THANK YOU FOR USING THE SERVICES OF WESTEL, INC. (WESTEL).
BY ENROLLING IN, USING, OR PAYING FOR THE SERVICES, YOU AGREE TO THE PRICES,
CHARGES, TERMS AND CONDITIONS IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE
PRICES, CHARGES, TERMS AND CONDITIONS, DO NOT USE THE SERVICES, AND CANCEL THE
SERVICES IMMEDIATELY BY CALLING WESTEL 1-800-580-5585.
Undertaking of the Company
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| Toll Service consists of furnishing retail communications services from an
originating exchange service to a terminating exchange service area wherein
such terminating exchange service area is not within the local calling scope
of the originating exchange service area. |
Service Agreement
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| Customers may be required to enter into written service orders which shall
contain or reference the name of the Customer, a specific description of the
service ordered, the rates to be charged, the duration of the services and the
terms and conditions. Customers will also be required to execute any other
documents as may be requested by the Company. |
Description of Service
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| The Company provides toll telephone service for communications between and
among various points. |
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| The Company may act as the customer’s agent for ordering access connection
facilities provided by other carriers or entities when authorized by the
customer, to allow connection of a customer’s location to the Company
network. The customer shall be responsible for all charges due for such
service arrangements. |
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| The Company’s services are provided on a monthly basis unless otherwise
stated, and are available 24 hours a day, seven days a week. |
Responsibilities of the Subscriber
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| The subscriber is responsible for placing all necessary orders; for
complying with regulations; and for assuring that any users who access the
Company’s services using facilities or equipment owned or controlled by the
Subscriber complies with regulations. The subscriber shall ensure compliance
with any applicable laws, regulations, orders or other requirements as they
exist from time to time of any governmental entity relating to services
provided to the subscriber by the Company. The subscriber is also responsible
for the payment of charges for services originating from or billed to the
Subscriber’s numbers or facilities either via direct or remote access and
where the responsibility for charges for such services have not been accepted
by another party prior to the provision thereof. |
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| The subscriber is responsible for charges incurred for special construction
and/or special facilities that the subscriber requests and which are ordered
by the Company on the subscriber’s behalf. |
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| If required for the provision of the Company’s services, the subscriber
must provide any equipment, space, supporting structure, conduit and
electrical power without charge to the Company. |
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| The subscriber is responsible for arranging access to its premises at times
mutually acceptable to the Company and the subscriber, when required for the
Company personnel to install, repair, maintain, program, inspect or remove
equipment associated with the provision of the Company’s Service. |
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| The subscriber shall ensure that the equipment and/or system is properly
interfaced with the Company’s facilities or services, that the signals
emitted into the Company network are the proper mode, bandwidth, power, and
signal level for the intended use of the subscriber and in compliance with the
criteria set forth in this Agreement, and that the signals do not damage
equipment, injure personnel, or degrade service to other subscribers. If the
Federal communications Commission or other appropriate certifying body
certifies terminal equipment as being technically acceptable for the direct
electrical condition with interstate communications service, the Company will
permit such equipment to be connected with its channels without the use of
protective interface devices. If the subscriber fails to maintain the
equipment and/or the system properly, with resulting harm to the Company’s
equipment, personnel, or quality of service to other subscribers, the Company
may, upon written notice, require the use of protective equipment at the
subscribers expenses. If this fails to produce satisfactory quality and
safety, the Company may terminate the subscriber’s service. |
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| The subscriber must pay the Company for replacement or repair of damage to
the equipment or facilities of the Company caused by the negligence or willful
act of the subscriber, users, or others, by improper use of the services, or
by use of equipment provided by subscribers, users, or others. |
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| The subscriber must pay for the loss though theft of any the Company
equipment installed at subscriber’s premises. |
Responsibilities of the End User
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| The End User is responsible for compliance with the applicable regulations
concerning use as set forth in this Agreement. |
Limitations on Service
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| Service is offered subject to the availability of the necessary facilities
and/or equipment and subject to the provisions of this Agreement. |
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| The Company reserves the right to discontinue furnishing service when
necessitated by conditions beyond its control, when the customer is using the
service in violation of the provisions of this Agreement or in violation of
the law, or when the Company deems it necessary to take such action to prevent
fraud or other unlawful use of its Service. |
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| Title to all equipment provided by the Company under these regulations
remains with the Company. All regulations and conditions contained in this
Agreement shall apply to all such permitted assignees or transferees, as well
as all conditions of service. |
Use of Service
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| Service may be used for the transmission of communications by the customer. |
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| Service may not be used for any unlawful purpose. |
Payment and Billing of Customers
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| Service to customers is provided and billed on a monthly basis. The Company
will assign each new customer to a monthly billing cycle, and reserves the
right to reassign billing cycles at any time. Customers initiating service
after the start of a billing cycle will be billed at the next monthly billing
cycle. Any minimum billing cycle usage, usage requirements and minimum billing
usage charges shall be pro-rated based on 30 days per month in accordance with
the number of days the Company’s service was capable of being utilized by a
customer during a billing cycle. Billing is payable upon receipt. All bills
will have a delinquent date of not less that twenty (20) days from the bill
date. Late payment charges will accrue at a 5% interest rate. However, the
Company may demand immediate payment under the following circumstances: |
- Where service is terminated or abandoned.
- Where toll service is two (2) times greater than the customer’s average
toll usage as reflected on the customer’s bills for the three (3) previous
billing cycles, or, in the case of a new customer who has been receiving
service for less than four (4) billing cycles, where the toll service is
twice the estimated per billing cycle toll service.
- Where the Company has reason to believe that a business subscriber will
abandon service or bankruptcy is imminent for the subscriber.
- When a bill for the immediately preceding billing cycle is issued and the
subscriber continues to have an outstanding delinquency for payment twenty
(20) days beyond the bill date.
- The customer is responsible for payment of all charges for services
provided by the Company to the customer’s location and/or facility.
Charges for installation, removal, equipment, security deposits, moves and
rearrangements are payable upon demand by the Company. The initial billing
will include the charges, if any, for the first billing cycle’s minimum
charges. Thereafter, charges for services rendered will be based on actual
usage during a billing cycle will be billed each cycle in arrears.
- If a customer has no usage for three consecutive billing cycles, the
Company may: 1) stop sending such customer a bill until such customer uses
the Company’s system, and/or 2) cancel such customer’s authorization
code, if any. If the Company cancels such customer’s authorization code,
it will be reinstated at the customer’s request if the customer complies
with all of the Company’s then rules and regulations.
- All applicable taxes, charges, exaction, fees or the like that must be
paid to any governmental authority for the provision, use, consumption, or
enjoyment of service and which may be charged directly to the customer will
be separately stated on the customer’s bill and collected from the
customer.
- The name(s) of the customer(s) desiring to use the service must be set
forth in the application for service.
- If notice of a dispute as to charges is not received, in writing or by
telephone, by the Company within twenty (20) days after a billing invoice is
issued, the invoice shall be considered correct and binding on the customer.
- In the event that a check of draft tendered to the Company by a customer
or applicant is returned, a returned check fee will apply. The returned
check fee will be addressed when a check or instrument of payment issued by
a customer or applicant is returned without payment for any reason
whatsoever, including without limitation unauthorized signature, missing or
incorrect information, or insufficient or uncollected funds. The Company may
waive the returned check fee upon presentation of documentary evidence by
the customer that the return of the check was due to bank error. The amount
of the returned check charge is $25.00
Contested Charges
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| For consideration of any disputed charge, a user may submit in writing to
the Company, within twenty days of the date the bill is issued, the call
detail and the basis for any requested adjustment. The Company will promptly
investigate and advise the end user as to its findings and disposition. Any
disputed charges must be paid on a timely basis. |
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| The Company’s toll-free number for such requests is: 1-800-580-5585. |
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| The parties will attempt in good faith to resolve any dispute arising out of
or relating to this Agreement promptly through discussions between themselves
at an operational level. In the event resolution cannot be reached, such
dispute shall be negotiated between appointed counsel, directors or senior
executives of the parties who have authority to settle the dispute. The
disputing party shall give the other party written notice of the dispute and
if the parties fail to resolve the dispute within sixty (60) days, either
party may seek arbitration. All disputes arising out of or relating to this
Agreement shall be finally settle by binding arbitration in Austin, Texas and
shall be resolved under the laws of the State of Texas. |
Billing Entity Conditions
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| When billing functions on behalf of the Company are performed by
interexchange telephone companies, credit card companies or others, the
payment of charge conditions and regulations of such companies apply,
including any applicable interest and/or late payment charge conditions. |
Cancellation by Customer
- If the customer orders service requiring special facilities dedicated to
the customer’s use and subsequently cancels his order before the service
begins, before completion of the minimum period, or before completion of
some other period mutually agreed upon by the customer and the Company, a
charge will be made to the customer for the non-recoverable portions of
expenditures or liabilities incurred expressly on behalf of the customer by
the Company and not fully reimbursed by installation, removal, and per
billing cycle charges. If, based on the order, any construction has either
begun or been completed, but no service has been provided, the
non-recoverable cost of such construction shall be borne by the customer.
Cancellation by the Company
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| Without incurring liability, the Company may discontinue service or cancel
an application for service by written notice to the customer, upon the
customer’s failure to comply with any rule or failure to remedy any
deficiency for: 1) nonpayment of any sum due to the Company for more than
twenty (20) days after the Company bill date; 2) any violation of regulation
governing the services offered in this Agreement; 3) any violation of law,
rule, regulation or policy of any governmental authority having jurisdiction
over the service; 4) any order or decision of a court or other government
authority having jurisdiction that prohibits the Company from furnishing such
service; 5) the use of telephone service for any other location or purpose
that that described in the customer’s application for service. |
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| In addition the Company may refuse or discontinue service without notice in
the event of 1) customer use of equipment in such a manner as to adversely
affect the Company’s equipment or the Company’s service to others; 2)
tampering with the equipment furnished and owned by the Company; or 3)
unauthorized fraudulent use of service, the Company will, before restoring
service, require the customer to make, at his own expense, all changes in
facilities or equipment necessary to eliminate illegal use and to pay an
amount reasonably estimated a the loss in revenues and any expenses resulting
from such fraudulent use. |
Inspection, Testing and Adjustment
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| The Company may upon reasonable notice, make such tests and inspections as
may be necessary to determine whether the requirements of this Agreement are
being complied with in the installation, operation, or maintenance of the
customer or the Company’s equipment. The Company may interrupt the service
at any time, without penalty to itself, because of departures from any of
these requirements. |
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| Upon reasonable notice, the facilities provided by the Company shall be made
available to the Company for such tests and adjustments as may be necessary
for their maintenance in a condition satisfactory to the Company. No
interruption allowance will be granted for the time during which such tests
and adjustments are made. |
Interruption of Service
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| Credit allowances for interruptions of service that are not due to the
Company’s testing or adjusting, to the negligence of the customer, or to the
failure of channels, equipment and/or communications systems provided by the
customer, are subject to the general liability provisions set forth herein. It
shall be the obligation of the customer to notify the Company immediately of
any interruption in service for which a credit allowance is desired. Before
giving such notice, the customer shall ascertain that the trouble is not being
caused by any action or omission of the customer within his control, or is not
in equipment, if any, furnished by customer and connected to the Company’s
terminal. |
Restoration of Service
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| The use and restoration of service in emergencies shall be in accordance
with the priority system specified in Part 64, Subpart D of the Rules and
Regulations of the Federal Communications Commission. |
Interconnection
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| Service furnished by the Company may be interconnected with services or
facilities of other authorized communications common carriers and with private
systems, subject to the technical limitations established by the Company.
Service furnished by the Company is not part of a joint undertaking with such
other carriers. Any special interface equipment or facilities necessary to
achieve compatibility between facilities of the Company and other
participating carriers shall be provided at the customer’s expense. |
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| The customer is responsible for taking all necessary legal steps for
interconnecting his customer-provided terminal equipment or communications
systems with the Company’s facilities. The customer shall secure all
licenses, permits, rights-of-way, and other arrangements for such
interconnection. |
Indemnification
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| Each party shall indemnify, defend, release and hold harmless the other
party from and against any action, claim, court cost, damage, demand, expense,
liability, loss, penalty, proceeding, or suit, together with related attorneys
fees and costs, (collectively "Claims") for damage to property or
personal injuries including death, as a result of intentional negligent act or
omission on the part of the indemnifying party in connection with the
performance of this Agreement or other activities relating to the service, the
property, or the facilities which are subject of this Agreement. In the event
that a Claim relates to the negligence of both parties, the relative burden of
the Claim shall be attributed equitably between the parties in accordance with
the principles of comparative negligence. |
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| The term "property" shall include real, personal, tangible and
intangible property, including but not limited to, data, proprietary
information, intellectual property, trade secrets, trademarks or service
marks, licensing agreements, copyrights, patents and knowledge. |
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| The term "personnel injuries" shall also include claims of liable,
slander or invasion of privacy, arising directly or indirectly out of the
provision of Service pursuant to this Agreement. |
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| In the event any action is brought against the indemnified party, such party
shall immediately notify the indemnifying party in writing, and the
indemnifying party, upon request, shall assume the cost of defense on behalf
of the indemnified party. The indemnified party shall pay all expenses
incurred and satisfy all judgments rendered against the indemnified party,
provided that the indemnified party shall not be liable for any settlement
effected without its written consent. |
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| The indemnification section shall survive termination of this Agreement,
regardless of the reason for termination. |
Limitation of Liability
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| In no event will the Company be liable to the customer for any indirect,
special, incidental, consequential, exemplary, or punitive loss or damage of
any kind, including lost profits (whether or not the Company has been advised
of the possibility of such loss or damages) by reason of any act or omission
in its performance under this Agreement. |
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| Except as provided otherwise in this Agreement, the Company shall not be
liable to the customer or any person, firm or entity for any failure of
performance hereunder if such failure is due to any cause or causes beyond the
reasonable control of the Company. Such causes shall include without
limitation, acts of God, fire, explosion, any law, order, regulation,
direction, action or request of the United States Government or any other
government or military authority, national emergencies, insurrections, riots,
wars, strikes, lockouts or work stoppages, breaches or delays, or preemption
of existing services to restore service in compliance with the FCC’s Rules
and Regulations. |
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| The Company is not liable for any act or omission of any other company or
companies furnishing a portion of the service, facilities or equipment
associated with such service. |
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| Westel’s liability arising out of the provision of services, delays in the
restoration of services, or arising out of mistakes, accidents, omissions,
interruptions, errors or defects in transmission, shall be subject to the
limitations set forth in this Agreement. In no event shall the Company be
liable to the customer, customer’s own customers, or any third party with
respect to the subject matter of this Agreement under any contract, warranty,
negligence, strict liability, or other theory for any type of indirect,
consequential, incidental, reliance, actual, special or punitive damages, for
any lost profits, lost revenues, lost savings or any kind, arising out of or
relating to this Agreement whether or not the Westel customer was advised of
the possibility of such damages and whether or not such damages were
foreseeable. In no event shall Westel be liable to customers for any amount in
excess of the aggregate amount Westel has, prior to such time, collected from
customer with respect to service delivered hereunder. |
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| The Company shall not be liable for, and shall be fully indemnified and held
harmless by customer against any claim or loss, expense or damage, including
indirect, special or consequential damage, 1) for defamation, invasion of
privacy, infringement of copyright patent, unauthorized use of any trade mark,
trade names, or service mark, unfair competition, interference with or
misappropriation or violation of any contract, proprietary or creative right,
or any other injury to any person, property or entity arising from the
material, data, information, or content revealed to, transmitted, processed,
handled, or used by the Company under this Agreement; or 2) for connecting,
combining, or adapting the Company’s facilities with customer’s apparatus
or systems; or 3) for any act or omission of the customer; or 4) for any
personal injury or death of any person or for any loss of or damage to
customer’s premises or any other property, whether owned by the customer or
others, caused directly or indirectly by the installation, maintenance,
location, condition, operation, failure, or removal of equipment or wiring
provided by the Company, if not directly caused by negligence of the Company.
No agent or employee or any other carrier shall be deemed to be an agent or
employee of the Company. |
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| The Company shall not be liable for any charges or costs incurred by
customer for use of another Carrier’s services whether caused by failure of
the Company’s equipment or service or otherwise. |
Terminal Equipment
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| The Company’s facilities and service may be used with or terminated in
customer-provided terminal equipment or customer-provided communications
systems, such as teleprinters, handsets, or data sets. Such terminal equipment
shall be furnished and maintained at the expense of the customer, except as
otherwise provided. The customer is responsible for all costs at his premises,
including customer personnel, wiring, electrical power, and the like, incurred
in the use of the Company’s service. |
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| When such terminal equipment is used, the equipment shall comply with the
minimum protective criteria set forth in Subpart B of the Federal
Communications Commission’s Rule (47 C.F.R. 68.100 – 68.110) and shall not
interfere with service furnished to other customers. These rules require that
terminal equipment either be registered in accordance with FCC rules or
connected through registered protective circuitry. Additional protective
equipment, if needed, shall be employed at the customer’s expense. |
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| The customer shall also comply with the minimum protective criteria
generally accepted in the telephone industry and another appropriate criteria
as may be prescribed by the Company. The customer shall ensure that his
terminal equipment is properly interfaced with the Company’s facilitates,
and are of proper mode, bandwidth, power, data speed, and signal level for the
intended use of the customer, and the signals do no damage the Company’s
equipment, injure personnel or degrade service to other customers. |
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| If the customer fails to maintain and operate his terminal equipment
properly, resulting in the occurrence or possibility of harm to the
Company’s equipment, personnel, or the quality of service to other
customers, the Company may, upon written notice, require the use of protective
equipment at the customer’s expense. If this fails to produce satisfactory
quality and safety of service, the Company may, upon written notice, terminate
the customer’s service. |
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| The customer shall not remove, dismantle, modify, repair or otherwise tamper
with any of the Company-owned terminal equipment, microprocessors or
microprocessor call accounting system (the "Company Equipment".)
Customer shall be liable for any loss or damage to the Company Equipment from
fire, flood, storm, negligence, or other actions of the customer or any third
party, or from any cause whatsoever, other that the actions of the Company,
normal wear and tear resulting from the proper use of the Company Equipment
excepted. The customer shall, at reasonable times, provide the Company access
to its premises for the purpose of installing, maintaining, inspecting and
removing Company equipment. |
Taxes and Additional Surcharges
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| All state and local taxes (i.e., gross receipts tax, sales tax, excise tax,
municipal utilities tax) are listed as separate line items and are not
included in the quoted rates listed herein. |
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| The Company may adjust its rates and charges or impose additional rates and
charges in order to recover amounts it is required or permitted by
governmental or quasi-governmental authorities to collect from other or pay to
other in support of statutory or regulatory funds or programs (government
charges). Examples of such Governmental Charges include, but are not limited
to, Universal Service funding, utility and other fees imposed on
communications providers such as end user common line charges, carrier access
charges and compensation payable to payphone service
providers for use of their payphones to access the Company’s service. |
Assurances
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| Westel shall, at its sole discretion obtain Security Deposits and place
Credit Limits on a customer’s account. The Credit Limit shall generally be
three (3) times the customer’s estimated monthly usage. The Security Deposit
shall generally be equal to nine (9) times the customer’s estimated monthly
usage. If at any time during the term of this Agreement there is a material
and adverse change in Customer’s financial condition or payment history, as
determined in Westel’s sole discretion, then Westel may increase the amount
of deposit (the "Security Deposit"), pursuant to Westel’s standard
procedures, as security for the full and faithful performance of customer of
the terms, conditions, and covenants of this Agreement. |
Governing Law
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| This Agreement shall be governed by the laws of the State of Texas without
regard to its principles of choice law. |
Waiver of Breach not Deemed Continuing
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| The waiver by either party of a breach or violation of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach hereof. |
Bankruptcy
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| In the event of the bankruptcy or insolvency of either party, or if either
party makes an assignment for the benefit of creditors, or takes advantage of
any act or law for relief of debtors, the other party shall have the right to
terminate this Agreement without further liability or obligation. |
Business Relationship
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| This Agreement shall not create any agency, employment, or joint venture,
partnership, or fiduciary relationship between the parties. Neither party
shall have the authority to, nor shall either party attempt to, create and
obligation on behalf of the other party. |
Assignments and Waivers
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| Customers may not modify or assign this Agreement. In its sole discretion,
the Company may assign this Agreement. |
- No waiver of this Agreement or any of its terms and conditions is valid.
Disclaimer of Warranties
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| Unless otherwise provided, Westel makes no warranty to customers or any
other person or entity, whether express, implied, or statutory, as to the
description, quality, merchantability, completeness, or fitness for any
purpose of any service provided hereunder or described herein, or as to any
other matter, all of which warranties by Westel are hereby excluded and
disclaimed. For purposes of this section, the term "Westel" shall be
deemed to include Westel, Inc., its affiliates, shareholders, directors,
officers and employees, and any person or entity assisting Westel in its
performance pursuant to this Agreement. |
Subject to Law
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| This Agreement is subject to, and customer agrees to comply with, all
applicable federal and state laws and regulations, rulings and orders of
governmental agencies, including but not limited to, the Commissions Act of
1934, The Telecommunications Act of 1996, The Rules and Regulations of the
Federal Communications Commission (FCC) and state and public utility or
service commissions (PSC), tariffs and the obtaining and continuance of any
required certification, permit, license, approval, or authorization of the FCC
and PSC or any governmental body, including but not limited to regulations
applying to Letters of Agency (LOA). |
FCC Permits, Authorization and Filings
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| Westel shall take all necessary and appropriate steps to procure the
necessary authorizations and approvals, if any, from the FCC or any other
federal or state agency required to deliver the Services hereunder to the
Customer. In the event that Westel cannot obtain all necessary federal, state,
or local authority to provide the Services hereunder, Westel shall promptly
give written notice to Customer and such notice shall constitute termination
of this Agreement without further liability or obligation of either party. |
Confidential Information
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| During the term of this Agreement and for two years thereafter, neither
party shall disclose any terms or pricing contained in this Agreement or any
confidential information disclosed by the other party. Confidential
information shall remain the property of the disclosing party and shall be
labeled as either "Confidential" or "Proprietary". |
Force Majeure
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| Westel shall not be liable for any failure of performance hereunder due to
causes beyond reasonable control including, but not limited to: acts of God,
fire, explosion, vandalism, cable cut, flood, storm, or other similar
catastrophe; any law, order, regulation, direction, action or request of the
United States government or any governmental, judicial, regulatory, or civil
or military authority having jurisdiction over the parties; national
emergencies; insurrections; riots; wars; or strikes, lock outs, or work
stoppages. |
Survival
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| The covenants and Agreements contained in this Agreement with respect to
payment of amounts due, confidentiality, liability and indemnification shall
survive termination of this Agreement, regardless of the reason of
termination. The rights and obligations under this Agreement shall survive any
merger or sale of either party and shall be binding upon the successors and
permitted assigns of each party. |
Obligations Several and Not Joint
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| Each party shall be responsible only for its own performance under the
Agreement (including any attachments, exhibits, schedules or agendas) are not
for that of any other party. |
Cancellation
- If the customer either voluntarily cancels their account or if the Company
cancels your service for any reason set forth above, the Company will have
no obligation whatsoever to assist you in any respect in switching from the
Company to another carrier.
DESCRIPTION OF SERVICES
Timing of Calls
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| The customer’s usage charge is based on the actual usage of the
Company’s network. A call is terminated when the switch determines the
calling party hangs up. |
Calculations of Distance
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| Usage charges for all mileage sensitive products are based on the airline
distance between rate centers associated with the originating and terminating
points of the call. The airline mileage between rate centers is determined by
applying the formula below to the vertical and horizontal coordinates
associated with the rate centers involved. The Company uses the rate centers
and associated vertical and horizontal coordinates that are produced by
Telecordia Technologies in their NPA-NXX V&H Coordinate Tables. |
General Description of the Company’s Long Distance Communication Services
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| There are two types of "customer-billed" services offered to the
Company customers in this Agreement: Common shared access switched service
hereinafter referred to as Message Toll Service or MTS, and 800 Travel
Service. The customer’s total monthly use of the Company’s service is
charged at the applicable rates per minute set forth herein and may be based
on the airline mileage between the points. The applicable rates for these
services are set forth below. |
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