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Long Distance Terms and Conditions
TELEGUAM HOLDINGS, LLC D/B/A GTA
Terms and Conditions of Service
Applicable to Off-Island Long Distance Services
Effective April 18, 2005
| 1. |
AGREEMENT
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1.1 |
General Application
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1.1.1 |
These additional terms and conditions (“Terms and Conditions”), and the accompanying rates, together with the GTA Master Agreement with TeleGuam Holdings, LLC d/b/a GTA (the “Company”) constitute Customer’s agreement (“Agreement”) with the Company for any Services you purchase from the Company.
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1.1.2 |
Service is offered subject to the availability and operational limitations of the Company network as well as necessary systems, facilities, and Equipment.
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1.1.3 |
Notwithstanding any other provision of the Agreement, the Agreement applies only to Services provided to Customer, and shall not apply to offerings by Customer of services to any third party or of Customers’ customers. The provision of Services by the Company under the Agreement does not constitute a joint undertaking with Customer for the furnishing of any service or capacity to a third party. Whenever Service provided by Company under the Agreement is connected to facilities provided by another person or entity, the regulations, terms and charges of such other person or entity shall apply for the facilities provided by such other person or entity.
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1.2 |
Definitions
“Agreement” means the GTA Master Agreement and these Terms and Conditions.
“Company” refers to TeleGuam Holdings, LLC d/b/a GTA, a Delaware limited liability company and its affiliates.
“Company Network” means the Company’s copper and optical cable and optical/electronic equipment used to deliver Services to its customers.
“Completed call” is a call that the Company’s network has determined has been answered by a person, answering machine, fax machine, computer modem device, or other answering device.
“Equipment” means equipment that the Company sells or leases to Customer under the Agreement.
“FCC” means the Federal Communications Commission.
“Service” means any telecommunications, information, enhanced, or computer service(s) provided by the Company under the Agreement.
“Site(s)” means Customer locations where the Company is to perform Services.
“Software” means computer programs and related object code licensed by the Company to Customer, including any software licensed with or separately from Equipment.
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| 2. |
RULES AND REGULATIONS
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2.1 |
Obligations of the Customer
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2.1.1 |
In compliance with the obligations imposed on the Company by the FCC, Customer represents and warrants, on behalf of itself and its affiliates and agents, that it does not intend to resell the Services or engage in other activity that would require the Company to verify Customer's authorization as a reseller of the Services as required by 47 CFR 64.1195. If Customer or its affiliates, subsidiaries, or agents breach these representations or warranties, this Agreement will terminate immediately and subject Customer to the liability imposed for termination by the Company for material breach.
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2.1.2 |
The Customer shall be responsible for:
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A. |
Providing the Company with timely access to Customer information, facilities or equipment as the Company reasonably requires to provide the Services and keep the Company informed on developments in Customer’s business or operations that may impact Service. The Company may rely on any information provided by Customer and assumes no liability for any damages or costs that result from errors or omissions in such information. The Company may share Customer information and Confidential Information (including billing and usage information for Services purchased) with the Company’s Affiliates and inform Customer of other Company product/service offerings.
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B. |
Reimbursing the Company for damage to, or loss of, the Company’s facilities or equipment caused by the acts or omissions of the Customer; or the Customer’s noncompliance with the Agreement; or by fire or theft or other casualty on the Customer’s premises unless caused by the negligence or willful misconduct of the employees or agents of the Company.
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C. |
Providing at no charge, as specified from time to time by the Company, any needed space and power to operate the Company’s facilities and Equipment installed on the Customer’s premises and providing battery power or other uninterruptible power sources if required by the Customer.
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D. |
Maintaining the Site in a suitable and safe working environment, free of Hazardous Materials. Customer represents and warrants that the area of the Site where the Company performs Services is free of Hazardous Materials. Customer shall pay the Company for any damages, costs, fines or penalties the Company incurs as result of the presence or release of such Hazardous Materials. If the Company encounters any such Hazardous Materials, the Company may terminate this Agreement or suspend performance until Customer removes and cleans up at its expense Hazardous Materials in accordance with this Agreement and applicable law. For purposes of this Agreement, “Hazardous Materials” means any substance whose use, transport, storage, handling, disposal, or release is regulated by any law related to pollution, protection of air, water, or soil, or health and safety.
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E. |
Complying with all laws and regulations applicable to, and obtaining all consents, approvals, licenses and permits as may be required with respect to, the location of the Company’s facilities and equipment in, on or around any Customer premises for the purpose of installing, inspecting, maintaining, repairing, or removing the facilities or equipment of the Company.
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F. |
Making Company facilities and equipment available periodically for installation, inspection and maintenance purposes at times agreeable to both the Company and the Customer. No allowance for interruptions in Service will be made for the period during which Service is interrupted for such purposes.
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G. |
Making available on-site technical personnel qualified to assist the Company in its installation, testing and maintenance obligations, and providing the Company with information pertaining to Customer’s premises and equipment, including specifications, technical publications, drawings and blueprints.
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H. |
Providing back-up power, if desired, to any devices or network elements used to access the Services of Company. Customer understands and agrees that, if access to the Services of the Company is required in the case of commercial power outages, that Customer is solely responsible for providing back-up power to any switching equipment, local area network equipment, Company Equipment, and IP network equipment and other equipment on its premises to the extent these may be used to access Services of the Company. Customer also understands and agrees that if third party networks are used to connect Customer and Company, then Customer shall rely on such third parties and expressly not on Company, its affiliates, subsidiaries, parent companies, agents, network service providers, partners, or employees for any assurance of access to Services.
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2.2 |
Indemnification
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2.2.1 |
Customer will indemnify and defend the Company, its Affiliates and its respective directors, officers, employees, agents and their successors (“Indemnitees”) from and against any and all claims and related loss, liability, damage and expense, including attorneys’ fees and court costs, (collectively “Damages”) arising from:
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A. |
Third party claims related to improper use of Services or information or any content or data transmitted over any Company Network or facilities, including any claims of libel, slander, infringement of intellectual property rights, publication of obscene, indecent, offensive, threatening, intimidating or harassing material, infringement of data protection legislation or any other injury to a person or property in connection with the data, information or content transmitted by Customer over the Company’s Services;
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B. |
Any failure of any representation or warranty made by Customer or Customer’s officers, directors or employees, hereunder to be true and correct in any material respect,
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C. |
Any failure of Customer, or Customer’s officers, directors or employees, to perform or observe its covenants and agreements hereunder,
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D. |
Any violation of or failure to comply with applicable laws by Customer or Customer’s officers, directors or employees,
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E. |
Any third-party claim arising out of or due to Customer’s breach or violation of its obligations hereunder;
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F. |
Any third-party claim for infringement of any copyright, patent, trade secret, or any proprietary infringement of any copyright, patent, trade secret, or any proprietary or intellectual property right of any third party, arising from any act or omission by the Customer, its employees, agents, representatives, contractors or invitees;
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G. |
Any loss, destruction or damage to property of the Company or any third party, or injury to persons, including, but not limited to, employees or invitees of either the Company or the Customer, to the extent caused by or resulting from the negligent or intentional act or omission of the Customer, its employees, agents, representatives, contractors or invitees; or
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H. |
any suits, claims, actions or proceedings incident to or arising out of the foregoing.
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2.2.2 |
The Company will indemnify and defend Customer and its Indemnitees from and against any Damages finally awarded or paid in settlement based on a claim that any Service, or Company-provided Equipment and Software (collectively, “Materials”) infringe a U.S. patent or copyright. If a final injunction or judgment is awarded against Customer prohibiting use of Service/Materials by reason of infringement of a U.S. patent or copyright, the Company will at its option and expense either (a) procure the right for Customer to continue using the Service/Materials; (b) obtain and deliver equivalent non-infringing Service/Materials; or (c) terminate the infringing Service/Materials and refund to Customer amounts paid for infringing Service/Materials, less a reasonable charge for use.
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2.2.3 |
An indemnified Party shall provide the indemnifying Party with notice for any claim of indemnity and the indemnifying Party shall have complete authority to assume the sole defense and settlement of such claim. The indemnified Party may participate in the settlement or defense at its own expense and shall reasonably cooperate to facilitate the defense and settlement of such claims.
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2.3 |
Liability of the Company
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2.3.1 |
In view of the fact that the Customer has exclusive control over the use of Service and facilities furnished by the Company, and because certain errors incident to the Services and to the use of such facilities of the Company are unavoidable, Services and facilities are furnished by the Company subject to the terms, conditions and limitations herein specified:
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2.3.2 |
Service Irregularities
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A. |
The liability of the Company for damages arising out of mistakes, omissions, interruptions, delays, errors or defects in transmission, or failures or defects in facilities furnished by the Company, occurring in the course of furnishing Service or other facilities and not caused by the negligence of the Customer, shall in no event exceed an amount equivalent to the proportionate charge to the Customer for the Service or facilities affected during the period such mistake, omission, interruption, delay, error or defect in transmission, or failure or defect in facilities continues after notice and demand to Company.
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B. |
The Company shall not be liable for any act or omission of any connecting carrier, underlying carrier or local exchange company; for acts or omission of any other providers of connections, facilities, or service; or for any act or omission of the Customer, its employees, agents, representatives, contractors or invitees or failure of equipment, facilities or connection provided by the Customer.
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C. |
Section 2.12 sets forth the Customer’s entire remedy in the event of a Service interruption, and in no event shall Company be liable for any direct, incidental, indirect, special, punitive, exemplary, or consequential damages (including lost revenue or profit) of any kind whatsoever, regardless of cause or foreseeability thereof.
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2.3.3 |
Excused Performance
The Company shall not be liable for any delay or failure of performance of any part of the Agreement to the extent that such failure or delay is caused by the Customer or an event of Force Majeure, including but not limited to, fire, flood, explosion, war, strike, embargo, governmental regulations, acts of civil or military authority, Acts of God, acts or omissions of vendors and suppliers, or other causes beyond the Company’s reasonable control. For the duration of the excused performance, the duties of the Company shall be abated and shall resume without liability thereafter.
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2.3.4 |
Defacement of Premises
The Company is not liable for any defacement of, or damage to, the Customer’s premises resulting from the furnishing of Service or the attachment of Equipment and facilities furnished by the Company on such premises or by the installation or removal thereof, when such defacement or damage is not the result of negligence of the Company. For the purpose of this paragraph, no agents or employees of the other participating carriers shall be deemed to be agents or employees of the Company except where contracted by the Company.
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2.3.5 |
Facilities and Equipment in Explosive Atmosphere, Hazardous or Inaccessible Locations
The Company does not handle, remove or dispose of, nor does the Company accept any liability for, any Hazardous Materials at the Site. The Company does not guarantee nor make any warranty with respect to installations provided by it for use in an explosive atmosphere. Company shall be indemnified, defended and held harmless by the Customer from and against any and all claims, loss, demands, suits, or other action, or any liability whatsoever, whether suffered, made, instituted or asserted by the Customer or by any other party, for any personal injury to or death of any person or persons, and for any loss, damage or destruction of any property, including environmental contamination, whether owned by the Customer or by any other party, caused or claimed to have been caused directly or indirectly by the installation, operation, failure to operate, maintenance, presence, condition, location, use or removal of any equipment or facilities or the Service and not due to the gross negligence or willful misconduct of the Company.
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2.3.6 |
Service at Outdoor Locations
The Company reserves the right to refuse to provide, maintain or restore Service at outdoor locations unless the Customer agrees in writing to indemnify and save the Company harmless from and against any and all loss or damage that may result to Equipment and facilities furnished by the Company at such locations. The Customer shall likewise indemnify and save the Company harmless from and against injury to or death of any person which may result from the location and use of such Equipment and facilities.
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2.3.7 |
Warranties
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A. |
With respect to maintenance or professional Services, the Company warrants that the Services will be performed in a professional and workmanlike manner.
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B. |
The Company further warrants that it has good title to the Equipment and that the Equipment will perform in accordance with the manufacturer’s published specifications during the warranty period set forth by such manufacturer and the Company will use commercially reasonable efforts to subrogate any Company claims or rights against the Equipment manufacturer to Customer.
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C. |
The Company makes no warranties and assumes no liability for any defects or nonconformities caused by non-Company approved modifications or alterations; misuse, accident or neglect; or Customer failure to comply with Company or Company vendor specifications or requirements for use.
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D. |
These warranties do not cover and the Company has no responsibility for (a) installation, maintenance or operation of non-Company provided equipment or software or impairment caused by such equipment/software; (b) compatibility of such equipment/software with Company-provided Equipment or Software; or (c) modifications, alternations or repairs to Equipment or Software by persons other than the Company or its authorized agents.
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E. |
EXCEPT FOR THE FOREGOING PARAGRAPHS (A) THROUGH (D), THE COMPANY MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THE MATERIALS, SERVICE, EQUIPMENT OR SOFTWARE, ALL OF WHICH ARE DISCLAIMED. EXCEPT AS PROVIDED HEREIN, ALL MATERIALS, EQUIPMENT, SERVICES AND SOFTWARE ARE PROVIDED “AS IS” TO THE FULL EXTENT PERMITTED BY LAW.
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2.4 |
Application for Service
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2.4.1 |
Contract Period:
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A. |
Except as otherwise provided or agreed, the minimum contract period is one month for all Services furnished and contract periods shall be automatically renewed for successive terms equal in duration to the initial term at each expiration unless and until either party provides thirty (30) days notice of non-renewal to the other party.
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B. |
The Company may require a minimum contract period longer than the standard minimum term in connection with special, non-standard types or arrangements of equipment, or for unusual construction, necessary to meet special demands for Service.
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C. |
The contract period may be longer than the minimum term if agreed to in writing by the parties. The term may be set forth in the Agreement.
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2.4.2 |
Cancellation of Service
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A. |
Where the applicant cancels an order for Service prior to the start of the installation or special construction of facilities, no charge shall apply, except to the extent the Company incurs a service order or similar charge from a supplying carrier or contractor, if any, prior to the cancellation.
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B. |
Where the Company has started the installation of facilities prior to cancellation, the Customer shall be responsible for all expenses incurred by the Company.
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2.4.3 |
Installation of Service
The Company shall strive to install service for new applicants as soon as possible. If the Company cannot meet its objectives with regard to installation of new service, it shall inform the customer of the delay and whether interim service is available.
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2.4.4 |
Refusal of Service
The Company may decline to serve an applicant for the following reasons:
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A. |
The applicant’s installation or equipment is inadequate, hazardous or of such character that satisfactory service cannot be provided.
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B. |
The applicant is indebted to the Company.
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C. |
The applicant refuses to make a deposit if required under these rules.
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D. |
An applicant applies for service in the name of another person or legal entity, or an applicant applies for service using a fictitious name or the name of another member of the same household, for the purpose of avoiding payment of an unpaid bill for telephone service previously furnished.
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2.5 |
Payment for Service
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2.5.1 |
Bills are sent to the Customer's current billing address no later than thirty (30) days following the close of billing. For usage sensitive Switched Services, call detail is available with the bill. Payment in full is due by the due date disclosed on the bill. Charges are payable only in United States currency. Payment may be made by check, money order, or cashier's check which should be made payable as named on the bill and sent to the address as listed on the bill.
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2.5.2 |
Customer shall be responsible for any applicable federal, state or local sales, use, excise, gross receipts, or other taxes, fees, assessments or similar amounts in connection with the Services furnished to Customer, including without limitation universal service fees. Customer shall pay all such amounts directly to the taxing authority unless the taxing authority requires that the Company collect and remit payment, in which event Customer shall pay said amounts to the Company and the Company shall remit such amounts to the authority. Customer and the Company shall cooperate in taking all reasonable actions necessary to minimize, or to qualify for exemptions from, any such taxes, duties or liabilities, including the furnishing of certifications that purchases by Customer are for purposes of resale. Customer shall provide all information to the Company of any exemption of sales, use or other tax claimed by Customer and shall immediately notify the Company of any change in Customer’s tax status.
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2.5.3 |
The Company may adjust its rates and charges or impose additional rates or surcharges on Customer to recover amounts that it is required by governmental or quasi-governmental authorities to collect on their behalf or to pay to others in support of statutory or regulatory programs, plus amounts to recover the administrative costs associated with such charges or programs. The Company may impose additional charges, surcharges and/or establish new rate elements to recover amounts the Company is charged: (1) for terminating or originating a call to wireless carriers, (2) for delivering calls to or accepting calls from carriers that charge access rates higher than the incumbent wireline access carriers, or (3) for delivering calls to or accepting calls from carriers that impose new or additional charges after execution of the Agreement, plus amounts to recover the administrative costs associated with such additional charges.
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2.6 |
Customer Deposits
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2.6.1 |
The Company may require an applicant for service to establish satisfactory credit. Upon application for Service, the Customer shall be deemed to have authorized the Company to obtain such routine credit information and verification as the Company shall require in accordance with its then existing credit policies. Establishment of credit shall not relieve the Customer of the requirements for the prompt payment of bills and does not constitute a waiver or modification of the Company’s right to discontinue Service for nonpayment of any sums due the Company for Service rendered.
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2.6.2 |
The Company may require a deposit in cash, letter of credit or security agreement for the purpose of guaranteeing payment for services rendered. The Company may also require an applicant for service who previously has received Service from the Company at the same or different address and whose service has been discontinued for nonpayment of bills to pay all amounts due the Company and reestablish credit before providing service to that Customer.
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2.6.3 |
The required deposit shall not exceed an amount equivalent to two and one-half times the Customer’s anticipated monthly charges. The Company may base the deposit on actual or anticipated usage and may require the subscriber to increase the amount of the deposit if the subscriber’s actual bills are found to warrant such an increase.
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2.6.4 |
The Company will not pay interest on Customer deposits.
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2.6.5 |
Deposits will be returned to Customer under the following circumstances:
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A. |
When an application for Service has been canceled prior to Service activation, the deposit will be applied to any existing charges incurred prior to cancellation of Service.
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B. |
Within thirty (30) days following settlement of the Customer’s account if and only to the extent that the deposit exceeds any unpaid charges for installation and Service to the Customer.
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C. |
Upon discontinuance of Service if and to the extent that the Deposit exceeds any unpaid charges for installation and Service to the Customer.
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D. |
After two (2) years of Service, provided that the Customer’s Service has not been suspended or disconnected for non-payment during the previous two-year period. If the deposit has been returned to the Customer, the Company may require another deposit if the customer is suspended or disconnected for non-payment.
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2.7 |
Advance Payments
When making application for service, the applicant may be required to pay at the time the application is accepted, the service connection charge, if applicable, a deposit as provided in these Terms and Conditions, and the first month’s charges for exchange service. The provisions of this paragraph affect the initial payment for initial service only and not the subsequent billing and collection practices as elsewhere provided in these Terms and Conditions. Customers may make advanced payment of business or residential long distance service. If the customer prepays eleven months of charges, the charges for the twelfth month will be waived. If the customer cancels service before the end of the eleventh month, the Company will refund the unused portion of the prepayment.
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2.8 |
Late Payment Charges
The Company will consider delinquent and apply late payment charges on bills not paid within thirty (30) days of the billing invoice date. The Company will impose a late payment fee of the lesser of 1.5% per month or the maximum amount allowed by law on any amounts past due from the date such amounts are due and payable until the date payment is received by the Company.
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2.9 |
Billing Disputes
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2.9.1 |
Should Customer reasonably dispute an invoiced amount, Customer will send a billing dispute notice to the Company within ninety (90) days of the invoice date. The Billing Dispute Notice will include sufficient detail to enable the Company to investigate the dispute (including, without limitation, invoice number, billing cycle, amount in dispute, product, circuit ID and location, reasons for dispute and supporting documentation) and will be filed on the Company billing dispute form and in accordance with its billing procedures in effect at the time the dispute is filed.
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2.9.2 |
If a properly completed billing dispute notice is received by the Company prior to the due date for payment of the applicable invoice then, provided that the Customer is not delinquent in payment of any other invoice, Customer may withhold the amount in dispute until the dispute is resolved.
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2.9.3 |
The Company will resolve and communicate its resolution of any dispute filed in accordance with this Section 2.8 as soon as practicable and in any event within ninety (90) days of receipt of a properly completed billing Dispute Notice. If the dispute is resolved in the Company’s favor, any amounts to be paid by Customer shall be immediately due and payable and shall be subject to a late payment charge as referred to in Section 2.7. If the dispute is resolved in Customer’s favor then any resulting amounts due to Customer shall, as soon as practicable, be applied as a credit against a subsequent Customer invoice, provided that if Customer is in default of this Agreement any amount due will not be applied until Customer is no longer in default.
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2.9.4 |
Invoiced amounts not disputed by Customer in writing within ninety (90) days from the date of invoice will be conclusively deemed undisputed and accepted by Customer.
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2.10 |
Allowance for Interruptions in Service
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2.10.1 |
In the event Customer’s Service is interrupted other than by the negligence or willful act of the Customer and remains out of order for 48 consecutive hours or longer after the Customer reports to the Company that the Service is out of order, the Company shall adjust the Customer’s bill. The adjustment shall be equal to a pro-rata part of long distance charges for the first 48-hour period of Service during a single billing period and shall not exceed the amount of Service charges for that period. The refund may be credited on the Customer’s next bill for Service and the Company shall have no further liability for Service interruptions.
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2.10.2 |
Limitations on Allowances
No credit allowance will be made for any interruption of Service:
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A. |
due to the negligence of, or noncompliance with the provisions of the Agreement executed between the Company and the Customer, by any person or entity other than the Company, including but not limited to the Customer or other common carriers connected to the Service of the Company;
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B. |
due to the failure of power, equipment, systems, or services not provided by the Company;
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C. |
due to circumstances or causes beyond the control of the Company;
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D. |
during any period in which the Company is not given full and free access to its facilities and equipment for the purposes of investigating and correcting interruptions;
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E. |
during any period when the Customer has released Service to the Company for maintenance purposes or for implementation of a Customer order for a change in Service arrangements;
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F. |
that occurs or continues due to the Customer’s failure to authorize replacement of any element of special construction; and
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G. |
that was not reported to the Company within seven (7) days of the date that the Service was affected.
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2.11 |
Special Customer Arrangements
In cases where a Customer requests special or unique arrangements which may include but are not limited to engineering, conditioning, installation, construction, facilities, assembly, purchase or lease of facilities and/or other special services not offered under this Agreement, the Company, at its sole discretion and option, may provide the requested services. Appropriate recurring charges and/or nonrecurring charges and other terms and conditions will be developed for the Customer for the provisioning of such arrangements.
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2.12 |
Termination of Service:
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2.12.1 |
Termination for Breach.
Either party may terminate the Agreement upon written notice to the other Party if the other Party (i) fails to make a payment when due and such failure continues for more than ten (10) days after written notice thereof; (ii) is in material breach of any of its obligations hereunder and such failure or breach is not remedied within thirty (30) days after the terminating Party provides written notice to the breaching Party specifically describing such breach; (iii) ceases to carry on business as a going concern, becomes the object of voluntary or involuntary bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of its assets; (iv) engages in fraud, criminal conduct, or willful misconduct; or (v) breaches the confidentiality obligations under this Agreement. Upon the occurrence of a default, the non-defaulting Party may seek any and all remedies available at law and/or equity, and may terminate the Agreement.
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2.12.2 |
Denial of Service Without Notice
The Company may discontinue Service (or refuse to provide additional Service) without notice for any of the following reasons:
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A. |
Customer uses Equipment in such a manner as to adversely affect the Company’s Equipment or the Company’s Service to others.
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B. |
Customer tampers with Equipment furnished and owned by the Company.
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C. |
A dangerous condition exists, or is likely to exist, or the Service is used in a manner which creates a danger to the Company, its property or other customers or which causes hazardous signals over the Company’s Network.
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D. |
Customer makes use of Service or equipment in a manner that violates the law, including using the service to make (directly or by recording device) any obscene or indecent communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call, or if the Customer permits any telephone facility under such customer’s control to be used to make an obscene or indecent communication for commercial purposes.
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E. |
Customer violates or is in non-compliance with the Agreement or fails to fulfill contractual obligations for Service or facilities.
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F. |
Customer provides inaccurate, false and/or otherwise misleading information in its application for Service.
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2.12.3 |
Denial of Service With Notice
The Company may discontinue Service (or refuse to provide additional Service) for the reasons state below no less than ten (10) days after written notice is given by mail or delivered to the Customer’s listed address or premises where Service is rendered. Notice is considered given to the Customer two (2) days after mailing. Service may be disconnected after notice for any of the following reasons.
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A. |
For non-payment of a bill for Service, provided that the Company has made a reasonable attempt to effect collection and has given the Customer written notice of its intent to deny Service if settlement of his account is not made.
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B. |
For failure of the Customer to furnish the service, equipment, permits, certificates, or rights-of-way, specified by the Company as a condition to obtaining Service, or if the equipment or permissions are withdrawn or terminated.
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C. |
For failure of the Customer to comply with the Company’s requirement for deposits.
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D. |
Discontinuance of Service and termination of operations by Company in the service area where the Customer is located.
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E. |
Operation or connection of Customer-provided equipment or facilities which is not in accordance with the standards and provisions of these Terms and Conditions.
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2.12.4 |
Termination of Service by Customer Act or Request
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A. |
If no term agreement is in effect, and Service is terminated pursuant to Sections 2.13.1, 2.13.2 or 2.13.3 herein, or if Customer requests cancellation of Service after installation but prior to expiration of a minimum Service commitment period, for any reason other than a material breach of contract by the Company, Customer agrees to pay the Company the following sums, which shall be due and payable as of the effective date of cancellation or termination: (a) 100% of the remaining monthly recurring and usage charges; (b) all unpaid non-recurring charges for the Services that are cancelled or terminated; and (c) any charges imposed on the Company by any third party as a result of Customer’s early termination. This paragraph sets forth reasonable liquidated damages for losses that would otherwise be difficult or impossible to ascertain. Such liquidated damages are not a penalty.
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B. |
Customer may cancel an order prior to when it is first provisioned and/or for Equipment prior to when it is delivered to the carrier for shipment, or if installation by the Company is provided as part of the Services, then upon the Company’s installation of the Equipment, subject to payment of any restocking fees or costs incurred by the Company.
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C. |
Where a term agreement is in effect, Customer may cancel the current term agreement without termination charges provided the customer establishes a new term agreement for an equal or greater length of time than the current GTA Business Rewards Plan term agreement.
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D. |
Where a term agreement is in effect, termination liability is equal to 100% of the first year minimum commitment and 25% of any remaining commitment.
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2.13 |
Unlawful Use of Service
Service shall not be used for any purpose in violation of law or for any use as to which the Customer has not obtained all required governmental approvals, authorizations, licenses, consents, and permits. Customers are prohibited from using, and by their acceptance of Service agree not to use, the Services furnished by the Company for any unlawful purpose or for any purpose prohibited under the provisions of any regulatory order.
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2.14 |
Interference with or Impairment of Service
Service shall not be used in any manner that interferes with other persons in the use of their Service, prevents other persons from using their Service, or otherwise impairs the quality of Service to other customers. The Company may require a Customer to immediately shut down its transmission of signals if said transmission is causing interference to others or impairing the service of others.
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2.15 |
Overcharge/Undercharge
When a Customer has been overcharged, the amount shall be refunded or credited to the Customer. In case of undercharging, the Company may bill retroactively the Customer for charges owed by the Customer pursuant to the Agreement.
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2.16 |
Transfer and Assignment
Neither Party may transfer, assign or delegate any right or obligation with respect to the Services without the written consent of the other Party, which consent shall not be unreasonably withheld or delayed, and any attempted transfer, assignment or delegation without such consent shall be void and no effect.
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2.17 |
Equipment
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2.17.1 |
The Company will deliver the Equipment FOB shipping point, freight prepaid and charged and title to Equipment and all risk of loss to the Equipment shall pass to Customer upon delivery. Equipment is deemed to be delivered to Customer when the Equipment is delivered to the carrier for shipment or, if installation by the Company is provided as part of the Service, then upon the Company’s installation of the Equipment. Upon delivery, the Company hereby grants to Customer a personal, nontransferable, non-exclusive license to use the Software on or with the corresponding Equipment and the Company (or its licensors) shall retain and continue to own all right, title and interest in any Software and all copies.
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2.17.2 |
In connection with certain Services furnished hereunder, the Company may install and maintain Equipment on the Customer’s premises. Such Equipment shall at all times remain the property of the Company, and any installation on the Customer’s premises shall not serve to create any title, interest or ownership by the Customer of such Equipment.
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2.17.3 |
Customer will furnish any conduit, holes, wireways, wiring, plans, equipment, space, power/utilities, and all other items reasonably required to perform installation and other Services related to the Equipment and obtain any necessary licenses, permits and consents to do so.
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2.17.4 |
Customer has 30 days after delivery or installation if installation is provided as part of the Service, to test the Equipment and provide the Company with written notice if the Equipment is defective and does not conform to manufacturer’s specifications. The Company will repair or replace (at its option and expense) any such non-conformity and if the Equipment fails to conform after a reasonable number of attempts to do so, the Company will (at its option and expense) provide replacement Equipment or refund payments for non-conforming Equipment. The Company is not responsible for and shall have no liability for, or any impairment caused by (a) any non-conformity caused by improper use or environmental or electrical conditions or attachment of non-Company or manufacturer materials or devices; or (b) installation, operation or maintenance of non-Company hardware/software. Customer is responsible for ensuring that such non-Company hardware/software is compatible with the Services, Equipment or Software. If Customer does not deliver a written certificate of acceptance or written notice of non-conformity within 30 days after delivery or installation, if installation is provided as part of the Service, the Equipment shall be deemed accepted and the Company shall have no further liability in connection therewith.
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2.17.5 |
Upon termination of the Service, Customer shall return Equipment within ten (10) days of termination, postage paid, to Company and, upon Company request, will provide the Company with reasonable access to Customer’s premises for purposes of removing any Equipment. If Customer fails to return the Company’s Equipment on time, or if the Equipment is returned in a condition that is worse than could be expected through normal use and wear, then, in such event, Customer will be liable to the Company for the then current replacement cost of the Equipment.
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2.18 |
Limitation of Liability
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2.18.1 |
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES RELATED TO LOST PROFITS, TOLL FRAUD, LOSS OF USE, AND LOSS OF DATA, OR FAILURE TO REALIZE SAVINGS OR BENEFITS) ARISING UNDER THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS. THE TOTAL AGGREGATE LIABILITY OF THE COMPANY, ITS SUPPLIERS, LICENSORS, AFFILIATES, DIRECTORS, OFFICERS, AND/OR EMPLOYEES UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED AMOUNTS ACTUALLY PAID BY CUSTOMER DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CIRCUMSTANCES GIVING RISE TO THE FIRST CLAIM FOR DAMAGES UNDER THIS AGREEMENT.
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2.18.2 |
SAVE FOR CLAIMS FOR INDEMNITY UNDER SECTION 2.2, IN NO CIRCUMSTANCES SHALL THE COMPANY, ITS SUBCONTRACTORS OR AGENTS BE LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY OR TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OF ANY KIND WHETHER ACTIVE OR PASSIVE: (A) THIRD PARTY CLAIMS AGAINST THE CUSTOMER FOR DAMAGES, (B) ANY DELAY, LOSS, DAMAGE OR SERVICE FAILURE ATTRIBUTABLE TO ANY SERVICE, PRODUCT, EQUIPMENT OR ACTIONS OF ANY PERSON OTHER THAN THE COMPANY, ITS EMPLOYEES AND AGENTS, INCLUDING BUT NOT LIMITED TO DELAY, LOSS, DAMAGE OR SERVICE FAILURE ATTRIBUTABLE TO COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, ‘DENIAL OF SERVICE’ ATTACKS, DNS SPOOFING ATTACKS AND/OR OTHER HACKING ATTACKS OF A SIMILAR NATURE, OR (C) INTEROPERABILITY OF SPECIFIC CUSTOMER APPLICATIONS.
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2.19 |
Force Majeure
Except in the case of payment of amounts due, neither Party will be liable to the other Party for any failure of performance due to any cause beyond that Party’s reasonable control, including acts of God, fire, explosion, vandalism, terrorism, cable cut, storm, or other similar occurrence, any law, order, regulation, direction, action, or request by any government, civil, or military authority, national emergencies, insurrections, riots, wars, labor difficulties, supplier failures, shortages, breaches, or delays, or preemption of existing Service to restore Service in compliance with the regulatory rules and regulations, or, in the case of the Company, delays caused by Customer or Customer’s service or equipment vendors.
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2.20 |
Acceptable Use Policy
Customer shall comply with the Company’s Acceptable Use and Security Policies. A failure to comply with these policies shall constitute a material breach of the Agreement. The current complete policy is available on the Company’s website and is incorporated herein by reference.
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2.21 |
Confidential Information
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2.21.1 |
As the Company provides Services to Customer, the Company develops information about the quantity, technical configuration, type, destination, amount of Services Customer uses, and other information found on Customer’s bill (“Customer Proprietary Network Information” or “CPNI”). Under federal law, Customer has a right, and the Company has a duty, to protect the confidentiality of CPNI. In order to serve Customer in the most effective and efficient manner, Customer agrees that the Company may use or share CPNI with other Company Affiliates for purposes of determining and offering other Company products and services that may interest Customer. Customer permission to use CPNI for this purpose is valid until revoked. However, if at any time Customer so desires, the Company will not use CPNI to offer products and services that are unrelated to the Services Customer currently receives from the Company If Customer would prefer that the Company not use CPNI for this purpose, please call 644-4482. Denial of approval for the Company to CPNI will not affect the provision of any current services to which Customer subscribes.
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2.21.2 |
During the Term, each Party may obtain Confidential Information from the other Party. Written or other tangible Confidential Information must at the time of disclosure be identified and labeled as Confidential Information belonging to the disclosing Party. When disclosed orally or visually, Confidential Information must be identified as confidential at the time of the disclosure, with subsequent confirmation in writing within 15 days after disclosure. Neither Party may during the Term and for 3 years after termination of the Agreement disclose any of the other Party’s Confidential Information to any third party. Neither Party may use the other Party’s Confidential Information except to perform its duties under this Agreement.
The Confidential Information restrictions will not apply to Confidential Information that is (i) already known to the receiving Party, (ii) becomes publicly available through no wrongful act of the receiving Party, (iii) independently developed by the receiving Party without benefit of the disclosing Party’s Confidential Information, or (iv) disclosed by the disclosing Party to a third party without an obligation of confidentiality. Upon termination of this Agreement or an applicable Addendum, each Party will return or destroy the other Party’s Confidential Information.
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2.21.3 |
Additional information regarding the Company’s current Privacy policy is available on the Company’s website.
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2.22 |
Miscellaneous Provisions
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A. |
The Agreement between the parties shall be governed by and construed in accordance with the laws of Guam, without regard to its choice of laws provisions, and the venue of any legal action by either party shall be in Guam. That U.S. Territory of Guam shall have personal jurisdiction over the parties for all matters arising from or related to the Agreement between Customer and the Company.
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B. |
Failure by either party to insist upon strict compliance by the other with any term or condition of the Agreement between them shall not be construed as waiver of any subsequent breach.
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C. |
Each provision of the Agreement between Customer and the Company is severable from the whole, and if any one provision is declared invalid or unenforceable, the other provisions shall remain in full force and effect.
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D. |
This Agreement may be modified only by written instrument, executed by both parties’ authorized representatives. For purposes of this paragraph, authorized representatives of Company shall one include employees of Company with a title of Director, Vice President, or President.
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E. |
If the FCC, the Public Utilities Commission of Guam, a foreign regulatory body, or a court of competent jurisdiction, issues a rule, regulation, law or order which has the effect of materially increasing the cost to provide Services under the Agreement or canceling, changing, or superseding any material term or provision of the Agreement (collectively “Regulatory Requirement”) then the Agreement shall be deemed modified in such a way as the Parties mutually agree is consistent with the form, intent and purpose of this Agreement and is necessary to comply with such Regulatory Requirement.
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| 3. |
DESCRIPTION OF SERVICES
Unless otherwise noted, all Services are available seven (7) days per week, twenty-four (24) hours per day, 365 days per year.
Each usage sensitive Switched Service has its own specific increments. For all Services, fractions of a billing increment are rounded up to the next higher increment for billing purposes. The usage charges for each completed call during a billing month will be computed. If the charge for the call includes a fraction of a cent of $.005 or more, the fraction of such charge is rounded up to the next higher whole cent. Otherwise, the charge is rounded down to the next lower whole cent. Rounding for charges for Service(s) is on a call-by-call basis.
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3.1 |
GTA Residential Direct Dial
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A. |
The GTA Residential Direct Dial is an off island long distance Service available to Residential Customers. With GTA Direct Dial, calls are originated from other than a public or semipublic coin telephone. The desired telephone number is dialed, the call is completed without the assistance of a live or automated operator, and the call is not billed to a number other than the originating number. GTA Direct Dial is available to Residential Customers that presubscribe to the Company for long distance Service. If a Customer presubscribes to the Company for the provision of outbound long distance Service and does not select one of the Company's optional price plans, the Company will provision GTA Direct Dial Plan Service on the Customer's initial order for Service.
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B. |
Charges are usage sensitive. Calls are billed in one (1) minute increments, with minimum call duration of one (1) minute. With GTA Direct Dial Plan, there is no minimum monthly billing. Calls billed under this Service offering will not qualify for promotional rates.
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3.2 |
Residential Long Distance Service: Call USA Advantage
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A. |
Call USA Advantage is an off island long distance Service available to Residential Customers. With Call USA Advantage, Customers pay a monthly recurring charge of $7.95 per month and are charged $0.05 per minute for long distance calls to the mainland United States, Alaska and Hawaii. International rates are the same as the international rates in GTA Direct Dial.
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B. |
If Service is provided for less than a billing cycle, all associated monthly recurring charges will be prorated for the time Service was provided to the Customer.
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3.3 |
Residential Long Distance Service: Call USA Unlimited
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A. |
Call USA Unlimited is an off island long distance Service available to Residential Customers. With Call USA Unlimited, Customers pay a monthly recurring charge and receive unlimited long distance calls to the mainland United States, Alaska and Hawaii. International rates are the same as the international rates in GTA Direct Dial.
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B. |
Call USA Unlimited is for residential customer, non-business use only. Availability and terms can change. The plan cannot be used for long distance to the Internet or for business purposes such as telemarketing, auto-dialing or commercial or broadcast facsimile (i.e. fax). If the Call USA Unlimited long distance plan is used for non-residential purposes, the customer will be moved to a higher-priced, per minute long distance plan.
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C. |
If Service is provided for less than a billing cycle, all associated monthly recurring charges will be prorated for the time Service was provided to the Customer. Customers who sign up for Call USA Unlimited will not receive call detail records (CDR) for domestic calls on their invoice.
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3.4 |
GTA Businesses Direct Dial
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A. |
The GTA Business Direct Dial is an off island long distance Service available to Business Customers. With GTA Direct Dial, calls are originated from other than a public or semipublic coin telephone. The desired telephone number is dialed, the call is completed without the assistance of a live or automated operator, and the call is not billed to a number other than the originating number. GTA Direct Dial is available to Business Customers that presubscribe to the Company for long distance Service. If a Customer presubscribes to the Company for the provision of outbound long distance Service and does not select one of the Company's optional price plans, the Company will provision GTA Direct Dial Plan Service on the Customer's initial order for Service.
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B. |
Charges are usage sensitive. Calls are billed in 1/10th minute (6 second) increments, with minimum call duration of 3/10th of a minute (18 seconds). With GTA Direct Dial Plan, there is no minimum monthly billing. Calls billed under this Service offering will not qualify for promotional rates.
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3.5 |
GTA Businesses Rewards Plan
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A. |
The GTA Business Rewards Plan is an off island long distance Service available to Business Customers. With GTA Business Rewards, Customers pay a monthly recurring charge of $9.95 per month and are charged $0.05 per minute for long distance calls to the mainland United States, Alaska and Hawaii. International rates are the same as the international rates in GTA Business Direct Dial. With the GTA Business Rewards Plan, business customers received discounts on domestic and international long distance service based on term and volume commitments.
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B. |
All calls and the GTA Business Rewards Plan monthly recurring charge are subject to the term and volume discount. Customers must remit payment by invoice due date or any such discounts are forfeited.
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C. |
Customers subscribing to the GTA Business Rewards plan must demonstrate a bona fide competitive invoice in billed directly dialed long distance services for the most recent month to qualify at each discount level. Any customer may opt for a commitment level lower than current usage.
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D. |
Business plans contained herein are not available on residence exchange lines. The discounted rates are provided to Company customers only and shall not be used for any purpose for which a payment or other compensation shall be received by the customer from any other person, firm or corporation for such use.
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E. |
Person, collect, conference, third number billed toll station, or any other calls requiring operator handling (including operator handled calling card calls), are not included and will be billed at the regular message toll rates where applicable.
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F. |
These discounts are applicable to GTA Business Rewards Plan only and do not apply to any other Company-offered plans. Each individual call is rated on the basis of a six second increment with a minimum of 18 seconds per message.
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