neXband Communications Service Agreement
In this Service Agreement ("Agreement"), the "Company" means neXband Communications, Inc. (formerly known as Arriva Communications, Inc.), d/b/a/ Chickamauga Long Distance, Fulton Long Distance or Mound Bayou Long Distance or any affiliates of neXband Communications, Inc. authorized to provide you with the Services defined below and "you" or "your" means the individual or entity using or paying for the Services.
"Service" or "Services" means
(1) the Company state-to-state and international telecommunications services you are enrolled in, use, or pay for that the Company provided to you under tariffs filed with the Federal Communications Commission as of July 31, 2001, and for any such services you continue to use thereafter, and
(2) to the extent permitted by law, the Company's intrastate services and dial around services, where the Agreement provisions relating to these services are not in conflict with applicable tariffs filed with state agencies.
ENROLLING IN, USING, CONTINUING TO USE, OR PAYING FOR THE COMPANY'S SERVICES ON OR AFTER AUGUST 1, 2001 CONSTITUTES YOUR ACCEPTANCE OF THE RATES, PRICES, CHARGES, TERMS, AND CONDITIONS OF THIS AGREEMENT.IF YOU DO NOT AGREE TO THE PRICES, CHARGES, TERMS, AND CONDITIONS, DO NOT USE THE SERVICES, AND CANCEL THEM IMMEDIATELY BY CALLING 1-888-866-3777.
The Company's "Rates and Services Guide" contains the most current rates, optional calling plans, prices and charges, service descriptions, and additional terms and conditions that apply to your Services. This Agreement incorporates by reference the rates, prices, charges, terms and conditions included in the "Rates and Services Guide."
Please review the "Rates and Services Guide" on our website. You may also request a copy of the "Rates and Services Guide" for the Services you are enrolled in by calling 1-888-866-3777 or by writing the Company at 162 East Amite Street, Suite 100, Jackson, Mississippi39201.
1. RATES, PRICES AND CHARGES. You are responsible for all charges for the Services, and you agree to pay the Company or its authorized billing agent for the Services at the rates, prices and charges set forth in the "Rates and Services Guide".
2. CHANGES TO RATES, PRICES AND CHARGES.
2.1 The Company reserves the right to make changes to this Agreement or changes to the "Rates and Services Guide", including, but not limited to, rates, prices, charges and terms for the Services from time to time. Any changes to this Agreement or to the "Rates and Services Guide" are effective fifteen (15) days after they are posted on the Company's website at http://www.nexband.com.With respect to any changes to rates, prices and charges, the Company shall, in addition to the website posting, provide notice of such changes in rates, prices and charges by any reasonable commercial method, including, but not limited to, a bill insert or a bill message. You agree that you will be bound by any changes to this Agreement and the "Rates and Services Guide" unless you cancel your Service prior to the effective date of the change. The Company also maintains the current Agreement and "Rates and Services Guide" in its office located at 162 East Amite Street, Suite 100, Jackson, Mississippi, 39201.
2.2 If you continue to be enrolled in, use, or pay for the services after any changes to the "rates and services guide" or this agreement, you agree to the changes.
3. PAYMENT.
3.1 You will provide the Company with your name, address and telephone number for billing purposes. Business entities will provide the name of a designated officer or agent. All information provided will be accurate, and the Company has the right to access and verify credit information.
3.2 Once Service is activated, you are responsible for paying all charges associated with the Service. Monthly Service charges are billed in advance and usage charges are billed in arrears. All payments for services are due on the date specified on your bill and are payable at the Company's office as designated on the bill. The Company may apply a late fee of the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law to each of your bills not paid by the due date.
3.3 When billing for the Company's Services is performed by local exchange telephone companies, credit card companies or others, the payment conditions and regulations of such companies apply, including any applicable interest and/or late payment charges.
3.4 In the event that the Company incurs fees or expenses, including attorney's fees, collecting, or attempting to collect, any charges owed to the Company, the Company may charge you all such fees and expenses reasonably incurred, including a collection fee on the unpaid charges accruing at a rate of one and one-half percent (1.5%) per month. Collection fees on unpaid charges shall begin to accrue when the account is assigned to an outside collection agency. Such collection fees are separate and distinct from attorney's fees and other costs incurred in collecting charges owed to the Company.
3.5 You shall be responsible for all calls placed by or through your equipment by any person. In particular and without limitation to the foregoing, you are responsible for any calls placed by or through your equipment via any remote access features. You are responsible for all calls placed via your authorization code as a result of your intentional or negligent disclosure of the authorization code.
4. AVAILABILITY OF SERVICE. Subject to the availability of facilities and subject to transmission and like conditions, Service is available for your use twenty four (24) hours a day, seven (7) days a week.
5. USE OF SERVICE. You may use the Service for any lawful purpose for which the Service is technically suited. Any unlawful use of the Service is strictly prohibited and may be grounds for immediate termination of Service by the Company.
6. LIMITATIONS.
6.1 Service is offered subject to the availability of the necessary facilities and equipment and subject to the provisions of this Agreement.
6.2 The Company reserves the right to discontinue or limit service when necessitated by conditions beyond its control, or when you are using the service in violation of provisions of this Agreement.
6.3 The Company does not undertake to transmit messages, but offers the use of its facilities when available, and will not be liable for errors in transmission or for failure to establish connections.
6.4 All Services provided under this Agreement are directly or indirectly controlled by the Company and you may not transfer or assign the use of these Services without the express written consent of the Company.
6.5 This Agreement shall apply to all such permitted assignees or transferees.
6.6 The Company may from time to time, and at its sole discretion, discontinue certain Services, subject to applicable law and regulation.
7. LIABILITY OF THE COMPANY.
7.1 The liability of the Company, if any, for damages associated with acts or omissions involving initiation, installation, provision, termination, maintenance, repair, interruption, delays, or failures in transmissions for any Service ("Service Problems"), whether caused by the negligence of the Company or otherwise, is expressly limited to credits issued by the Company to you. No credit will exceed the charges billed by the Company to you for the period during which the Service Problem occurred. The Company will issue a credit only when the Service Problem lasts more than twenty-four (24) hours. The Company may also deny your request for credit where your evidence is inconclusive or the request for credit is otherwise unwarranted or insufficient.
7.2 In no event is the Company liable to any person for any cost, damage or harm whatsoever arising from:(a) your negligence or willful act; (b) the attachment or use of any equipment or wiring by you which you use in conjunction with the Service; (c) the use of any facilities of other carriers by the Company in rendering the Service to you; (d) errors or omissions associated with your telephone number or listing information provided via direct assistance; or (e) any acts beyond the control of the Company including, but not limited to: (1) acts of God, riots, fire, flood or other catastrophe; or (2) any law, regulation, directive, order or request of any federal or state governmental authority or agency having jurisdiction over the Company. Under no circumstances whatsoever will the Company or its officers, agents, or employees be liable for lost profits, indirect, incidental, special, punitive, exemplary, or consequential damages.
7.3 The Company is not liable for any act or omission of any other company or companies furnishing a portion of the Service. No agents or employees of other carriers shall be deemed to be agents or employees of the Company.
7.4 The Company will make no refund of overpayments to you unless the claim for such overpayment, together with proper evidence, be submitted within one (1) year from the date of alleged overpayment unless billing records prepared by the Company can be produced which would justify a credit beyond one year.
8. INDEMNITY. You agree to indemnify and hold harmless the Company for any liability, damages, costs or expenses with respect to any and all claims and damages, of every kind(including specifically lost profits, special or consequential damages and legal expenses), arising from your use of the Service, including, but not limited to:(a) claims for libel, slander, infringement of copyright or unauthorized use of any trade mark, trade name or service mark arising out of the material, data, information, or other content transmitted by you over the Company's facilities; and (b) claims for patent infringement arising from combining or connecting the Company's facilities with your apparatus and systems. Your indemnity of the Company also extends to:(a) any claims or damages arising out of or attributed, directly or indirectly, to Service Problems; (b) any claims or damages of the owner of your premises or equipment; (c) any other third party claims and damages. This provision shall survive termination of the Services provided under this Agreement.
9. WARRANTIES. No warranties, except as may be expressly set forth herein. The company makes no warranties, express or implied, with respect to the provision of its services, and expressly disclaims any implied warranties of merchantability or fitness for a particular purpose.
10. TAXES, FEES AND SURCHARGES. In addition to the charges for the Service, you are also responsible for paying all applicable federal, state and local use, excise, sales or privilege taxes, and all fees chargeable to or against the Company as a result of its provision of Service to you. Taxes are not included in the rates, prices and charges listed in the "Rates and Services Guide. The Company will not provide advance notice of changes to taxes and surcharges, except as required by applicable law.
11. BILLING DISPUTES. If you believe you have been billed in error, you must contact the Company within sixty (60) days of the date of the bill which contains the disputed charge. Refunds or adjustments will not be issued for any charge that is more than sixty (60) days old. You may withhold from payment to the Company the disputed portion of any bill pending resolution of the dispute, but all undisputed charges are due within the normal time period. The Company will notify you of the results of its inquiry, and either adjust the billing, issue a credit, or notify you that all or a portion of the disputed amount is still owed. You will be required to pay such amount within thirty (30) days thereafter, and if you fail to pay this amount within the time required, your account will be deemed past due and unpaid. In such event, the Company will be entitled to terminate your Service immediately without any liability whatsoever and/or require an additional deposit. In addition, any payments you withheld pending resolution of the dispute may be subject to a late fee of one and one-half percent (1.5%) per month for the period during which such charges remain unpaid.
12. TERMINATION OF SERVICE BY THE CUSTOMER. Upon providing the Company adequate information as to your identity, you may terminate Service by notifying the Company.
13. TERMINATION OF SERVICE BY THE COMPANY.
13.1 The Company may immediately terminate or withhold Service to you without incurring any liability whatsoever for the following reasons:
(a) nonpayment of any sum due for Service where your charges remain unpaid more than thirty (30) days following written notice of nonpayment from the Company mailed, postage prepaid, to your last known address;
(b) your acts or omissions which constitute, in the reasonable opinion of the Company, a violation of or a failure to comply with any term of this Agreement or the "Rates and Services Guide" and where such violation or failure to comply with a term of this Agreement threatens to interfere with the Company's operations or its furnishing of service to, or the use of service by, another customer of the Company;
(c) the implementation of any order of the court of competent jurisdiction, or of a federal or state regulatory authority of competent jurisdiction, prohibiting the Company from furnishing you Service; or
(d)failure by you to provide the Company reasonable access to its equipment and property;
(e)failure by you to furnish such service, equipment, and/or rights-of-way necessary to serve you as shall have been specified by the Company as a condition of obtaining Service;
(f)in the event of tampering with the Company's equipment;
(g)in the event of a condition determined to be hazardous to you, to other customers of the Company, to the Company's equipment, the public, or to employees of the Company;
(h)in the event your use of the Services adversely affects the Company's equipment or the Company's service to others;
(i)in the event of fraudulent use of the Service; and
(j)where the Company reasonably deems partial or complete termination of Service is necessary to prevent unlawful use of any of its services.
14. OUTSTANDING CHARGES. If Services are terminated, suspended, restricted or cancelled by you or the Company, any charges will accrue through the date that the Company fully processes the termination, suspension, restriction or cancellation. You must pay all outstanding charges for the Services, including payment of any bills that remain due after the date of cancellation.
15. TESTING AND INSPECTIONS. Without incurring any liability whatsoever, the Company may, at any time, interrupt the provision of Service to you in order to perform tests and inspections to assure compliance with this contract and/or the proper installation and operation of either your equipment and facilities or the Company's equipment and facilities. The Company may continue such interruption until any noncompliance or improper equipment or facilities identified is corrected.
16. NO WAIVER. Based on the circumstances presented, the Company, at its sole discretion, may waive certain of the requirements stated herein from time to time. Such waiver will be strictly limited to that set of specific circumstances and will not act as a waiver of any provisions of this Agreement or eliminate your obligation to continue to comply with this Agreement.
17. GOVERNING LAW. This Agreement shall be governed by and construed under the laws of the State of Mississippi and applicable federal laws without regard to choice of law principals.
18. DISPUTE RESOLUTION.
18.1 If you have a dispute regarding your service or bill please first call the Company's customer service at 1-888-866-3777.
18.2 Before initiating or participating in any arbitration or other resolution proceeding concerning any aspect of this Agreement or any of the Services, you must notify the Company in writing of such a dispute and give the Company at least sixty (60) days from the date of the Company's receipt of the written notice of the dispute to resolve the dispute. Such written notice should be mailed to neXband Communications, Inc., 162 East Amite Street, Suite 100, Jackson, Mississippi39201.
18.3 With respect to billing disputes, if you do not notify the Company in writing of a billing dispute within 60 days of the date of the bill in accordance with § 11 of this Agreement, any matters pertaining to disputed invoices shall be deemed to be correct and binding on you with respect to the disputed invoice.
18.4 The arbitration procedures set forth in this dispute resolution section are governed by the Unites States Arbitration Act, 9 U.S.C Sections 1-16 at seq. ("USAA").Any dispute arising out of or related to this Agreement or the Company's Services that is not satisfactorily resolved within sixty (60) days from the date the Company receives written notice from you of such dispute, regardless as to whether the dispute is based in contract, tort, statute, fraud, misrepresentation or any other legal or equitable theory, must be submitted to the American Arbitration Association ("AAA") for final and binding Arbitration. The Arbitration will be conducted pursuant to the AAA Arbitration rules for the resolution of consumer-related disputes ("AAA Rules") as such rules are in effect on the date of commencement of the Arbitration, and as such rules are modified by this Agreement. Either party may contact AAA in writing at AAA Central Case Management Center, 13455 Noelle Road, Suite 1750, Dallas, Texas75240-6636.For more information regarding AAA, you may visit their website at http://www.adr.org.
18.5 The arbitration will be based only on the written submissions of the parties and documents submitted to the arbitrator, unless the parties agree or the arbitrator orders otherwise. Additional charges may apply for such procedures.
18.6 Any controversy over whether an issue is arbitral will be determined by the arbitrator. The arbitrator will have no authority to award punitive or exemplary damages or attorney's fees. The award may be confirmed and enforced at any court of competent jurisdiction.
18.7 You will be responsible for the filing fees set forth in AAA Rules for Consumers. Unless otherwise provided for in the AAA Rules or in the arbitration award, all other administrative fees and expenses of arbitration, including the arbitrator's fees and expenses, will be divided equally between you and the Company. Each party will be responsible for all costs and expenses related to preparing and presenting its own case, including, but not limited to attorney's fees and witness fees.
18.8 Any in-person arbitration proceedings will be held at the location that AAA selects in the state where you reside, unless otherwise mutually agreed upon by the parties.
18.9 No dispute may be consolidated in any actions with the disputes or claims of other consumers or customers. You agree that you may not bring any dispute or claim as a class action and you agree not to act as a class representative or participate as a member of a class of claimants with respect to any dispute or claim relating to this Agreement or to the Services provided by the Company.
19. NO THIRD PARTY RIGHTS.This Agreement does not provide any third party with a remedy, claim, or right of reimbursement.
20. ENTIRE AGREEMENT. This Agreement (which incorporates by reference the
"Rates and Services Guide") constitutes the entire agreement between you and
the Company and supercedes all prior agreements, understandings, representations,
statements or proposals, whether written or oral. This Agreement may only be
changed as provided in Section 2 of this Agreement.
21. SEVERABILITY. If any terms or provisions of this Agreement are held or found to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement shall not be affected thereby and shall remain valid and enforceable to the fullest extent permitted by law.
Section 2
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