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TERMS AND CONDITIONS OF USE |
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SERVICES / TERM. These terms and conditions apply to the provision of all telecommunications and related services by American Telephone Company, LLC on behalf of itself and its operating affiliates ('ATC') under the Master Service Agreement ('MSA'), to which this schedule is a part, to the customer identified on the MSA ('Customer'). The MSA together with these terms and conditions shall be referred to as the 'Agreement.' Customer agrees to purchase from ATC the services identified on the MSA ('Services') for the term set forth on the MSA ('Initial Term'). The 'Term' of the Agreement shall be the Initial Term plus any and all renewal periods. The Agreement shall become effective on the Service Commencement Date, as defined below, and shall continue in full force and effect for the Term stated herein. The Agreement, upon expiration, will be automatically and continually renewed for a period equivalent to the Initial Term unless either party has delivered written notice of its intent to terminate the Agreement at least sixty (60) days prior to the end of the Term.
Service Commencement Date. ATC will notify Customer that the Services are installed or connected and available for use. The date of such notice shall be the 'Service Commencement Date'.
Rates and Charges. The 'Rates and Charges' for the Services shall be those set forth in (1) the fee schedules on the MSA, (2) amendments, supplements, or exhibits to the fee schedule, (3) tariffs, and (4) publicly posted terms and conditions, as applicable and as amended from time to time. For any service provided to Customer for which a rate is not specified in the MSA, the rate set forth in the tariff or the publicly posted terms and conditions shall apply. ATC retains the right to change, increase or decrease from time to time, in its discretion and without liability to Customer, the methods, processes and/or the suppliers by which ATC provides Services to Customer. ATC may also modify service and rate offerings upon ten (10) days notice of the intended change.
Billing and Payment. Customer shall pay the Rates and Charges, as well as all taxes, fees, and surcharges when due. Customer shall pay all ATC invoices upon receipt. Any invoiced amounts not paid within thirty (30) days after the date listed on the invoice ('Invoice Date') shall subject to a late payment fee equal to 1.5% of the unpaid balance due. Customer must provide ATC with written notice of any disputed invoiced amounts within ninety (90) days of the Invoice Date, providing a clear written statement explaining the basis for each and every such dispute. If Customer fails to provide such notice, Customer shall be deemed to have waived any and all rights to dispute the invoiced amounts.
Master Service Agreement Charges. Customer commits to pay to ATC the fees set forth on the MSA ('Minimum Fee'). Customer agrees to pay the greater of (i) the total amount due for all services and equipment provided by ATC under the Agreement, or (ii) the Minimum Fee. Customer accepts responsibility for the rates, charges, taxes, usage fees, and surcharges associated with all use of Services provided by ATC, regardless of whether Customer authorized the calls. ATC shall not be liable whatsoever for the use, misuse or abuse of a Customer's service by third parties.
Taxes, Fees, and Surcharges. Customer shall be responsible for payment of all state and local taxes, fees, and surcharges relating to the sale, transfer of ownership, installation, license, use, or provision of services and equipment provided by ATC, including but not limited to USF, PICC, 911, E911, LNP, TRS, MTA, GRT, SLC, EUCL and payphone surcharges, as required or permitted by applicable law, regulation or tariff or publicly available terms and conditions and/or at www.americantelephonecompany.com.
FCC DISCLOSURE REGARDING 911 SERVICE. THE FEDERAL COMMUNICATIONS COMMISSION (FCC) HAS ENACTED REGULATIONS REQUIRING COMMUNICATIONS PROVIDERS TO MAKE A DISCLOSURE REGARDING E911 SERVICE. IN ADDITION, THE FCC REQUIRES CUSTOMER TO ACKNOWLEDGE RECEIPT OF THE DISCLOSURE, WHICH CUSTOMER DOES BY VIRTURE OF ITS SIGNATURE ON THE MSA. IN ITS ORDER, THE FCC RECOGNIZED THAT UNDER CERTAIN CIRCUMSTANCES E911 SERVICE MIGHT FAIL. THEY HAVE REQUIRED US TO RELAY CERTAIN CONCERNS REGARDING POSSIBLE E911 FAILURES, AS FOLLOWS: 1. POWER LOSS: IN THE VERY UNLIKELY EVENT YOUR ENERGY PROVIDER OR BUILDING ELECTRICAL SYSTEM FAILS, YOU WILL LOOSE E911 SERVICE (AND SERVICE GENERALLY) INASMUCH AS CUSTOMER PREMISE EQUIPMENT (CPE) RELY ON POWER; 2. RELOCATION OF YOUR EQUIPMENT: IF YOU MOVE YOUR EQUIPMENT'S LOCATION, INCLUDING YOUR CPE, YOU WILL HAVE TO NOTIFY US SO THAT WE CAN HAVE THE CORRECT ADDRESS INFORMATION PROGRAMMED INTO THE E911 SYSTEM; 3. LOOP FAILURE: IN THE UNLIKELY EVENT THAT THE DEDICATED CONNECTION BETWEEN YOUR LOCATION AND THE COMPANY FAILS, YOU WILL NOT BE ABLE TO MAKE ANY CALLS, INCLUDING E911; 4. USE OF A NON-NATIVE TELEPHONE NUMBER: IN THE EVENT YOU OBTAIN NUMBERS THAT NORMALLY RESIDE OUTSIDE YOUR CALLING AREA YOU MAY NOT BE ABLE TO REACH E911 SERVICES; 5. ALI DATABASE REGISTRATION DELAYS: IN THE EVENT THAT DELAYS OCCUR WHEN MAKING YOUR LOCATION AVAILABLE IN OR THROUGH THE ALI DATABASE, YOU MAY NOT BE ABLE TO REACH E911 SERVICES. ACCORDINGLY, BY EXECUTING THE ATTACHED MSA YOU ARE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD THE ABOVE DISCLOSURE AND ARE IN COMPLIANCE WITH THE FEDERAL REGULATIONS, SO THAT WE MAY PROVISION YOUR SERVICE. YOU MAY WANT TO OBTAIN OR MAINTAIN TRADITIONAL VOICE SERVICE AS A RESULT OF THESE LIMITATIONS.
Facilities. In the event ATC is required to construct and or acquire telecommunications related facilities to provide Services or equipment to Customer, Customer acknowledges and agrees that ATC will incur significant costs. In addition to any other rights and remedies ATC may have, Customer agrees that if Customer cancels, terminates or breaches the Agreement after execution but prior to the date of termination, Customer will be required to reimburse ATC for all costs reasonably incurred.
Termination. ATC may terminate the Agreement upon thirty (30) days written notice if Customer materially breaches the MSA and Customer fails to cure the breach within such notice period, provided, however, that the cure period for breach of any of Customer's payment obligations shall be only ten (10) days. ATC may terminate the Agreement upon written notice to Customer if (i) Customer dissolves or becomes insolvent or bankrupt; (ii) Customer makes an assignment for the benefit of creditors; (iii) Customer suspends the transaction of its usual business or consents to the appointment of a trustee or receiver; (iv) a trustee or receiver of Customer is appointed; or (v) any bankruptcy, reorganization, insolvency or similar proceeding is instituted by or against Customer. Customer further understands and agrees that any breach by Customer of its obligations under this Agreement shall also be deemed a breach by Customer of its obligations under any other agreements it (or any Customer affiliate) has entered into
with ATC and/or its affiliates and understands and agrees that any such breach shall authorize ATC and/or any of its affiliates to immediately suspend performance under, and or terminate, said agreements with Customer (or Customer's affiliates) for default. ATC shall not be liable for any special, incidental or consequential damages whatsoever incurred by Customer while disconnected for non-payment.
Termination Liability. If Customer terminates the Agreement after the Service Commencement Date and prior to the expiration of the Term, Customer will be liable to ATC for termination charges as follows: Customer shall pay ATC, immediately upon demand, all sums due and unpaid plus an amount equal to the Minimum Fee multiplied by the amount of months left in the Term together with any and all previously waived or credited installation and one-time credits.
Limitation of Liability, WITH RESPECT TO CLAIMS OR SUITS BY CUSTOMER, OR ANY OTHERS, FOR DAMAGES RELATING TO OR ARISING OUT OF ACTS OR OMISSIONS UNDER THIS AGREEMENT AND/OR SERVICES PROVIDED HEREUNDER, ATC'S LIABILITY FOR SERVICE INTERUPPTIONS OR PROBLEMS, IF ANY, SHALL BE LIMITED TO CREDIT ALLOWANCES AS EXPRESSLY PROVIDED IN APPLICABLE TARIFFS OR AS OTHERWISE SET FORTH IN THESE TERMS AND CONDITIONS. ATC SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES RESULTING FROM: (A) THE DELIVERY, INSTALLATION, MAINTENANCE, OPERATION, USE OR MISUSE OR AN ACCOUNT, EQUIPMENT OR SERVICE; (B) ANY ACT OR OMISSION OF CUSTOMER, OR ITS END-USERS OR AGENTS, OR ANY OTHER ENTITY FURNISHING EQUIPMENT, PRODUCTS OR SERVICES TO CUSTOMER; OR (C) ANY PERSONAL OR PROPERTY DAMAGES DUE TO THE LOSS OF STORED, TRANSMITTED OR RECORDED DATA RESULTING FROM THE SERVICE OR THE EQUIPMENT, EVEN IF ATC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE LOSS OF DATA, GOODWILL OR PROFITS, SAVINGS OR REVENUE, INTERRUPTION OF BUSINESS OR HARM TO BUSINESS, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY CAUSE WHATSOEVER.
Indemnification. Customer agrees to indemnify, defend and hold harmless ATC and its officers, directors, employees, agents, affiliates and suppliers from and against any claims, actions, demands, losses and damages, including attorney's fees, relating to any violation of this Agreement or related acts or omissions by Customer, its end users, or other users of its account, or the replacement or transmission of any message, information, software or other materials on the internet by Customer or end users of Customer's account. This indemnification shall survive the termination or expiration of the Agreement.
Force Majeure. Except with respect to Customer's payment obligations, notwithstanding any other provision of the MSA, neither party to the MSA shall be liable to the other party for any delay or failure in performance of the MSA to the extent such delay or failure is caused by fire, flood, explosion, accident, war, terrorism, strike, embargo, governmental requirement, civil or military authority, Act of God, inability to secure materials or labor or any other causes beyond its reasonable control. Any such delay or failure shall suspend each party's performance until such event ceases.
Mandatory Arbitration. Any controversy or claim, including without limitation billing disputes, arising out of or relating to this Agreement or any Services provided by ATC that the parties are unable to resolve through negotiation shall be submitted to arbitration administered in the Borough of Manhattan, State of New York by the American Arbitration Association under its Commercial Arbitration Rules. Customer waives any and all rights to bring suit in any court to resolve such controversies or claims, and specifically waives any right it might otherwise have to a trial by jury. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Partial Invalidity. If any provision of the Agreement shall be held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render the Agreement unenforceable. Instead, the remainder of the Agreement shall remain in effect, excluding the invalid or unenforceable provision. However, if such provision is an essential element of the Agreement, the Parties shall promptly negotiate a substitute provision
Additional Services. Additional locations or additional services, not covered by the MSA, may be added by the execution of additional MSAs or pursuant to tariffs or publicly posted terms and conditions. Any additional MSA shall have a separate and distinct term and shall apply separately and distinctly to the services covered therein.
Miscellaneous. ATC may assign or transfer all or part of the Agreement to any affiliates or assigns. With reasonable prior notice, Customer may assign or transfer this Agreement to any company that is the successor to substantially all of its assets or business. All other attempted assignments shall be void without ATC's prior written consent. Customer authorizes ATC to perform credit checks and investigate financial references. Customer further agrees that it and its end users will comply with all applicable laws and regulations and will not use ATC services in a fraudulent manner or in a manner that exposes ATC to legal liability. Customer agrees to be bound by the ATC tariff, publicly posted terms and conditions, and additional terms and conditions that are available upon written request by Customer or posted at www.americantelephonecompany.com
Tariffs/Entire Agreement. This Agreement represents the complete agreement and understanding of the parties with respect to the items addressed herein and any related matters, and supersedes any and all other agreements whether written or oral, including but not limited to, any advertising, brochures, proposals, representations or understandings regarding the subject matter hereof. This Agreement may be modified only by written agreement signed by both parties, changes to the URL sites referenced herein, changes to the applicable tariffs or publicly posted terms and conditions, or as otherwise specifically provided herein. The terms and conditions that shall apply in connection with these Services, and the rights and liabilities of the parties shall be as set forth herein and in all applicable tariffs, which are subject to change and are on file with the applicable state regulatory commission and/or Federal Communications Commission, and in all publicly posted terms and conditions. This Agreement shall be governed by the laws of the State of New York without reference to its principles of conflicts of laws, and Customer consents to the nonexclusive jurisdiction of the federal and State courts located in the State of New York, New York County. YOU HEREBY CONSENT TO THE INCORPORATION BY REFERNECE OF APPLICABLE TARIFFS, PUBLICLY POSTED TERMS AND CONDITIONS, AND THE ADDITIONAL TERMS AND PRODUCT TERMS AND CONDITIONS POSTED AT AMERICANTELEPHONECOMPANY.COM
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