INTERSTATE AND INTERNATIONAL
This INTERSTATE AND INTERNATIONAL LONG DISTANCE SERVICE AGREEMENT ("AGREEMENT") contains the general terms and conditions of Millry Communication, Inc.'s dba Millry Long Distance (the "Company") provision of your Interstate Long Distance Service and your International Long Distance Service (together the "Service") beginning January 28, 2002. The specific rates, charges and other terms and conditions not set forth herein that govern the specific services you receive from the Company ("Service Descriptions and Rates") are incorporated into the AGREEMENT by reference. Throughout the AGREEMENT, our use of the term "you or "your" refers to the individual or entity using or paying for the Service. YOU ARE NOT REQUIRED TO TAKE ANY ACTION. UNDERSTAND THAT YOUR USE OF THE COMPANY'S SERVICE CONSTITUTES YOUR ACCEPTANCE OF THESE RATES, TERMS, AND CONDITIONS.
These general terms and conditions are as follows:
1. AVAILABILITY OF SERVICE. Subject to the availability of facilities and subject to transmission and like condition, Service is available for your use twenty-four (24) hours a day, seven (7) days a week. The specific rates, charges and other terms and conditions not set forth herein for the specific Service you receive ("Service Descriptions and Rates") from the Company may be accessed by visiting the Company's website at www.millry.net or the Company's office at 209 Highway 17 North, Millry, Alabama 36558. UNDERSTAND THAT THIS AGREEMENT INCORPORATES BY REFERENCE THE SPECIFIC RATES, CHARGES, AND OTHER TERMS AND CONDITIONS SET OUT IN YOUR SERVICE DESCRIPTIONS AND RATES.
2. 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.
3. RATES AND CHANGES IN RATES, TERMS AND CONDITIONS. Current rates, charges and other service terms and conditions not set forth herein may be found in your Service Descriptions and Rates. The Company reserves the right to make price changes for Service in your Service Descriptions and Rates or changes in the terms and conditions in the AGREEMENT or your Service Descriptions and Rates upon providing at least 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. You agree that you will be bound by any change in the rates, terms and conditions of the Service unless you cancel your Service as provided for in Section 13 below prior to the effective date of the change.
The Company maintains this AGREEMENT and Service Descriptions and Rates as updated from time to time, in its office located at 209 Highway 17 North, Millry, Alabama 36558 and on its website at www.millry.net.
4. LIABILITY OF THE COMPANY. Subject to the provisions of Section 12 of the AGREEMENT (incorporating by reference your Service Descriptions and Rates), 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 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 two (2) consecutive 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. 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 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 indirect, incidental, special, punitive, exemplary, or consequential damages.
5. 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.
6. 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.
7. PAYMENT. 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.
In order to safeguard its interests, the Company may also require you to make a suitable deposit. Such deposit shall not exceed two times your estimated monthly charges. Interest will be paid by the Company on your deposit at the rate of seven percent (7%) annually.
The Company will return your deposit as follows: (a) when an application for Service has been canceled 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 account is in good standing for twelve (12) 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 next month's billing that follows said twelve-month (12-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 the terms and conditions of this AGREEMENT (which incorporates by reference your Service Descriptions and Rates).
Once Service is activated, you are responsible for paying all charges associated with the Service. Fixed monthly Service charges are billed in arrears and usage based charges are billed in arrears. All bills from the Company are due upon receipt. The Company may apply an administrative charge of one and one-half percent (1.5%) per month to each of your balances that remain unpaid for one calendar month following the invoice date. Subject to Section 11 of this AGREEMENT, you are responsible to pay all of the Company's reasonable costs and expenses of collection, including bank charges and reasonable attorneys' fees.
Once Service is activated, an advance payment may be required from you by the Company if excessive toll occurs and the Company reasonably believes there is a credit risk, either upon written notice or verbal notification later confirmed in writing. The amount of the advance payment will not exceed two (2) months estimated charges and will be applied against your next month's charges. A new advance payment may be collected for the next month, if necessary.
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 will bill you a bad check charge of twenty dollars ($20.00). In addition, you will be required to replace the returned check with a payment in cash or equivalent to cash, such as a cashier's check, certified check or money order. Notwithstanding the bad check charge provision as set forth in Section 7, the Company may disconnect your Service in the event of returned payment, as set forth in Section 14 of the AGREEMENT.
8. CALCULATION OF USAGE. Charges for usage-based Service offered by the Company begin when the connection is established (when the call is answered). Charges for usage-based Service offered by the Company end when one of the parties disconnects from the call. Except for Travel Calling Card Service, charges are assessed in increments of six (6) seconds, with a minimum 30-second call duration and all calls rounded up to the next highest six (6) second increment.
REFER TO THE SERVICE DESCRIPTIONS AND RATES APPLICABLE TO YOUR SPECIFIC SERVICE (for example, Outbound Long Distance Service, Inbound Toll-Free Number Service, Travel Calling Card Service, etc.) FOR ANY PLAN SPECIFIC USAGE CHARGES AND OPTIONS.
9. 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.
10. BILLING ENTITY CONDITIONS. When billing for the Company's Service is performed by local exchange 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.
11. BINDING ARBITRATION. TO THE EXTENT THAT ANY DISPUTE IS NOT SUBJECT TO THE JURISDICTION OF THE ALABAMA 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 YOUR SERVICE DESCRIPTIONS AND RATES), AND BREACH THEREOF OR YOUR SERVICE AS PROVIDED HEREUNDER.
Any controversy or claim arising out of or relating to this AGREEMENT (incorporating by reference your service Descriptions and Rates), the breach thereof or your Service as provided hereunder, and not otherwise subject to the jurisdiction of the Alabama 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 the Section 11, 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 11. 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 Alabama 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 your Service Descriptions and Rates), 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 Millry Communications, Inc., P.O. Box 45, Millry, Alabama 36558 or verbally using the Company's toll free number, 1-888-227-5710. 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 the Section 11.
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 Montgomery, Alabama. 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 ALABAMA 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.
12. TESTING AND INSPECTIONS. The Company may, upon reasonable notice, make such tests and inspections as may be necessary to determine whether the requirements of the AGREEMENT (which incorporates by reference your Service Descriptions and Rates) are being complied with in the installation, operation, or maintenance of your or the Company's Service. The Company may interrupt Service at any time, without penalty and liability, due to the departure from or reasonable suspicion of the departure from any of these terms and conditions. Upon reasonable notice, the facilities provided by you 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. In the event of a Service interruption during such tests and inspections, you will cooperate in good faith to the extent necessary to reinstate the Service. No interruption of Service allowance will be granted for the time during which such tests and adjustments are made.
13. DISCONTINUANCE OF SERVICE OR CHANGES IN SERVICE BY YOU. You may discontinue or terminate your service by providing written notice, to the Company, Attention Contract Manager, P.O. Box 45, Millry, AL 36558 or by telephone to the Company Customer Service Department at 1-888-227-5710. You shall be responsible for all amounts due, including, without limitation any specified administrative charge imposed as a result of early discontinuance (imposed as a charge and not as a penalty) as set forth in your Service Descriptions and Rates.
You may also make changes or alterations in your Service by written or telephonic notice as set forth above.
14. DISCONTINUANCE OF SERVICE BY THE COMPANY. The Company may discontinue or terminate your Service as set forth below: (a) for nonpayment: The Company , by five (5) days written notice to you, may discontinue Service or cancel an application for Service without incurring any liability when there is an unpaid balance for Service that is more than thirty (30) days overdue; (b) for returned checks: If your check for Service is returned unpaid for any reason, after two attempts at collection, the Company may discontinue Service in the same manner as provided for nonpayment of overdue charges; (c) for lack of use: The Company, by written notice to you, may discontinue Service in the same manner as provided for nonpayment of overdue charges if after sixty (60) days Service has not been used; (d) for any violation of law or any of the provisions governing the furnishing of Service under this AGREEMENT (incorporating by reference your Service Descriptions and Rates): You shall be subject to discontinuance of Service, without notice, for any violation of any law, rule, or regulation or policy of any governmental authority having jurisdiction over Service, or by reason of any order or decision of a court or other government authority having jurisdiction which prohibits the Company from furnishing such Service; or, (e) for the Company to comply with any order or request of any governmental authority having jurisdiction.
If the Company terminates Service as set forth above, you shall pay to the 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 above.
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.
a. Entire Agreement. This AGREEMENT (which incorporates by reference your Service Descriptions and Rates) 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.
b. Governing Law. This AGREEMENT (which incorporates by reference your Service Descriptions and Rates) 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 Alabama without giving effect to its choice of law rules, except that the arbitration provisions in Section 11 will be governed by the Federal Arbitration Act.
c. Savings Clause. Any term or provision of the AGREEMENT (which incorporates by reference your Service Descriptions and Rates) that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
d. No Third-Party Beneficiaries. This AGREEMENT (which incorporates by reference your Service Descriptions and Rates) shall not confer any rights and remedies upon any person other than you and the Company and any permitted assigns.
e. Assignment. 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 which consent shall not be unreasonably withheld. 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 the AGREEMENT (which incorporates by reference your Service Descriptions and Rates) shall apply to all such assignees or transferees. Any unauthorized assignment by you shall become null and void except as ratified by Company.
The Company may assign all or part of its right or duties under this Agreement without notifying you.
f. Waiver. The Company's failure to insist upon strict performance of the terms of this AGREEMENT (incorporating by reference your Service Descriptions and Rates) or to exercise any rights or remedies set forth in the same shall not waive any of the Company's rights to require strict performance of such terms, to assert any of the same rights, or to rely on any such terms any time thereafter.
Again, these are the rates, terms and conditions governing your Service (incorporating by reference your Service Descriptions and Rates), effective January 28, 2002. The rates, terms and conditions of your intrastate long distance service are also still governed by tariff on file with the Alabama Public Service Commission, which has also adopted regulations which govern the manner in which the Company bills for all of its services.