This INTERSTATE AND INTERNATIONAL LONG DISTANCE SERVICE AGREEMENT ("Agreement") contains the general rates, terms and conditions for provision by BAY SPRINGS LONG DISTANCE, INC., d/b/a "TEC", (the "Company") of your interstate long distance services between points within the United States and your international long distance services (together, the "Service") beginning July 31, 2001 and introduces the Company's new arbitration provision. Throughout this Agreement, our use of the term "you" or "your" refers to the individual or entity using or paying for the Service. UNDERSTAND THAT THIS AGREEMENT INCORPORATES BY REFERENCE THE SPECIFIC RATES, CHARGES, AND OTHER TERMS AND CONDITIONS SET OUT IN THE COMPANY'S SERVICE TERMS, AGREEMENTS AND RATES DOCUMENT. Bay Springs Long Distance Service Terms, Agreements and Rates (the "BLDSTAR"), as well as a copy of this Agreement, may be accessed by visiting the Company's office located at 2988 Highway 15, Bay Springs, Mississippi or on the Company's web site at www.bsld.net.
YOU ARE NOT REQUIRED TO TAKE ANY ACTION. UNDERSTAND THAT YOUR CONTINUED USE OF THE COMPANY'S SERVICE CONSTITUTES YOUR ACCEPTANCE OF THE AGREEMENT AND THE "BLDSTAR" DOCUMENT.
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) house a day, seven (7) days a week. The specific rates, charges and other terms and conditions of your Service not set forth herein are found in the Company's BLDSTAR.
Use Of Service - You may use the Service for any lawful purpose. Any unlawful use of the Service is strictly prohibited and may be grounds for immediate termination of Service by the Company.
Rates And Changes In Rates, Terms And Conditions - Current rates, charges and other service terms and conditions not set forth herein are found in the Company's BLDSTAR. The Company reserves the right to make price changes for Service in the BLDSTAR or changes in the terms and conditions in this Agreement or the BLDSTAR upon providing seven (7) days' advance notice. The Company may elect to provide such notice by any reasonable commercial method including, but not limited to, a bill insert or a bill message. Promotions and/or bonus offers may be communicated to you orally or in writing at the Company's discretion. Promotions and bonus offers are limited as follows: (a) only one bonus program may be utilized, subscribed to, or associated with any account or customer at any one time; (b) sign-up promotions or bonuses are available only to new customers of the Company; (c) to receive on-going benefits of a promotion or bonus, you must be a customer in good standing with the Company at the time such promotion or bonus is scheduled to be granted; and (d) the Company reserves the right to amend or terminate promotions and/or bonus programs upon seven (7) days' advance notice to you. YOU AGREE THAT YOU WILL BE BOUND BY ANY CHANGE IN THE RATES, TERMS AND CONDITIONS OF YOUR SERVICE UNLESS YOU CANCEL YOUR SERVICE AS PROVIDED FOR IN PARAGRAPH 13 BELOW PRIOR TO THE EFFECTIVE DATE OF THE CHANGE. Again, the Company maintains this AGREEMENT and the BLDSTAR, as updated from time to time, in its office located at 2988 Highway 15, Bay Springs, MS.
Liability Of The Company - Subject to the provisions of Section 12 of this Agreement, the liability of the Company, if any, for interruption, delays, or failures in transmissions ("Service Problems"), whether caused by the negligence of the Company or otherwise, is expressly limited to a credit for the proportionate monthly subscription fee charged by the Company to you for such Service during the period during which the Service Problem occurred. The Company will issue a credit for such monthly service charges only when the Service Problem has a continuous duration of more than 24 hours. You are obligated to notify the Company immediately of any interruption in service for which a credit allowance is desired. Before giving such notice, you shall ascertain that the trouble is not being caused by any action or omission of yours within your control, or is not in wiring or equipment, if any, furnished by you and connected to the Company's facilities.
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 directory 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 to request of any a federal or state governmental authority or agency having jurisdiction over the Company or its officers, agents, or employees. Without limiting the forgoing, the Company shall not be liable for indirect, incidental, special, punitive, exemplary, or consequential damages
Indemnity - You agree to indemnify and hold harmless the Company for any liability with respect to any and all claims and damages, of every kind (including specifically special or consequential damages), arising from your use of the Service. 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; or (c) any other third party claims and damages.
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.
Payment - You are required to provide the Company with your name, address and telephone number for billing purposes. Business entities are required to 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.
Once service is activated, you are responsible for paying all charges associated with the Service. Monthly Service charges are billed in advance and any usage charges are billed in arrears. The Company's bills are due upon receipt. Amounts not paid within twenty (20) days from the bill date of the invoice will be considered past due. You will be assessed an administrative charge at a rate not to exceed one and one half percent (1.5%) per month on past due amounts, SUBJECT TO PARAGRAPH 15 HEREUNDER. You are responsible to pay all the Company's cost of collection, including but not limited to, bank charges, collection agency charges, court costs, and reasonable attorneys' fees.
If at any time the Company determines that you present an undue risk of nonpayment, the Company may require you to pay your bills within a specified number of days and to make such payments in cash or the equivalent of cash.
If you pay for service by a check, draft or similar instrument (collectively "check") that is returned unpaid by a bank or other financial institution to the Company for any reason, the Company reserves the right to assess a return check charge of $20.00. Notwithstanding the return check charge provision as set forth in this Section 7, the Company may disconnect your service in the event of a returned payment, as set forth in Section 14 of this Agreement.
REFER TO THE BLDSTAR FOR ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO PAYMENT.
Calculation Of Usage - Long distance usage charges are based on your actual usage of the Company network. Chargeable time begins when a connection is established between you and your called party. Chargeable time ends when either party hangs up and the network connection is released. Charges are assessed in increments of one minute, with additional minutes rounded up. Where charges for Service vary due to time of day, time periods are defined in the Company's rate table and are determined by the local time of the location where you make the call. When a call is established in one rate period and ends in another rate period, the rates are based on the portion of your call that occurs within each rate period.
REFER TO THE BLDSTAR FOR ANY PLAN SPECIFIC USAGE CHARGES, OPTIONS AND TERMS AND CONDITIONS.
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.
Billing Entity Conditions - 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 administrative charges, including, but not limited to interest, charges or fees imposed due to your failure to pay your bills timely.
Deposits - In order to safeguard its interests, the Company may also require you to make a deposit to guarantee payment for Service before activating or reactivating Service. Such deposit shall not exceed two times your estimated monthly charges. Interest will by paid by the Company upon your deposit annually, at a rate as prescribed by the Mississippi Public Service Commission. After your Service is activated, the Company may require, upon five (5) days' written notice, a deposit, as stated above, from you if (a) your account is not in good standing; (b) if your deposit has been refunded or found to be inadequate; or, (c) if your usage increases sufficiently to warrant an additional deposit.
The Company will return your deposit as follows: (a) when an application for Service has been cancelled prior to the time that your Service is activated, your deposit will be applied to any existing charges, and any excess portion of the deposit, if any, will be returned by the Company within fifteen (15) days following settlement of your account; (b) upon the discontinuance of Service, the Company will refund your deposit with accrued interest to the extent that it exceeds any unpaid charges for Service provided to you; (c) if your service is residential and your account is in good standing for twenty-four (24) months after the date the initial deposit was made, the unused portion of your deposit will be refunded to you, with accrued interest by crediting your December billing that follows said twenty-four month period; or, (d) upon your application to and approval by the Company. The refunding or crediting of your deposit and accrued interest in no way relieves you of your obligation to comply with all of the terms and conditions of this AGREEMENT (incorporating by reference the BLDSTAR) or from making payments when due.
Testing And Inspections - The Company may, upon notice, make such tests and inspections as may be necessary to determine that the requirements of this AGREEMENT (which incorporates by reference the BLDSTAR) are being complied with in the installation, operation or maintenance of your or the Company's equipment. The Company may interrupt service at any time, without penalty to the Company, should you violate any of these terms and conditions.
Termination Of Service Or Changes In Service By You - Upon providing the Company adequate information as to your identity, you may terminate Service by providing written notice to the Company, Attention: Customer Service Dept, TEC, Inc., P. O. Box 728, Bay Springs, MS 39422, or by telephone to the Company Customer Service Department at 601-764-2480. You shall be responsible for all amounts due and payable upon termination, including, without limitation, any specified administrative charge imposed because of early discontinuance (imposed as a charge and not as a penalty).
You may also make changes or alterations in your Service by written or telephonic notice as set forth above.
Termination Of Service By The Company - Upon nonpayment of any sum owing to the Company, or upon a violation of any the provisions governing the furnishing of your Service under this Agreement (incorporating by reference the BLDSTAR), the Company may upon five (5) business days written notification to you, except in extreme cases, without incurring any liability, immediately discontinue the furnishing of such Service. The written notice may be separate and apart from your regular monthly bill for service.
Without incurring any liability, the Company may discontinue the furnishing of Service to you upon five (5) business days written notice if the Company deems that such action is necessary to prevent or protect against fraud or to otherwise protect the Company's personnel, agents, facilities or Services under the following circumstances, except under extreme cases where you may be disconnected immediately and without notice: (a) if you refuse to furnish information to the Company regarding your identity, address, credit-worthiness, past or current use of Services or planned use of Services; (b) if you provide false information to the Company regarding your identity, address, credit-worthiness, past or current use of Services or planned use of Services;(c) if you state that you will not comply with a Company request for reasonable security for the payment of Service; (d) if you have been given five (5) business days written notice in a separate mailing by the Company of any past due amount (which remains unpaid in whole or in part) for any Service to which you subscribe, had subscribed or used.
Following the discontinuance of your Service by the Company, you will be notified that your Service has been discontinued and why. The notice will include all reasons for the discontinuance and will include a toll-free number where you can obtain additional information.
If the Company terminates Service as set forth above, you will be considered to have canceled Service as of the date of termination and shall pay to Company any amount due as a result of such termination of Service, including, without limitation, any specified administrative charge imposed as a result of early discontinuance (imposed as a charge and not as a penalty) the same as if you had terminated Service as set forth in Section 13.
If Service has been discontinued for nonpayment or as otherwise provided herein and you wish it continued, Service shall, at the Company's discretion, be restored when all past due amounts are paid or the event giving rise to the discontinuance (if other than nonpayment) is corrected.
In the event your Service is partially or completely terminated for any of the reasons stated herein, you will remain responsible for all unpaid Service charges due and owing to the Company, including any amount due as a result of such termination of service, including, without limitation, any specified administrative charge imposed because of early discontinuance (imposed as a charge and not as a penalty). The Company will have the right to apply your deposit and any accrued interest to all administrative charges associated with cancellation and to all associated outstanding charges associated with your Service. If you seek reinstitution of Service following a partial or complete termination of Service by the Company, you will pay to the Company prior to the time Service is reinstituted: (a) all accrued and unpaid charges; and (b) a deposit.
Binding Arbitration - TO THE EXTENT THAT ANY DISPUTE IS NOT GOVERNED BY THE JURISDICTION OF THE MISSISSIPPI PUBLIC SERVICE COMMISSION OR THE FCC, UNDERSTAND THAT PURSUANT TO THIS PROVISION YOU AND THE COMPANY AGREE TO USE BINDING ARBITRATION, INSTEAD OF THE COURTS, TO DECIDE ANY DISPUTE THAT MAY ARISE AS A RESULT OF THIS AGREEMENT (INCORPORATING BY REFERENCE THE BLDSTAR), ANY BREACH THEREOF OR YOUR SERVICE AS PROVIDED HEREUNDER.
Any controversy or claim arising out of or relating to this Agreement, incorporating by reference the BLDSTAR, the breach thereof or your Service as provided hereunder, and not otherwise subject to the jurisdiction of the Mississippi Public Service Commission or the FCC, shall be settled by arbitration administered by the American Arbitration Association ("AAA") in accordance with its Commercial Arbitration Rules, except to the extent those rules are inconsistent with this Section 15, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Provided however that should your claim or controversy be under $10,000, the claim or controversy shall be settled by arbitration by the AAA in accordance with its Rules for the Resolution of Consumer-Related Disputes ("CRD Rules"), except to the extent that those rules are inconsistent with this Section 15. You and the Company agree that should any claim or controversy qualify for settlement by arbitration by the AAA in accordance with its CRD Rules, you and the Company are prohibited from seeking relief in an Mississippi small claims court, even if the claim or controversy is within its jurisdiction.
In the event of any dispute, claim, question or disagreement arising from or relating to this Agreement (incorporating by reference the BLDSTAR), the breach thereof or your Service as provided hereunder, you and the Company agree to first use your collective best efforts to settle the dispute, claim, question, or disagreement. To this effect, you and the Company shall consult and negotiate with each other in good faith and, recognizing mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. In the event that the dispute concerns your bill, you must bring your billing inquiry or dispute to the Company's attention, either in writing to TEC, P. O. Box 728, Bay Springs, MS 39422, or verbally using the Company's toll free number, 1- 888-764-2480. If you and the Company do not reach such solution within a period of sixty (60) days, then, upon notice by either party to the other, all disputes, claims, questions or differences shall be finally settled by arbitration administered by the AAA in accordance with the provisions of its Commercial Arbitration Rules or, as applicable its CRD Rules, except to the extent those rules are inconsistent with this Section 15.
You and the Company both agree that in the event that arbitration is necessary, a single arbitrator, mutually selected by the parties, shall conduct the arbitration. If the parties cannot agree on the appointment of such arbitrator within ten (10) days following the date notice of the dispute is provided by you or the Company to the adverse party, the arbitrator will be selected according to the applicable AAA Rules. The place of any in-person arbitration shall be Jackson, Mississippi. As far as is practical, the parties agree that such arbitration shall be conducted as informally and expeditiously as the arbitrator may allow.
YOU AND THE COMPANY BOTH AGREE THAT AN AWARD OF DAMAGES, IF ANY, BY THE ARBITRATOR WILL BE SUBJECT TO ANY AND ALL STATUTORY MAXIMUMS IMPOSED BY MISSISSIPPI LAW.
The arbitrator shall award reasonable attorney's fees and other reasonable costs, including, but not limited to, the costs of the arbitrator, to the party prevailing in such arbitration whether or not the controversy is reduced to judgment or award. The prevailing party will be that party who is determined by the arbitrator to have prevailed on the major disputed claims.
Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of both parties.
Miscellaneous
Entire Agreement - This Agreement (which incorporates by reference the BLDSTAR) contains the entire agreement between you and the Company and supersedes all prior oral or written agreements, understandings and representations to the extent that they relate in any way to the subject matter hereof. This AGREEMENT can be amended only as provided in Section 3 above.
Governing Law - This Agreement (which incorporates by reference the BLDSTAR) and the rights of the parties under it shall be governed by and construed in all respects in accordance with the laws of the State of Mississippi and applicable federal law, without giving effect to its choice of law rules, except that the arbitration provisions in Section 15 will be governed by the Federal Arbitration Act.
Validity and Enforceability - If any part or provision of this Agreement (which incorporates herein by reference the BLDSTAR) is determined to be invalid or unenforceable under applicable laws by any court or agency of competent jurisdiction, that part or provision will be ineffective only to the extent of such invalidity or unenforceability without in anyway affecting the remaining parts or provisions of this Agreement.
No Third-Party Beneficiaries - This Agreement (which incorporates by reference the BLDSTAR) shall not confer any rights and remedies upon any person other than you and the Company and any permitted assigns.
Assignment by You - You may not assign or transfer, at any time prior to or after the commencement of Service, your Service or any rights or obligations hereunder without the prior written consent of Company. In the event you are a business entity, an assignment shall be deemed to include any change of voting or management control. All terms and conditions contained in this Agreement (which incorporates by reference the BLDSTAR) is binding on you and the Company and upon the agents, heirs, executors, administrators, personal representatives, successors, and assigns of you and the Company. Any unauthorized assignment by you shall become null and void except as ratified by Company.
Assignment by the Company - The Company may assign all or part of its rights or duties under this Agreement (which incorporates by reference the BLDSTAR) without notifying you.
No Waiver - Based on the circumstances presented, the Company may waive certain of the requirements stated herein. Such waiver will be limited to that set of specific circumstances and will not eliminate your obligation to continue to comply with the terms and conditions stated herein.
Survival of Obligations - Any liability or obligation of you or the Company under any provisions of this Agreement will survive the cancellation or termination of this Agreement.
Term - This Agreement shall be effective for a period of twelve (12) months from and after the date of inception of service and shall be renewed for subsequent twelve (12) month increments unless earlier terminated as provided in paragraphs 13 and 14 herein.
Again, this Agreement (incorporating by reference the BLDSTAR) governs your Service, effective July 31, 2001. The rates, terms and conditions of your intrastate long distance service are still governed by tariff on file with the Mississippi Public Service Commission, which has also adopted regulations that govern the manner in which the Company bills for all of its services.