Total Call International
Internet Services Contract
Customer
agrees to purchase each Service for a minimum service commitment (“Service
Commitment”) as referenced in your Invoice Summary from the date of
Installation of such Service.
PLEASE
CAREFULLY READ THE ATTACHED TERMS AND CONDITIONS (“THE AGREEMENT”). BY SIGNING
OR ELECTRONICALLY ACCEPTING THE ORDER FORM, CUSTOMER AGREES TO BE BOUND BY THE
TERMS AND CONDITIONS OF THE AGREEMENT.
Customer
appoints Total Call International and its agents to order services on its
behalf, including, without limitation, changes to and maintenance on, removing,
adding to, or rearranging such services. Customer agrees that Total Call
International and its agents may deal directly with Customer’s local telephone
company on all matters pertaining to such services, including accessing
Customer’s customer service record. In particular, Customer recognizes that
Total Call International cannot provision any of its line-shared Small Business
Access and Medium Business Basic services on Customer's telephone line if
Customer currently has a third-party ISP’s DSL service provisioned over such
telephone line. Customer hereby authorizes Total Call International to request
that the Customer’s telephone company disconnect any existing third-party DSL
services that are currently provisioned on the Customer's telephone line.
Customer hereby releases and indemnifies Total Call International and
Customer’s telephone company from any third party claims in connection with
such disconnection. This authorization will remain in effect until this
Agreement is terminated.
Only an
authorized Total Call International employee may contractually accept this
Agreement. No other individual or entity, including but not limited to Total
Call International Authorized Sales Agents, may contractually accept this
Agreement. No changes or additions to this Agreement are valid.
TERMS AND
CONDITIONS
Services
Subject to
the terms and conditions of the Agreement, Total Call International shall
provide the Services purchased by Customer (whether Customer purchases such
Services on-line, on an Order Form or through Total Call International’s
Customer Care Centers) ("Services"). Use of the Services shall
constitute acceptance of this Agreement. Customer shall use the Services
without the right of resale or distribution, and strictly in accordance with
the applicable law. Total Call International reserves the right to change the
terms of Service upon notice to Customer. If Customer does not agree to the
changed terms, Customer must terminate this Agreement without penalty by
providing Total Call International with written notice within seven (7) days of
the date of the notice of the changed terms; otherwise any continued use of the
Services shall be deemed to be acceptance of the changed terms. If Customer
adds additional services on-line or on an additional Order Form and does not
accept a new Agreement, such new services will be deemed Services and shall be
governed by the terms of this Agreement. If Customer is an individual, Customer
represents and warrants he or she is at least 18 years old. Customer shall be
solely responsible for the safeguarding of its passwords and may be unable to
access its files in the event any password is lost, forgotten or
misappropriated. Total Call International and its suppliers may, from time to
time and without liability, interrupt Services for maintenance and other
operational reasons, and Customer shall not receive any compensation for such
interruptions. Total Call International reserves the sole and exclusive right
to determine or revise its service area, and the right to discontinue any
Service or Product without liability. Customer agrees that IP addresses are not
guaranteed, transferable or provided for further distribution. All references
in this Agreement apply to all the Internet Services offered by Total Call
International unless specifically stated otherwise.
Products
and Customer Equipment
Total Call
International may deliver to Customer certain software, hardware and
documentation, including but not limited to CPE defined below (collectively,
"Products"). Total Call International grants to Customer a personal,
non-transferable, non-exclusive, license to use the software and documentation
during the Service Commitment solely for Customer’s own internal use of the
Services in accordance with this Agreement. Total Call International will use
commercially reasonable efforts to supply and configure the Total Call
International supplied equipment external to Customer’s personal computer (referred
to as “Customer Premises Equipment” or “CPE”) to allow Customer to use the
Services, unless Customer has chosen to supply its own Total Call
International-qualified CPE subject to the terms of this Agreement. Total Call
International is not responsible for the configuration of, or internal
equipment for, Customer’s personal computer that may be necessary to make such
computer compatible with the Services. For any CPE that Customer purchases
through Total Call International, Total Call International may supply new or
recertified equipment. On new and recertified equipment purchased by Customer
through Total Call International, Total Call International will provide a one
(1) year warranty from the day of order. At Total Call International’s
discretion, any equipment Total Call International supplies as replacement
equipment (e.g., for warranty purposes) may be new, recertified or refurbished.
Any equipment supplied as replacement equipment will carry the remainder of the
one (1) year warranty described above. If the CPE malfunction is the result of
Customer’s abuse, misuse or reconfiguration of CPE or equipment, Total Call
International will charge Customer for the Field Service Technician visit (if
applicable) and the cost of any replacement equipment. After expiration of the
one (1) year warranty period, Total Call International will replace such
malfunctioning CPE, and Customer will be responsible for the cost of the CPE
and the Field Service Technician visit (if applicable), each as set forth in
the Customer Policies. Total Call International may also provide any Product or
CPE upgrades at no expense to Customer, and Customer shall use all such
upgrades provided by Total Call International. Total Call International and its
suppliers shall have no obligation or liability in connection with any
equipment not purchased through Total Call International and configured by
Total Call International, or for any abuse, misuse or reconfiguration
(including, but not limited to, the addition of software or other devices on
the CPE) of any equipment by any party other than Total Call International.
Setup
Services
are provided over a permanent virtual circuit (“Customer Circuit”) to
Customer’s premises. If Customer orders Dedicated Loop Internet services,
“Installation” will be deemed to have occurred when: (i) Total Call
International can verify connectivity of the service ordered between the CPE
and the Total Call International DSLAM or other network equipment; and (ii)
Total Call International can verify Internet connectivity from a host on the
Customer’s network to a host on the Internet, through a ping test or another
applicable connectivity test. If Customer orders other Internet Services, Total
Call International “Installation” will be deemed to have occurred five (5)
calendar days after the Customer’s LEC confirms that the DSL capable loop has
been delivered, or when Total Call International detects traffic on the
Customer Circuit, whichever comes first. A Customer’s order is closed on at
Installation. If Total Call International is unable to successfully install a
Service that Customer had originally ordered, Total Call International will
allow Customer to accept a lower speed Service, if available, or Customer may
decline the Customer Circuit without a Disconnection Fee. If Customer declines
the Customer Circuit and, if Customer has ordered only that particular service,
Customer and/or Total Call International may terminate this Agreement. Customer
will be responsible for any additional, unforeseen construction costs
including, without limitation, inside wiring administration and special
installation costs. Total Call International shall obtain Customer’s consent
before incurring any such special costs.
Dial-Up
Services
The
Dial-Up Service includes an unlimited amount of usage for dial-up Internet
access. Local dial-up numbers may not be available in all areas, and Customer
is solely responsible for determining if use of a particular dial-up number
will cause Customer to incur long-distance, toll or other charges.
Use
of this dial-up account for high volume or commercial use (e.g., revenue
generation, advertising, etc.) is prohibited.
The Dial-Up Service is not meant to be used as a dedicated Internet
connection. Total Call International
provides a consumer dial-up service and is not designed for people who require
an “always on” connection with long periods of inactivity. Customer agrees not to use any automatic
method to avoid inactivity disconnection or to use a re-dialer to automatically
reconnect once disconnected.
Total
Call International at its sole discretion may suspend or terminate Customer’s
dial-up service. Customer will be
responsible for paying the entire current month billing if service is
terminated. Prices are subject to
change with 30 days notice.
Monitoring
Total Call
International and its suppliers have no obligation to monitor the Services, but
may do so and disclose information regarding use of the Services if Total Call
International or its suppliers, in their sole discretion, believes that it is
reasonable to do so, including to: (i) satisfy laws, regulations, or
governmental or legal requests; (ii) operate the Services properly; or (iii)
protect itself and its other users and customers. Total Call International may
disconnect Customer’s service if Total Call International determines that
Customer is in violation of the Agreement, and Customer will be responsible for
any applicable Disconnection Fees.
Fees and
Payments
Customer
shall pay for all Services and Products that Total Call International furnishes
to Customer at the applicable prices set forth in Customer’s order. Customer
shall also pay any repair, telephone charges and charges for inspection,
installation or repair of wiring performed on Customer’s premises for the
additional charges set forth in the Customer Policies. Monthly service charges,
upgrades/downgrades and move orders are pro-rated. Upon Installation (as
defined in Setup), Customer shall be invoiced in arrears for all upfront fees
and in advance for the pro-rated portion of the first month’s fees for Services
for which Installation has occurred. Each month on Customer’s Anniversary Date
(as defined below), Total Call International shall bill Customer in arrears for
non-recurring and pro-rata monthly charges (if any) as well as in advance for
the monthly fees for the Services. The Anniversary Date is the date Customer
created an account with Total Call International by registering as a Customer
of Total Call International(“Anniversary Date”). . All payments are due within
thirty (30) days of the invoice date, and if Customer fails to pay any bill
when due, Total Call International shall have the right to: (i) debit the
Customer’s credit card for the overdue amounts; or (ii) terminate the unpaid
Services or the Agreement for breach if Customer has not paid the overdue
amounts within fifteen (15) days of receipt of notice of such overdue amounts,
and Customer shall be responsible for all applicable Disconnection Fees. For
all late payments, Customer may pay interest on overdue amounts at the lesser
of (i) interest at the rate of 1.5% per month on the outstanding balance due;
or (ii) the maximum interest charges permitted under applicable law. Returned
checks may be charged a $25.00 processing fee.
Taxes
Customer
shall be responsible for and shall pay all applicable federal, state and local
taxes, fees, charges, surcharges or other similar exaction (hereinafter called
“taxes”) imposed on or with respect to the Services and/or Products that
are the subject of this Agreement whether such taxes are imposed directly upon
Customer or upon Total Call International. For purposes of this Section, taxes
do not include any taxes that are imposed on or measured by the net income of
Total Call International.
Term and
Termination
The term
of this Agreement will run from the Effective Date until the end of the Service
Commitment from the last Installation of a Service. The Services and the
obligation to pay for such Services will continue after the end of their
respective Service Commitment on a month-to-month basis, unless either party
terminates the Agreement or cancels such Service by providing at least thirty
(30) days prior written notice. Written notice of termination may be sent in
the form of an email to care@totalcallisp.com
<mailto:care@totalcallisp.com> <<mailto:care@totalcallisp.com>> or via fax to 213-239-0952. Either party may
terminate this Agreement or a particular Service at any time by providing at
least thirty (30) days prior written notice, except that if Customer terminates
this Agreement prior to the end of the Service Commitment of any of the
Services or cancels a particular Service prior to the end of its Service
Commitment, or if Total Call International terminates a Service or this
Agreement for cause prior to the end of a Service Commitment, Customer will be
responsible for all applicable disconnection fees (“Disconnection Fees”).
Applicable Disconnection Fees shall be the lesser of (a) the fees for the
balance of the Service Commitment or (b) the Disconnection Fee. The Disconnection
Fees are $250.00 per DSL line. Customer may upgrade to a higher grade of
service without an upgrade charge as long as they are upgrading within the same
class of technology (e.g., ADSL to ADSL or T1 to T1 technology). However,
Customer will be responsible for any additional installation and equipment
charges, and/or any applicable Disconnection Fees for the original service that
are necessary to effect the upgrade. Likewise, Customer may downgrade without a
downgrade charge provided they are downgrading within the same class of
technology. However, additional installation and equipment charges will apply
if necessary to affect the downgrade request. In addition, if the Customer has
not met the Service Commitment of the existing service before downgrading,
Customer will be responsible for any applicable Disconnection Fees.
Disclaimers
THE
SERVICES AND PRODUCTS ARE PROVIDED ON AN "AS IS" BASIS, AND
CUSTOMER’S USE THEREOF IS AT ITS OWN RISK. TOTAL CALL INTERNATIONAL DOES NOT
MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES OR
CONDITIONS, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE,
AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
TOTAL CALL INTERNATIONAL DOES NOT WARRANT THAT THE SERVICES WILL PERFORM AT A
PARTICULAR SPEED, OR WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CUSTOMER’S
SOLE AND EXCLUSIVE REMEDY FOR ANY SERVICE RELATED CLAIM WILL BE TO CONTACT CUSTOMER
CARE.
Limitation
on Liability
UNDER NO
CIRCUMSTANCES SHALL EITHER TOTAL CALL INTERNATIONAL OR ITS SUPPLIERS BE LIABLE
FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES OF ANY NATURE, OR
FOR ANY LOST REVENUES, LOST PROFITS OR LOSS OF BUSINESS REGARDLESS OF THE CAUSE
OF ACTION, AND WHETHER OR NOT FORESEEABLE. IN NO EVENT SHALL TOTAL CALL
INTERNATIONAL’S OR ITS SUPPLIERS' CUMULATIVE LIABILITY EXCEED THE FEES PAID BY
CUSTOMER THROUGH THE MONTH IN WHICH THE CLAIM AROSE EVEN IF TOTAL CALL INTERNATIONAL
IS INFORMED OF THE POSSIBLITY OF SUCH DAMAGES. In addition, Total Call
International and its suppliers will not be responsible for any damages,
losses, expenses or costs that Customer suffers AS A RESULT OF: (i) any
interruption or failure of the Services OR Products; (ii) the downloading or
use of any information, data or materials obtained via the Services OR FROM THE
INTERNET; (iii) any failure to complete a transaction on the internet OR USING
THE SERVICES or ANY loss of data due to delays, non-deliveries, mis-deliveries,
or Service interruptions; (iv) ANYTHING BEYOND THE REASONABLE CONTROL OF TOTAL
CALL INTERNATIONAL, INCLUDING BUT NOT LIMITED TO any interRuption or failure of
a third party’s services, software, equipment or network; (v) any unauthorized
use or modification of Services or Products or combination of Services or
Products with other services, products or equipment; (VI) viruses, worms,
trojan horses, or other undesirable data or software; or (vii) the attempt by
unauthorized users (e.g., hackers) to obtain access to Customer’s data,
web-site, computers, or networks.
Confidentiality
Customer
acknowledges that the Products contain proprietary and confidential information
of Total Call International and its suppliers. Customer agrees to not disclose
the Products to third parties without the prior written consent of Total Call
International and the suppliers identified to Customer in Total Call
International's response to such notice. Customer shall not copy, modify,
resell or distribute the Products, create or recreate the source code for the
Products, or re-engineer, reverse engineer, decompile, disassemble or attempt
in any way to disable, deactivate or render ineffective the password protection
in the Products. Customer shall not remove, erase, tamper with or fail to
preserve any copyright, trademark, or other proprietary notice printed or
stamped on, affixed to, or encoded or recorded in the Products
Choice of
Law and Binding Arbitration
This
Agreement shall be deemed to have been made in, and shall be construed pursuant
to the laws of the State of California and the United States without regard to
conflicts of laws provisions thereof. Any waivers or amendments shall be
effective only if made in writing. This Agreement is the complete and exclusive
statement of the mutual understanding of the parties and supersedes and cancels
all previous written and oral agreements and communications relating to any of
the subject matter of this Agreement. Binding arbitration shall be the sole and
exclusive remedy for resolution of Disputes between the parties. Such Dispute
shall be submitted for arbitration in Los Angeles, California under the rules
of the American Arbitration Association (“AAA”). The arbitrator's
decision will be final and entered into any court of competent jurisdiction.
The prevailing party will be entitled to recover its attorney's fees and costs
in connection with such arbitration. Should either party bring a Dispute in a
forum other than AAA, the arbitrator may award the other party its reasonable
costs and expenses, including attorneys’ fees, incurred in staying or
dismissing such other proceedings or in otherwise enforcing compliance with
this Dispute resolution provision. Customer understands that Customer would
have had a right to litigate Disputes through a court, and that Customer has
expressly and knowingly waived that right and agreed to resolve any Disputes
through binding arbitration. This arbitration agreement is made pursuant to
a transaction involving interstate commerce, and shall be governed by the
Federal Arbitration Act, 9 U.S.C. Section 1, et seq. For the purposes of
this section, the term “Dispute” means any dispute, controversy, or
claim arising out of or relating to (i) this Agreement, its interpretation, or
the breach, termination, applicability or validity thereof. “Total Call
International” includes its subsidiaries, affiliates, directors, officers,
employees, beneficiaries, agents or assigns; the term “Customer” means
you, the original account holder, its agents, employees, directors, officers,
beneficiaries, or heirs. Under California Civil Code Section 1789.3, if
Customer is a resident of California, Customer is entitled to the following
specific consumer rights information: the Complaint Assistance Unit of the
Division of Consumer Services of the Department of Consumer Affairs may be
contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814 or by
telephone at 916-445-1254.
Force
Majeure
Neither
party shall be responsible for any failure to perform due to unforeseen
circumstances or to causes beyond such party's reasonable control, including
but not limited to acts of God, changes in governmental laws, rules,
regulations or orders, war, terrorist acts, insurrection, riot, embargoes, acts
of civil or military authorities, fire, floods, accidents, strikes, or
shortages of transportation, facilities, fuel, energy, labor or materials.
Customer acknowledges that certain of Total Call International’s suppliers
establish the prices charged to Total Call International based on governmental
laws, rules, regulations, orders and decisions. If any of the prices charged to
Total Call International by any of its suppliers increase as a result of
changes to governmental rules, laws or regulations or pursuant to new decisions
or orders issued by applicable regulatory bodies, Total Call International
reserves the right to increase the price charged to Customer and/or change the
terms of service hereunder, effective thirty days following notice to Customer.
If Customer does not agree to accept the new pricing and/or revised terms,
Customer may terminate the affected Services without penalty within thirty days
of the date of such notice. Any continued use of the Services thirty days after
the notice date shall be deemed acceptance of the new prices and/or terms.
General
The
relationship between the parties created by this Agreement is that of
independent contractors and not partners, joint-venturers or agents. All
remedies available to either party for breach of this Agreement are cumulative
and may be exercised concurrently or separately, and the exercise of any one
remedy shall not be deemed an election of such remedy to the exclusion of other
remedies. Customer may not assign this Agreement without the prior written consent
of Total Call International, which consent shall be at Total Call
International's sole discretion. Total Call International may assign this
Agreement. Except as expressly provided herein, no modification to this
Agreement shall be effective unless in writing and signed by an authorized
representative of Total Call International. If any provision of this Agreement
is held to be invalid or unenforceable under any circumstances, its application
in any other circumstances and the remaining provisions of this Agreement shall
not be effected. Notices to Customer may be sent to the facsimile number, email
address or address listed on the Order Form. Customer consents to receiving all
notices hereunder through electronic means. Notices to Total Call International
should be sent to Total Call International ATTN: Customer Care Center, 707
Wilshire Blvd., Los Angeles, California, 90017. The Order Form and these Terms
and Conditions contain the entire understanding of the parties with regard to
this matter and supersede any prior written or oral communications between the
parties with respect to the subject matter of this Agreement. The provisions in
this Agreement shall survive any termination of this Agreement.
Customer
Provided CPE for Internet Services
A Customer
ordering Internet Services may provide its own CPE; provided that such
CPE is compatible with the Total Call International network. Total Call
International will periodically publish guidelines for determining the
compatibility of CPE with the Total Call International network, a copy of which
can be obtained from Total Call International’s Customer Care Center by calling
800-631-4724. Total Call International may change the guidelines for
compatibility with Total Call International’s retail offerings at any time.
Customer agrees to the following terms and conditions related to such
Customer-provided CPE:
a) Compatibility:
Customer is solely responsible for ensuring that Customer-provided CPE complies
with the compatibility guidelines published by Total Call International. If
Customer determines after installation that such CPE is not compatible with the
Total Call International network, Customer may: (i) disconnect the order, in
which case Customer will be liable for all applicable Disconnection Fees that may
apply; or (ii) request that Total Call International provide a Total Call
International CPE, in which case Total Call International will charge Customer
Total Call International’s then-standard fee for such CPE and charge Customer
for the Field Service Technician dispatch for the setup of such Total Call
International-provided CPE, each as set forth in the Customer Policies.
b) Provisioning:
Customer is solely responsible for ensuring the proper functioning of
Customer-provided CPE. The Total Call International Field Service Technician
will not provide any assistance in the setup or configuration of
Customer-provided CPE at the time of installation. If, at the time of
installation, Customer requests that Total Call International supply Customer
with a Total Call International CPE, the Field Service Technician will supply
and configure a Total Call International CPE, and Total Call International will
bill Customer the then standard fees for such CPE.
c) Management
of CPE: Customer is solely responsible for the management of
Customer-provided CPE. Total Call International’s Customer Care Center will not
provide any assistance with the configuration or maintenance of
Customer-provided CPE. If Total Call International dispatches a Field Service
Technician in response to a trouble ticket ultimately determined by Total Call
International to be the result of the Customer-provided CPE, Total Call
International will charge Customer for the Field Service Technician dispatch.
d) Warranty
Disclaimer: In addition to the warranty disclaimers elsewhere in this
Agreement, Total Call International explicitly disclaims any and all warranty
or maintenance responsibility for Customer-provided CPE. Any warranty claims,
maintenance, or repairs for Customer-provided CPE will be the sole
responsibility of Customer. However, if Customer had initially purchased such
CPE through Total Call International or one of Total Call International’s ISP
partners, Total Call International will honor any remaining warranty pursuant
to the terms of this Agreement.
