TERMS AND CONDITIONS OF SERVICE
UNIVERSAL TERMS AND CONDITIONS OF SERVICE
The Universal Terms and Conditions of Service set forth below (hereinafter referred to as the "Universal Terms and Conditions of Service" or "Agreement") apply to Customer’s use of the Service and Equipment (as those terms are defined below) provided by Warwick Valley Mobile Telephone Company, Inc. and/or Hometown Online, Inc. (each company d/b/a USA Datanet), Warwick Valley Networks, Inc., or Warwick Valley Long Distance Company, Inc. (collectively referred to as “WVT”), as well as Customer’s access to the Warwick Valley Telephone Company, Inc. website (the “Website”). The Service and Equipment will be provided by Warwick Valley Mobile Telephone Company, Inc., Hometown Online Inc., Warwick Valley Networks, Inc., or Warwick Valley Long Distance Company, Inc. depending on the Service(s) ordered by Customer and Customer’s geographic location.
CUSTOMER IS ADVISED TO READ SECTION 2(d) CAREFULLY BEFORE USING THE SERVICE. THIS SECTION EXPLAINS THE OPERATION AND LIMITATIONS OF VOIP E911 EMERGENCY CALLS. CUSTOMER IS ALSO ADVISED TO READ THE E911 DISCLOSURE DOCUMENT REFERENCED IN SECTION 2(d).
1. Definitions. The following definitions apply to this Agreement
"Account" means the account established by Customer for the use of the Service and Equipment.
"Customer" or "you" or “your” means the firm, corporation, or other entity which orders WVT’s Service and Equipment, and who is responsible for the payment of charges and for compliance with this Agreement.
"Customer Equipment" refers to Equipment or wiring that Customer acquires from a source other than WVT and is used in conjunction with the Service.
"Direct Inward Dialing" or "DID" refers to a Service feature that allows callers from the PSTN to directly reach a specific network telephone number or User of the Service.
"E911 Disclosure" means the provisions set forth on the Website at www.wvtc.com and/or attached to and incorporated by reference into the Customer Service Order Agreement stating WVT’s policies regarding the availability and limitations of E911 Service, as those provisions may be amended from time to time by WVT in its sole discretion.. In the event of any conflict or inconsistency between the E911 Disclosure provisions set forth on the Website and the E911 Disclosure attached to any Customer Service Order Agreement, the E911 provisions set forth on the Website are the most current provisions and shall apply and govern this Agreement and any Customer Service Order Agreement.
"Equipment” means equipment or wiring at Customer’s location(s) that is directly provided and/or maintained by WVT and used in conjunction with the Service.
"Internet Protocol” or "IP" refers to a standard protocol designed for use in interconnected systems of packet-switched computer communication networks.
"Public Switched Telephone Network" or "PSTN" refers to the traditional circuit switched local telephone network, which connects telephone users with each other for the purpose of communications. In common usage, the term PSTN may also include local wireless networks.
"Service" refers to any non-tariffed services provided to Customer by WVT, including, without limitation, voice (including domestic, international, toll free and audio conferencing), data, electronic mail, electronic facsimile, data backup and storage, and all other types of communications services offered or provided by WVT. The individual services are listed in the Customer Service Order Agreement executed by Customer and may be described in detail on the Website.
“Service Activation Date” means the date that WVT determines that Customer is able to originate and terminate voice communications services on the WVT network.
"User" means any person or entity that obtains or uses WVT's Service and/or Equipment provided under this Agreement, regardless of whether such person or entity is authorized by Customer.
"Voice over Internet Protocol" or "VoIP" refers to a technology that enables a User to originate and/or terminate telephone calls by sending voice data in packets using IP rather than by traditional circuit switched technology.
"Website" means the WVT website identified by the domain name www.WVTC.com, along with any content set forth therein, as updated from time to time by WVT in its sole discretion.
2. Terms and Conditions.
(a) Acceptance. By ordering, activating, using, or paying for the Service and/or Equipment, you agree to be bound by this Agreement. WVT reserves the right, with or without notice, to amend or modify these Universal Terms and Conditions of Service, and Customer agrees to be bound by any amendment or modification. The E911 Disclosure is incorporated into this Agreement by reference. Modifications or amendments to the Universal Terms and Conditions of Service shall be effective at the time they are posted on the Website.
(b) Use. Customer is responsible for all use of the Service and Equipment associated with the Account. Customer accepts full responsibility and liability for such use. The Service and Equipment provided under this Agreement may be used for any lawful purpose for which they are technically suited. Customer agrees not to utilize the Service or Equipment for any unlawful purpose. Customer shall not use Services for transmitting or receiving any communication or material of any kind when the transmission, receipt or possession of such communication or material (i) would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national, or international law, or (ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. WVT, in its sole discretion, may terminate Service immediately and without advance notice if Customer violates any of the above restrictions, leaving Customer responsible for the all charges as set forth in Section 3(b).
(c) Fraud. Customer agrees to notify WVT promptly if it becomes aware of any fraudulent or unauthorized use of its Account, Service, or Equipment. WVT shall not be liable for any damages whatsoever resulting from fraudulent or unauthorized use of Customer’s Account; the payment of all charges to Customer’s account shall be and remain the responsibility of Customer.
(d) Limitations of E911 Service When Using VoIP Service. By using WVT’s VoIP Service and any related equipment, Customer acknowledges the limitations of E911 Service as described in the E911 Disclosure, as well as those set forth below. Customer agrees and acknowledges that while some individual services offer access to E911 Service, others may not. Customer is advised to thoroughly understand WVT’s VoIP Service and the options available. By accepting these Universal Terms and Conditions of Service, Customer acknowledges that it has received the information regarding the limitations of E911 Services with respect to the use of WVT’s VoIP Service, understands them, and assumes the risks associated with the E911 limitations. WVT may disclose to the FCC that Customer has acknowledged the E911 Disclosure by virtue of Customer having accepted this Agreement.
(e) Availability. The Service and Equipment are offered subject to the availability of the necessary facilities and equipment, and subject to the provisions of this Agreement.
(f) Compatibility. The Service and Equipment may not be compatible with Customer Equipment, and WVT is not required to maintain or repair Customer Equipment, or modify the Service to make it compatible with Customer Equipment.
(g) Right to Suspend. WVT reserves the right to suspend, limit or discontinue offering or providing Service when necessitated by conditions beyond its control, when Customer or any User is using the Service in violation of the provisions of this Agreement, or when Customer or any User is using the Service in violation of the law.
(h) Limitations of WVT’s VoIP Service and Equipment. Customer or any User may not be able to utilize WVT’s VoIP Service or Equipment, if: (i) the Equipment or Customer Equipment fails; (ii) the power required to operate Customer’s or any User’s computer, router, or modem, if applicable, fails; (iii) Customer’s or any User’s computer experiences hardware or software problems and/or viruses; (iv) in situations where WVT is not the Internet service provider, Customer’s or any User’s Internet service provider fails to provide adequate services for any reason; (v) Customer’s or any User’s hardware or software is improperly installed; or (vi) Customer or any User is blocked or otherwise unable to access the WVT network. By using WVT’s VoIP Service and/or Equipment, Customer and its Users acknowledge that WVT’s VoIP Service and/or Equipment may be limited in certain circumstances and may not be available 100% of the time. WVT will not be liable for errors in transmission or for failure to establish connections. In addition, Customer acknowledges and agrees that WVT’s VoIP Service and Equipment may not be compatible with certain fax machines or firewalls.
(i) Customer Responsibilities. By using the Service and/or Equipment, Customer and all of its Users acknowledge that there are certain rules and regulations that may apply to the location from which Customer and its Users are utilizing the Service, and that such rules and regulations may be materially different from jurisdiction to jurisdiction. Customer, on behalf of itself and all Users at Customer’s premises agrees to abide by all rules and regulations, including the exportation of data from the U.S. or other applicable jurisdictions. With respect to Customer’s use of the Service and/or any Equipment as well as any Customer Equipment, Customer shall be responsible for any claim or damages arising from or related to: libel; slander; invasion of privacy; infringement or unauthorized use of any copyright, trademark, trade name, service mark, or any other intellectual property right; interference with or misappropriation or violation of any proprietary or creative right; and any injury to any person, property, or entity arising out of the material, data, information, or other content used, received, or transmitted by Customer or any User; any act, error, or omission by Customer or any User. Customer shall also be responsible and liable for or any personal injury, property damage, or death of any person caused, directly or indirectly, by Customer, any User, or any Customer employee, agent, or contractor, arising from or related to the installation, maintenance, location, condition, operation, failure, presence, use, or removal of the Service, Equipment, or any Customer Equipment.
(j) Required Maintenance. WVT reserves the right to perform maintenance on or upgrade its network, its infrastructure, the Website, the Service and Equipment, and Customer’s Account, without prior notice or liability, even if such actions cause a partial or full disruption of the Service; provided, however, and subject to WVT’s business needs, WVT will use commercially reasonable efforts to perform maintenance on and upgrades to its network and the Service in a manner so as to avoid unduly interfering with Customer’s use of the Service. WVT may, in its sole discretion, add, change or delete features of the Website, features or functionality of the Service and Equipment, or features of Customer’s Account.
(k) Acceptable Use. If Customer is purchasing Internet access or other IP Services, Customer and its end users shall comply with WVT’s Acceptable Use Policy (the “AUP”). The current, complete AUP is available for review at WVT’s website at www.wvtc.com. WVT reserves the right to amend the AUP from time to time in its sole discretion. Upon written notice to Customer, WVT has the right to suspend the Services if Customer or any user of the Services being provided to Customer violates the AUP. Customer agrees to indemnify, defend, and hold harmless WVT from any losses, damages, costs or expenses resulting from any third party claim or allegation arising out of any alleged or actual violation of the AUP by Customer, any User, or any third party having access to the Services.
3. Term and Termination.
(a) Unless otherwise terminated pursuant to this Agreement, the Service is offered for an initial term of service (the “Initial Term”) specified in the Customer Service Order Agreement (“Service Order”), which term shall be a minimum of twelve (12 months and could be longer depending on the length of term selected by Customer in the Service Order. The Initial Term shall begin on the Service Activation Date and continue until the expiration of the Initial Term. Following the Initial Term, this Agreement and any Service Order shall automatically renew for successive terms that are identical in length to the Initial Term (each, a “Renewal Term”), unless and until either party notifies the other party in writing at least ninety (90) days prior to the end of the Initial Term or any Renewal Term that it does not wish to renew the Service Order. During the Renewal Term, Customer shall pay for the Services and Equipment maintenance services at WVT’s prevailing rates in effect on the first day of each year of the Renewal Term. For Customer’s using WVT’s VoIP Service, if, during the Initial Term or any Renewal Term, Customer adds any additional stations to its use of WVT’s VoIP Service, the amount of Customer’s monthly recurring charges shall increase as set forth in the Customer Service Order Agreement and the term for any such additional VoIP Service stations shall be the longer of: (i) a minimum of twelve (12) months from the Service Activation Date for such additional stations; or (ii) the remaining length of the unexpired Initial Term or Renewal Term. To the extent that the term for any such additional VoIP Service stations extends beyond the Initial Term or any Renewal Term, the terms and conditions of this Agreement shall remain in full force and effect with respect to such additional stations until the expiration of the term for such additional stations.
(b) Early Termination. If this Agreement is terminated by Customer prior to the expiration of the Initial Term or any Renewal Term and such termination is not due to WVT’s breach as set forth in Section 3(c) or if WVT terminates this Agreement pursuant to Section 2(b) or 3(c) due to Customer’s breach, Customer shall pay to WVT an early termination charge, which Customer agrees is reasonable and not a penalty, equal to all non-recurring and monthly recurring charges set forth in the Customer Service Order Agreement which would otherwise be due through the end of the Initial Term or Renewal Term in effect at the time, including all applicable taxes and fees. The parties agree that the precise damages resulting from an early termination by Customer or termination by WVT due to Customer’s breach are difficult to ascertain and the early termination charge set forth in this Section 3(b) is a reasonable estimate of anticipated actual damages and not a penalty. The early termination charge shall be due and payable within ten (10) days of the effective date of termination.
(c) Termination for Breach. Either party may terminate this Agreement at any time by giving thirty (30) days written notice of termination to the other party in the event that the other party (a) materially breaches this Agreement and fails to remedy such material breach within thirty (30) days of receiving such written notice, or (b) becomes insolvent, makes an assignment for the benefit of creditors, is adjudged bankrupt, or if a receiver is appointed over such party's assets. Notwithstanding any other provision of this Agreement, WVT has the right to suspend Service, and terminate this Agreement for Customer’s material breach, immediately upon written notice if any amount owed by Customer is delinquent for more than thirty (30) days from the invoice date.
(d) Government or Regulatory Developments. WVT has the right to terminate any Customer Service Order Agreement if, regardless of the cause or reason, WVT cannot legally provide some or all of the Equipment or Services for a period exceeding ten (10) days, including, without limitation, loss of governmental or regulatory authorizations required to provide the Equipment or Services; or, if changes in laws or regulations make the provision of some or all of the Services impracticable or illegal for WVT to install, maintain, or operate any of the Equipment or provide any Service.
4. Limitation of Liability
(a) WVT's liability for damages arising out of mistakes, interruptions, omissions, delays, errors, or defects which occur in the course of installing, providing, maintaining, or modifying any Service or Equipment or for any other reason, shall in no event exceed an amount equivalent to the proportionate charge to Customer for the period during which the faults occurred. In the event that Customer experiences an interruption or loss of service due to WVT’s fault, negligence, act, error, or omission, WVT will provide Customer with a credit on a pro-rata basis for the period of time that the Service was unavailable to Customer. In order to receive a credit, Customer will need to provide WVT written notice within ten (10) business days of the service interruption and the credit will be applied to a future Customer invoice.
(b) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ANY CUSTOMER SERVICE ORDER AGREEMENT, IN NO EVENT WILL WVT, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTRACTORS, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS, EXPENSE, OR DAMAGE DUE TO LOSS OF REVENUES, PROFITS, SAVINGS, BUSINESS, OR GOODWILL, NOR WILL WVT, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTRACTORS, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY EXEMPLARY, INDIRECT, PROXIMATE, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY, WITHOUT LIMITATION, TO ANY CLAIM, LOSS, EXPENSE, OR DAMAGE, RELATING TO OR ARISING FROM ANY MALFUNCTION OF ANY SERVICE, EQUIPMENT, OR FACILITY PROVIDED BY WVT OR ANY OTHER SERVICE PROVIDER AS WELL AS THE FAILURE OR INABILITY TO ACCESS E911 SERVICE OR ANY EMERGENCY SERVICE.
(c) NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT OR ANY CUSTOMER SERVICE ORDER AGREEMENT, IN NO EVENT SHALL WVT, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR CONTRACTORS, BE LIABLE TO CUSTOMER, ANY USER OF THE SERVICE AND/OR EQUIPMENT, OR ANY OTHER THIRD PARTY DUE TO THE INABILITY OF CUSTOMER, ANY USER, OR ANY OTHER PERSON OR PARTY TO BE ABLE TO DIAL 911 OR ACCESS AND/OR SPEAK TO 911 EMERGENCY PERSONNEL THROUGH SERVICES OR EQUPMENT PROVIDED BY WVT OR DUE TO WVT’S SUSPENSION OR TERMINATION OF SERVICES IN ACCORDANCE WITH THESE UNIVERSAL TERMS AND CONDITIONS OF SERVICE. THE LIMITATIONS SET FORTH IN THIS SECTION 4 APPLY TO ALL CLAIMS AND ALLEGATIONS WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCTS LIABILITY, TORT, AND ANY AND ALL OTHER CAUSES OF ACTION OR THEORIES OF LIABILITY.
(d) Except for WVT’s gross negligence or willful misconduct, in no event will WVT’s total aggregate liability to Customer, including, without limitation, liability to any User, person, or persons whose claim or claims are based on or derived from a right or rights claimed by Customer or to any third parties for any and all claims arising from or relating to the provision of any Service or Equipment, any Service Order, these Universal Terms and Conditions of Service, or any other claim or cause of action, whether in contract, tort, or otherwise, exceed the aggregate amount of charges paid by Customer to WVT under such Customer Service Order during the six (6) month period immediately preceding the date of the occurrence of the event giving rise to the claim. WVT shall have no liability whatsoever for any damage to, or loss of, any equipment or other property under the care, custody or control of Customer or any User unless caused by WVT’s gross negligence or willful misconduct, in which case WVT’s maximum liability is set forth above in this Section.
(e) Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the limitations set forth in this Section 4 may not apply to Customer if prohibited by law.
(f) No action against either party arising out of this Agreement may be brought by the other party more than one year after the cause of action has arisen.
5. No Warranty.
THE EQUIPMENT AND SERVICE ARE PROVIDED BY WVT ON AN “AS IS” BASIS, AND CUSTOMER’S AND ITS USERS’ USE OF THE EQUIPMENT AND SERVICE ARE AT CUSTOMER’S OWN RISK. OTHER THAN THE THIRD PARTY MANUFACTURERS’ WARRANTIES THAT MAY BE APPLICABLE TO THE EQUIPMENT, WVT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE OR EQUIPMENT THAT ARE THE SUBJECT OF THIS AGREEMENT OR ANY SERVICE ORDER. WITHOUT LIMITING THE FOREGOING, WVT MAKES NO REPRESENTATION OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR FUNCTION, WHETHER EXPRESS OR IMPLIED. WVT MAKES NO WARRANTY THAT THE SERVICE OR EQUIPMENT WILL OPERATE UNINTERRUPTED OR ERROR FREE. WVT DOES NOT WARRANT THAT ANY SERVICE WILL BE AVAILABLE ON A SPECIFIED DATE OR TIME OR THAT THE NETWORK WILL HAVE THE CAPACITY TO MEET THE DEMAND OF USERS DURING SPECIFIC HOURS. CUSTOMER MAY BE UNABLE TO ACCESS THE WVT NETWORK AT ANY TIME AND DISCONNECTION FROM THE WVT NETWORK MAY OCCUR FROM TIME TO TIME.
6. Equipment, Software, and Internet Use.
(a) Customer is responsible for all costs at its premises, including without limitation personnel, wiring, computer equipment, Internet access (in situations where WVT is not the Internet service provider), electrical power, and the like, necessary for the use of the Service and any Equipment.
(b) Third Party Software. The Service includes certain components licensed by WVT from third parties. You agree that you will not use the third party components except in conjunction with use of the Service and Equipment.
(c) Third-Party Networks. WVT utilizes the public Internet and third-party networks in conjunction with its provision of certain Services and the Website. WVT makes no representation that the Internet or any third-party network will adequately protect the privacy of Customer’s or any User’s personal information, and WVT expressly denies any liability associated therewith.
7. Financial Terms.
(a) Prices and Charges. In addition to paying for all applicable non-recurring and professional services charges, Customer shall, throughout the Initial Term and any Renewal Term, pay the monthly recurring charges set forth in the Customer Service Order Agreement. With respect to WVT VoIP Service, all such monthly recurring charges shall apply irrespective of whether Customer decreases, abandons, and/or cancels the number of stations that use the WVT VoIP Service during such the Initial Term or any Renewal Term. WVT may increase, decrease, change or modify any of its rates for any Service at any time; provided, however, that such changes shall not be effective until at least thirty (30) days after written notice is given to Customer. Notwithstanding Section 3(b), if WVT increases the rate to be paid for any Service, Customer shall be permitted to terminate the affected Service(s) provided by WVT, without incurring an early termination charge, if Customer gives WVT written notice of termination within thirty (30) days of receipt of WVT’s notification of any rate increase for such Service. If Customer elects to terminate the affected Service in accordance with this Section 7(a), Customer shall remain liable for any accrued charges owed prior to the effective date of termination. If Customer fails to give written notice of termination within thirty (30) days of receipt of WVT’s written notice of a rate increase, Customer shall be deemed to have accepted the rate increase, waived its right to terminate, and this Agreement and all Service Orders shall remain in full force and effect.
(b) Taxes and Fees.
(i) Taxes. Federal, state, local, county, municipal, and other government or regulatory agencies may assess taxes, including, without limitation, excise, franchise, sales, value-added, use, personal and real property taxes, surcharges and/or fees (“Taxes”) on Customer’s purchase and/or use of the Service and/or Equipment. These Taxes may change from time to time, with or without notice to Customer. Customer is responsible for the payment of all applicable Taxes now in force or enacted in the future. Such amounts are in addition to the charges paid for the Service and Equipment. If Customer is exempt from any or all Taxes, it must provide WVT with an original certificate that satisfies applicable legal requirements attesting to its tax exempt status. Tax exemption shall only apply from and after the date that WVT receives such valid certificate.
(ii) Fees. In addition to any Taxes imposed by governments or regulatory agencies, WVT reserves the right to charge or increase various fees (“Fees”), including, without limitation, activation fees, E911 Service fees, universal service fees, and regulatory recovery fees. Any imposition of or increase in Fees that are imposed by a government or regulatory agency or that are intended to recover costs associated with government or regulatory programs may, in WVT’s sole discretion, be effective immediately. The imposition of or increase in any Fees shall not constitute a rate increase as described in Section 7(a) and shall not give Customer a right to terminate this Agreement or any Service Order pursuant to Section 7(a).
(c) Billing and Payment.
(i) Payment. All WVT invoices are due upon receipt and all payments must be made in U.S. currency. Customer shall pay monthly recurring charges for any partial month during the Initial Term or any Renewals Term on a pro rata basis. Customer is solely responsible for any and all charges incurred as the result of the use of the Service(s) associated with its Account, whether or not such charges were authorized or intended. WVT may suspend, restrict, or cancel use of the Service and Equipment, if Customer does not make full payment of all billed charges within thirty (30) days of the invoice date. Any amounts not paid to WVT within thirty (30) days of the date of the applicable invoice shall accrue interest at the rate of one and one-half percent (1.5%) per month or the maximum amount allowed by law, whichever is less. Customer shall also reimburse WVT for all reasonable attorneys’ fees and other costs incurred by WVT relating to collecting delinquent payments or Customer’s breach of this Agreement. Customer shall be responsible for all sales, use, value added, or other tax or duty arising from or related to this Agreement and the provision of Services and Equipment, except for taxes on WVT’s net income.
(ii) Invoice and Statement Periods, Format and Delivery. Billing periods and invoice formats may vary. WVT reserves the right to change the billing period, invoice format, or method of delivery from time to time, with or without notice to Customer. Unless otherwise agreed, all invoices shall be delivered electronically via the email address on file for Customer’s Account. Customer is obligated to keep its Account information accurate and current. An incorrect or obsolete email address shall not release Customer from any of its payment obligations.
(iii) Methods of Payment. In its sole discretion and in limited instances, WVT reserves the right to accept payment by credit card. Customer acknowledges and agrees that each credit card payment is subject to a credit card processing fee. In situations where WVT agrees to accept payment by credit card, WVT reserves the right to discontinue acceptance of payment by credit card at any time.
(iv) Prepayment. Unless otherwise specified, all monthly recurring charges for Service and Equipment will be billed and paid one calendar month in advance. WVT has the right to bill and Customer shall pay for all non-recurring and professional services plus applicable taxes prior to the Service Activation Date. All usage and related charges will be billed and paid in arrears as and when they are incurred and remain subject to the payment terms set forth in this Agreement.
(v) Billing Disputes. If Customer believes that it has been charged in error, or if Customer believes that it is due a credit or refund, Customer must notify WVT in writing within thirty (30) days of the invoice date. Any billing disputes must be in writing, include a detailed statement describing the nature and amount of the disputed charge(s) and the reason(s) why a credit or refund is being requested, and sent via certified or overnight mail, return receipt requested, to the attention of:
Billing Department
Warwick Valley Telephone Company, Inc.
47 Main Street
Warwick, New York 10990
Customer shall cooperate fully with WVT to promptly address and attempt to resolve the disputed charge(s). If Customer fails to provide written notice of dispute within the enumerated thirty (30) day deadline, the charges and invoice will be considered correct and binding on Customer. Irrespective of the foregoing, Customer shall pay the undisputed portion of all invoices in a timely manner in accordance with the payment terms set forth in this Agreement.
(d) Service Suspension, Termination and Restoration. WVT may suspend or terminate Customer’s Service, and may terminate this Agreement, if Customer fails to meet any or all of its payment obligations. If Customer’s Service has been suspended or terminated, WVT may, at its sole option, choose to restore or re-establish Customer’s Service prior to the payment of all charges due. Such restoration or re-establishment shall not be construed as a waiver of WVT’s right to receive full payment for all charges due or as a waiver of any rights to suspend or disconnect Service for non-payment of any such charges due and unpaid or for the violation of any provision of this Agreement; nor shall the failure to suspend or disconnect Service for non-payment of any past due amount operate as a waiver or estoppel to suspend or disconnect Service for non-payment of such Account or of any other past due Account. If Service is suspended for non-payment of charges, it will only be restored when all charges are paid in full and at WVT’s discretion.
(e) Authorization to Verify Credit Rating. Customer agrees to supply WVT with the information necessary to verify Customer’s credit rating prior to providing Customer with access to any Service or Equipment. WVT may also, during the term of this Agreement, update its information regarding Customer’s credit rating without notice to Customer.
(f) Deposit. If WVT determines, prior to providing Customer with access to any Service or Equipment, or during the term of this Agreement or any Service Order, that it requires a deposit to ensure Customer’s payment, Customer may be required to provide a deposit. In the event WVT requires a deposit, the deposit will be held and applied as required by law. WVT may apply Customer’s deposit to past due obligations as well as to any fees or other assessments to Customer’s Account.
8. Trademarks.
Customer shall not to use any of WVT’s trade names, trademarks, service marks or logos without WVT’s express written consent.
9. Service Disconnection.
WVT reserves the right to terminate the Service or Customer’s use of the Equipment in the event Customer or any User is in violation of this Agreement. WVT may be required by law to interrupt the service in the event it causes interference to the WVT network, any party, or any equipment.
10. Indemnification.
(a) WVT shall protect, indemnify, defend and hold harmless Customer, its officers, directors, employees, agents, and contractors, from and against any and all losses, damages, liabilities, penalties, fines, costs and expenses, including reasonable attorneys’ fees, incurred by Customer, for any third party claim arising from or relating to: (i) any gross negligence or willful misconduct of WVT while at Customer’s physical location(s); (ii) violation of any law or regulation by WVT; or (iii) an allegation that the use of the Service, as contemplated under this Agreement, infringes the intellectual property rights of a third party. The foregoing indemnification obligation of WVT shall not apply: (1) if a WVT Service is modified by any party other than WVT, but solely to the extent the alleged infringement is caused by such modification; (2) a WVT Service is combined with other service(s) and/or equipment not provided by WVT, but solely to the extent the alleged infringement is caused by such combination; or (3) to any unauthorized use of WVT Service.
(b) Customer shall protect, indemnify, defend and hold harmless WVT, its officers, directors, employees, agents, and contractors, from and against any and all losses, damages, claims, allegations, causes of action, liabilities, penalties, fines, costs and expenses, including, without limitation, reasonable attorneys’ fees, arising from or relating to: (i) any act, error, omission, fault, negligence or misconduct of Customer or any User of the Service or Equipment; (ii) any breach by Customer of any term or condition of any Service Order or this Agreement or Customer’s breach of any warranty, representation or covenant in any Service Order or this Agreement; (iii) any claim by any employee or invitee of Customer or User other than a claim based on the gross negligence or willful misconduct of WVT; (iv) any claim by any customer of Customer, User, or any other third party relating to, or arising from, Customer’s use of the Services or Equipment unless due to the gross negligence or willful misconduct of WVT; or (v) violation of any law or regulation by Customer, any User, or any Customer employee, agent, or contractor.
11. Confidentiality.
(a) Each party (a "Receiving Party") acknowledges that it and its employees, contractors, or agents may, in the course of satisfying its obligations hereunder, be exposed to or acquire information which is proprietary or confidential to the other party (a "Disclosing Party"). Any and all information in any form obtained by a Receiving Party or its employees, contractors, or agents in the provision, performance, or use of the Services or the satisfaction of such party's obligations hereunder, including but not limited to the financial terms of this Agreement or any Service Order, product and business information, financial information, trade secrets, know-how and information regarding processes, shall be deemed to be the confidential and proprietary information ("Confidential Information") of the Disclosing Party. The Receiving Party agrees (a) to hold all Confidential Information in strict confidence; (b) to disclose Confidential Information only to employees and/or contractors of the Receiving Party who have a need to know such Confidential Information and who are obligated to hold such Confidential Information in strict confidence; and (c) not to copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give or disclose such Confidential Information to third parties, or to use such Confidential Information for any purposes whatsoever other than in connection with the Receiving Party's performance under this Agreement.
(b) Confidential Information shall exclude all information, which (a) is at the time of disclosure is, or thereafter becomes, a part of the public domain through no act or omission of the Receiving Party, its employees, contractors, or agents; (b) was in the Receiving Party's possession as shown by written records prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (c) is hereafter disclosed to the other party by a third party who did not acquire the information directly or indirectly from the Disclosing Party hereunder; or (d) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information, as evidenced by written records. Notwithstanding the foregoing, each party may disclose Confidential Information received in confidence to the limited extent (i) required by law to be disclosed, or in order to comply with the order of a court or other governmental body, provided that the party making the disclosure pursuant to the order shall first, to the extent it is permitted to do so, give written notice to the other party and make a reasonable effort to obtain a protective order to the extent permitted; or (ii) to establish a party’s rights under this Agreement, including to make such court filings as it may be required to do, but only to the extent and for the purposes of such required disclosure.
12. Governing Law and Dispute Resolution.
(a) This Agreement and the terms of any Customer Service Order Agreement(s) and any addendum thereto, shall be governed by and enforced according to the laws of the State of New York without reference to conflict of laws principles. The parties hereby agree that any disputes, controversies, claims, or collection efforts regarding Customer’s failure to pay any charges, amounts, or fees invoiced to Customer may be brought in the state and federal courts in Westchester County, New York. The parties hereby consent and submit to the exclusive jurisdiction and venue of such courts. Each party hereto waives any objection based on forum non conveniens and waives any objection to venue of any action instituted hereunder to the extent that an action is brought in the courts identified above and is not otherwise subject to the arbitration requirements below.
(b) In the event of any controversy or claim arising from or related to this Agreement, its performance or interpretation, the parties, in good faith, will initially attempt to resolve the dispute between them. Except for disputes, controversies, claims, or collection efforts regarding Customer’s failure to pay any charges, amounts, or fees invoiced to Customer, any and all disputes, controversies, and claims arising out of or relating to this Agreement or any Customer Service Order Agreement(s), including its/their validity, shall be settled and determined by arbitration conducted in Westchester County, New York, before one (1) arbitrator in accordance with the Commercial Arbitration Rules and Mediation Procedures then in effect of the American Arbitration Association. The arbitrator’s award shall be final and binding on the parties, and judgment confirming such arbitration award may be entered thereon in any court having jurisdiction over such proceedings. Each party shall bear its own costs and expenses of preparing and presenting its case and shall bear an equal share of the expenses and fees with respect to the arbitration. The arbitrator(s) shall not be empowered to award damages in excess of direct compensatory damages and shall not be authorized to award special, indirect, punitive, incidental, or consequential damages, and each party irrevocably waives the right to be awarded or collect any damages in excess of direct compensatory damages.
(c) Action to Collect Charges. Notwithstanding the above, WVT shall be reimbursed for reasonable attorneys' fees, expenses, and costs in the event it institutes an action to collect any amounts owed for Service or Equipment under this Agreement or any Customer Service Order Agreement. In the event WVT is required to initiate such an action, it shall not be limited to arbitration but may bring the action in civil court.
13. Severability.
This Agreement is made subject to all present and future valid orders and regulations of any regulatory body or court having jurisdiction over the subject matter and parties hereof and to the laws of the United States of America, any of its states, or any foreign governmental agency having jurisdiction. In the event this Agreement, or any of its provisions, shall be found contrary to or in conflict with any such order, rule, regulation, or law, this Agreement shall be deemed modified to the extent necessary to comply with any such order, rule, regulation or law, provided that such modification is consistent with the form, intent and purpose of this Agreement. If any provision of this Agreement or part thereof is stricken in accordance with this section, then the stricken provision shall be replaced, to the extent possible, with the a legal, enforceable, and valid provision that is as similar to the stricken provision as is legally possible.
14. Notice.
(a) To Customer: In the event WVT is required to provide Customer with notice under this Agreement, it will provide written electronic notice to the Customer email address that WVT has on file. In the event that Customer changes its email address, Customer shall advise WVT immediately in writing. By Customer’s acceptance of these Universal Terms and Conditions of Service, Customer agrees to electronic delivery of all required notifications, unless otherwise provided for herein.
(b) To WVT: Any notices sent to WVT under this Agreement shall be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. All correspondence should be sent to the following address:
Chief Financial Officer
Warwick Valley Telephone Company, Inc.
47 Main Street
Warwick, New York 10990
With a copy to:
Chief Executive Officer
Warwick Valley Telephone Company, Inc.
47 Main Street
Warwick, New York 10990
15. Waiver.
The failure of either party to enforce or insist upon compliance with any of the provisions of this Agreement or any Customer Service Order Agreement in any instance shall not be construed as a general waiver or relinquishment of any other provision of this Agreement or any Customer Service Order Agreement.
16. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns and any User who uses the Services under Customer’s Account.
17. Assignment.
Customer shall not assign any of its rights or obligations under this Agreement or any Customer Service Order Agreement, or transfer ownership of the Account or any Service or Equipment, without WVT’s prior written consent. WVT may assign this Agreement and any obligation to provide any Service to any subsidiary, parent, or affiliated company, or to a successor company pursuant to any reorganization or merger of its business, or to any successor pursuant to any sale or transfer of all or substantially all of its assets or the sale of a business unit or line of business or by operation of law. The rights and obligations under this Agreement shall survive any merger or sale of either party and shall be binding upon the successors and permitted assignees of each party.
18. Amendment.
WVT reserves the right, with or without notice, to amend or modify these Universal Terms and Conditions of Service, and Customer agrees to be bound by any amendment or modification. Except as stated above in this Section 18 and subject to the terms and conditions of this Agreement, this Agreement may not be amended by Customer except by a written document executed by both parties.
19. Entire Agreement and Merger.
This Agreement, along with the Customer Service Order Agreement(s) and the E911 Disclosure, supersedes and merges all prior agreements, promises, understandings, statements, representations, warranties, indemnities, covenants, and all inducements to the making of this Agreement relied upon by either party, whether written or oral, and embodies the parties' complete and entire agreement with respect to the subject matter hereof. No statement or agreement, oral or written, made before or after the execution of this Agreement shall vary or modify the written terms hereof in any way whatsoever.
20. Independent Contractors.
WVT and Customer are independent contractors. Any Service Order(s) and this Agreement do not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties. Neither party has the power to bind the other or incur obligations on the other’s behalf without the other party’s prior written consent,
21. Basis of Bargain; Failure of Essential Purpose.
Customer acknowledges and agrees that WVT has established its prices and entered into one or more Customer Service Order Agreements in reliance upon the limitations and exclusions of liability and the warranty disclaimers set forth in these Universal Terms and Conditions of Service are an essential basis of the bargain between the parties and are material terms of this Agreement. The parties agree that the limitations and exclusions of liability and disclaimers specified in these Universal Terms and Conditions of Service will survive and apply even if found to have failed their essential purpose, and Customer hereby waives its right to contest the enforceability of any provision of these Universal Terms and Conditions of Service by reason of such failure.
22. Facsimile Transmission/Counterparts. This Agreement including any Service Orders may be executed and delivered by facsimile or email, and upon receipt such transmission shall be deemed delivery of an original. This Agreement including any Service Orders may be executed in several counterparts each of which when executed shall be deemed to be an original, and such counterparts shall each constitute one and the same instrument.
23. Force Majeure. Neither party to this Agreement shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including, but not limited to, acts of God, fire, labor difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.
