the Company may not be used for any unlawful purpose.
3.2.2
No restrictions apply on sharing or resale of services. The Customer
remains liable for all obligations under these Terms and Conditions notwithstanding
such sharing or resale and regardless of the Company's knowledge of same.
3.2.3
Use of the services herein in a manner that could interfere with the
services provided to other Customers, harm the facilities of the Company or
others is prohibited.
3.2.4
In the event that the Company determines, based upon its sole judgment,
that there is fraudulent use of either the services furnished by the Company
or the Company's network, the Company will without liability to the Customer
discontinue service and/or seek legal recourse to recover from the Customer
all costs involved in enforcement of this provision.
3.2.4.1
Service may be discontinued by the Company, without notice to the
Customer, by blocking traffic to or from certain cities, or NXX exchanges,
or by blocking calls using certain Customer authorization codes, such as calling
card codes, which the Company deems, in its sole judgment, is necessary to
take such action to prevent unlawful use of its services. The Company will
restore service as soon as it can be provided without undue risk.
3.2.4.2
Without incurring any liability, the Company may discontinue the furnishing
of service(s) to a Customer immediately and without notice if the Company
deems, in its sole judgment, that such action is necessary to prevent or protect
against fraud or to otherwise protect its personnel, agents, facilities or
services.
3.2.5
The Company may, but is not required to, advise the Customer of abnormal
calling patterns or other possible unauthorized use of facilities or calling
cards assigned to the Customer. Additionally, the Company may, but is not
required to, block calls on authorization codes which the Company believes
to be unauthorized or fraudulent.
3.2.6
If a Customer utilizes a dedicated access line between the Customer's
premises and the Company's service office for the origination or termination
or calls, the Customer is responsible for payment of all charges for usage
over that access line, including any usage which may be fraudulent or unauthorized.
3.2.7
The use and restoration of service shall be in accordance with Part
64, Subpart D of the Federal Communications Commission's Rules.
3.2.8
With the use of the Company authorization codes the Customer agrees
to pay the Company all charges incurred as a result of any delegation of authority
whether authorized or unauthorized resulting in the use of its Company authorization
codes.
3.3 OBLIGATIONS OF THE COMPANY
3.3.1 Liability
Except as provided in this Section, the Company's sole liability for any claim,
loss, expense or damages of any kind, whether direct, indirect, special or
consequential, arising from, or in any way attributable to, acts or omissions
of the Company relating to the installation, provision, termination, maintenance,
repair, restoration, or billing of any service, feature or option available
under these Terms and Conditions shall not exceed an amount equal to the monthly
recurring charge to the Customer for one (1) month, if any, or as otherwise
set forth in the outage credit provisions of these Terms and Conditions provided,
however, that:
3.3.1.1
The Company's liability for its willful misconduct is not limited
by these Terms and Conditions.
3.3.1.2
The Company is not liable for any failure of facilities or performance
of services due to causes beyond its control, including, but not limited to,
civil disorder, fire, flood, storm or other natural or man-made disasters
or elements, labor problems or regulations issued by or action taken by any
government agency having jurisdiction over the Company or its services or
equipment.
3.3.1.3 The Company shall have no liability to any person or entity other
than its Customer.
3.3.1.4
The Company shall not be liable for, and shall be fully indemnified
and held harmless by the Customer against the following:
a. Any claim, loss, expense or damage (including, but not limited to, reasonable
attorney' s fees and expenses) for engaging in a criminal enterprise, defamation,
liable, slander, invasion of privacy, infringement of copyright or patent,
arising from, or in connection with, the material, data, information, or other
content transmitted over the services or facilities furnished by the Company.
b. Any claim, loss, expense or damage (including, but not limited to reasonable
attorney's fees and expenses) for any act or omission of the Customer or its
agents and contractors, or due to the failure of Customer provided equipment,
facilities, systems or services.
c. Any claim, loss, expense or damage (including, but not limited to, reasonable
attorney's fees and expenses) for personal injury or death of any person caused
directly or indirectly by the installation, maintenance, location, condition,
operation, failure, presence, use or removal of equipment or wiring provided
by the Company, if not caused by negligence of the Company; and/or
d. Any use by the Customer of the Company's products or services which use
has been restricted or limited by action of a government agency having jurisdiction
over the Customer, the Company or its products or services.
3.3.1.5
All or a portion of the service provided pursuant to these Terms and
Conditions may be provided over facilities of third parties, and the Company
shall not be liable to the Customer or any other person, firm or entity in
any respect whatsoever arising out of errors or defects caused by such third
parties.
3.3.1.6
Where any claim arises out of the Company's acting as a Resp. Org.
or where the Company's services are not made available on the date committed
to the Customer, or cannot otherwise be made available after the Company's
acceptance of the Customer's order, or is provided with a number(s) other
than the one(s) committed by the Company to the Customer, or the number(s)
is not included in the Directory Assistance or is included in an incorrect
form, or Vertical Features are not obtained or are obtained in error, and
any such failure(s) is due solely to the negligence of the Company, in such
case the Company's liability, if any, is limited to the lesser of (a) the
actual monetary damages incurred and proved by the Customer as the direct
result of such failure(s), or (b) the sum of $1,000.00.
3.3.1.7
The Company shall not be liable for the use, misuse or abuse of a
Customer's service by third parties, including, without limitation, the Customer's
employees or members of the public who dial the Customer's telephone number
in error. Compensation for any injury the Customer may suffer due to the fault
of others must be sought from such other parties.
3.3.1.8
Not withstanding Section 3.3.1.5, in the event that the Company causes
the misrouting of calls, the Company's sole liability shall be to provide
a credit equal to the charges for the affected calls.
3.3.1.9
The Company reserves the right to immediately suspend or cancel without
advance written notice and without any liability whatsoever, the provision
of any service(s) to any Customer if the Company determines in its sole discretion
that the Customer is using the service(s) to make or permit any telephone
facility under such Customer's control to be used for any purpose or activity,
including, but not limited to, any obscene, indecent or harassing purpose
or activity, prohibited by Section 223 of the Communications Act of 1934,
as amended, and 800 calls placed with the intent of gaining access to a Customer's
outbound calling services without authorization from the Customer.
3.3.1.10
The Company is not liable for any damages, including toll usage charges,
the Customer may incur as a result of the unauthorized use of its telephone
facilities. This unauthorized use of the Customer's facilities includes, but
is not limited to, the placement of calls from the Customer-provided equipment
which are transmitted or carried on the Company network or the network over
which its traffic is carried. The Company's customer service agents may work
with Customers to recommend possible solutions to reduce unauthorized use
of their facilities. However, the Company does not warrant or guarantee that
its recommendations will prevent all unauthorized use, and the Customer is
responsible for controlling access to, and use of, its own telephone facilities.
3.4 OBLIGATIONS OF THE CUSTOMER
3.4.1
The Customer shall be responsible for damages to the Company's facilities
or that of its network providers caused by the act or omission of the Customer,
its authorized users, officers, directors, employees, agents, contractors,
licensees or invitees or any person or entity who gains access to the service
of the customer through the negligence of the customer.
3.4.2
The Customer shall provide access to the Customer's or authorized user's
premises by the Company personnel for inspection, repair and/or removal of
any facilities or equipment of the Company on an unrestricted basis, 24 hours
a day, 7 days a week.
3.4.3
The Customer will guarantee the performance by his authorized user(s)
of all provisions and obligations under these Terms and Conditions. The Customer
will be liable for the acts or omissions of its authorized user(s) relative
to the compliance with the provision of these Terms and Conditions.
3.4.4
The Customer may not assign or transfer to a third party, whether by
operation of law or otherwise, the right to use the services provided under
these Terms and Conditions, provided however, that where there is not interruption
of use or relocation of the services, such assignment or transfer may be made
to the following:
a. Another Customer of the Company, provided that the assignee or transferee
assumes all accrued and unpaid obligations of the transferring Customer including,
but not limited to, all indebtedness for such services, and the unexpired
portion of the minimum period and the termination liability applicable to
such services if any; or
b. A court-appointed receiver, trustee or other person acting pursuant to
the laws of bankruptcy, receivership, reorganization, insolvency, liquidation
or other similar proceedings, provided that the assignee or transferee assumes
all accrued and unpaid obligations of the transferring Customer including,
but not limped to, all indebtedness for such services, and the unexpired portion
of the minimum period and the termination liability applicable to such services,
if any.
If the Customer wishes to assign or transfer the right to use services provided
under these Terms and Conditions, written consent of the Company is required
prior to such assignment or transfer which consent may be granted or withheld
in the sole discretion of the Company. All regulations and conditions contained
in these Terms and Conditions shall apply to such assignee or transferee.
The assignment or transfer of services does not relieve or discharge the assignor
or transferor from remaining jointly and severally liable with the assignee
or transferee for any obligations existing at the time of the assignment or
transfer.
3.4.5
The Customer of the Company's 1+, 0+ (sent paid), calling card, and/or
800 Service is responsible for payment for all calls placed:
(a) via the Customer's local telephone service number(s);
(b) via dedicated access lines to the Company facilities and/or network;
(c) via the Customer's 800 Service number(s) either intentionally or mistakenly
placed;
(d) originated at the Customer's number(s);
(e) accepted at the Customer's number(s) (e.g. collect calls); and
(f) billed to the Customers number via third number billing.
This responsibility is not changed by virtue of any use, misuse, or abuse
of the Customer' s service, Customer provided systems, equipment, facilities
services interconnected to the Customer's local telephone service, 0+ (sent
paid), dedicated lines or 800 Service; who's use, misuse or abuse may be occasioned
by third parties, including, without limitation, the Customer's employees
and members of the public.
3.4.6
The Customer must obtain an adequate number of access lines for service
to handle its expected demand in order to prevent interference or impairment
of the service or any other service provided by the Company. The Company will
have the right to determine such adequacy giving due consideration to
(1) the total call volume;
(2) average call duration;
(3) time-of-day characteristics; and
(4) peak calling period.
The Company, without incurring any liability, may disconnect or refuse to
furnish Service to any Customer that fails to obtain an adequate number of
lines. In the case of disconnection's, the Customer will be notified in writing
in advance of the termination of service.
3.4.7
Any mistakes, accidents, omissions, interruptions, delays, errors or
defects in transmission or service which are caused or contributed to, directly
or indirectly, by an act or omission of the Customer, by others, through the
use of Customer-provided facilities or equipment, or through the use of facilities
or equipment furnished by any other person using the Customer's facilities
shall not result in the imposition of any liability upon the Company. The
Customer shall pay to the Company any reasonable costs, expenses, damages,
fees or penalties incurred by the Company as a result thereof, including the
costs of any local exchange company labor and materials. The Company shall
be indemnified, defended and held harmless by the Customer against any and
all claims, demands, causes of action and liability relating to services provided
pursuant to this agreement, including payment to the Company associated with
reasonable attorney's fees.
3.5 PAYMENT REGULATIONS
3.5.1
Service shall be provided and billed for on a monthly basis. Service
shall continue to be provided until 30 days after the Company's receipt of
a written request from the Customer for the disconnection of service, unless
other restrictions apply. Payment is to be made to the address designated
on the invoice or such other location as the Company may direct in writing
from time to time. In addition to the charges for the Company's services,
the Customer shall pay any applicable federal, state or local use, excise,
sales or privileges taxes resulting from the services furnished by the Company.
Such taxes shall not be counted toward the attainment of any volume or revenue
commitment and will not be discounted.
3.5.2
The Customer is responsible for payment of all charges for service(s)
furnished by the Company. This includes payment for calls or services (a)
originated at the Customer's number(s) whether authorized or not; (b) accepted
at the Customer's number(s) (e.g. 800 Service and collect calls); (c) billed
to the Customer's number via third number billing, a calling card, a company-assigned
authorization code, travel card number, or other special billing number; and/or
(d) incurred at the specific request of the Customer.
3.5.3
A Customer is responsible for payment for all calls placed to or via
the Customer's telephone number(s) This responsibility is not changed by virtue
of any use, misuse, or abuse of the Customer's service or Customer provided
systems, equipment, facilities or services interconnected to the Customer's
800 Service, whose use, misuse or abuse may be occasioned by third parties,
including, without limitation, the Customer's employees and members of the
public who dial the Customer's 800 number by mistake.
3.5.4
If notice of a dispute with respect to a charge is not received, in
writing, within 30 days after an invoice is rendered, such invoice shall be
deemed to be correct and binding upon the Customer. In instances of a dispute,
the Customer is required to pay the undisputed portion of the bill in its
entirety. Accounts not paid within 30 days from the due date stated on the
bill will be considered delinquent. Delinquent payments may result in the
imposition of a late fee which shall be imposed at the rate of 1.5% of the
unpaid balance per month or the maximum allowable rate under applicable state
law.
3.5.5
If a Customer accumulates more than $1,000 of undisputed delinquent
charges, the Company's Resp. Org. reserves the right not to honor that Customer's
request for a Resp. Org. change and the Company reserves the right not to
honor that Customer's request for a carrier change until such undisputed charges
are paid in full.
3.5.6
The Company may require applicants or Customers to provide information
pertaining to their financial ability to pay for service.
3.5.6.1
Applicants or Customers whose credit worthiness is not acceptable
to the Company, or is not a matter of general knowledge, may be denied service
or may be required to make, at any time, a deposit in an amount equaling up
to two months, actual or estimated, charges for the services provided. The
Company may increase the amount of any deposit previously required if, in
the Company's sole discretion, it is reasonably necessary under the circumstances.
3.5.6.2
In the case of a cash deposit, interest will be paid for the period
during which the deposit is held by the Company. After an initial thirty (30)
days, the deposit will accrue interest at the rate not to exceed eight (8)
percent per annum. If the Company, in its sole discretion, determines that
the Customer is not capable of satisfying its payment obligations, services
may be canceled by the Company upon written notice.
3.5.6.3
At the Company's option, such deposit may be refunded or credited
to the Customer at, or any time prior to, termination of service. The Customer
may elect to apply the deposit to future invoices or receive a payment of
the deposit amount. However, if any balance is outstanding on the Customer's
account at the time of cancellation, the Company reserves the right to apply
the Customer's deposit and accumulated interest against the Customer's unpaid
balance.
3.5.7
In the event the Company incurs fees or expenses, including attorney's
fees, court costs, costs of investigation and related expenses in collecting,
or attempting to collect, any charges owed to the Company, the Customer will
be liable to the Company for the payment of all such fees and expenses reasonably
incurred.
3.5.8
In the event that a check or draft tendered by a Customer is returned,
a fee based on the policy of the local exchange telephone company which serves
the customer will apply. The fee will be assessed when a check or instrument
issued by a Customer is returned without payment for any reason whatsoever,
unless the return is a bank error, in which case documentary evidence is required
to waive the fee.
3.5.9
All stated charges in these Terms and Conditions are computed by the
Company exclusive of any federal, state, or local use, excise, gross receipts,
sales, or privilege taxes, duties, fees, or similar liabilities (other than
general income or property taxes) whether charged to or against the Company
or its Customer. Such taxes, fees, etc. shall be paid by the Customer in
addition to the charges stated in these Terms and Conditions. All such taxes,
duties and fees shall each be shown as a separate line item on the Customer's
monthly invoice.
3.5.10
In cases involving toll fraud, the Company may backbill for one and
one-half (1 1/2) years from the point when such fraud was detected and/or
quantified.
3.6 CREDIT ALLOWANCES
3.6.1 Interruption of Service
3.6.1.1
No credit will be allowed for relinquishing facilities in order to
perform routine maintenance.
3.6.1.2
Credit for failure of service or equipment will be allowed only when
such failure is caused by or occurs in facilities or equipment provided by
the Company. As used in these Terms and Conditions, all equipment, facilities
and/or services for which the Company renders a bill for payment are considered
provided by the Company whether or not the equipment, facilities and/or services
are owned and operated by the Company unless otherwise provided by the terms
of these Terms and Conditions.
3.6.1.3
No credit will be allowed for failures of service or equipment due
to Customer user-provided facilities or any act or omission of the Customer,
its authorized user(s), officers, directors, employees, agents, contractors,
licensees or invitees or any person or entity who gains access to the service
of the customer through the negligence of the customer.
3.6.1.4
Credit allowance time for failure of service or equipment starts when
the Customer notifies the Company of the failure or when the Company has actual
knowledge of the failure, and ceases when the service has been restored and
an attempt has been made to notify the Customer.
3.6.1.5
The Customer shall notify the Company of failures of service or equipment
and make reasonable attempts to ascertain whether the failure is caused by
Customer-provided equipment.
3.6.1.6
Only those portions of the service or equipment operation materially
interfered with will be credited.
3.6.2 Outage Credit
3.6.2.1
No credit shall be given for an interruption of less than 2 hours.
3.6.2.2
The Customer shall be credited for an interruption of 2 hours or more
at the rate of 1/360th of the monthly charge for the facilities affected for
each period of 2 hours or major fraction thereof that the interruption continues.
(A billing period has 30 days and service is provided 24 hours a day, 7 days
a week. Every month will have 720 hours.) Such a credit shall only be applied
to services priced by the Company on a monthly flat rated basis.
3.6.2.3
Where a minimum usage charge is applicable and the Customer fails
to meet a usage minimum, credit for the outage shall be applied against that
minimum equal to 1/360th of the monthly minimum charges associated with the
portion of service disabled for each period of 2 hours or major fraction thereof
that the interruption continues. Such a credit shall only be applied to services
priced by the Company on a monthly flat rated basis.
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