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