TERMS AND CONDITIONS OF SERVICE
These Terms and Conditions of Service are incorporated into, and constitute an essential part of, the South Point Communications Master Service Agreement (the “Agreement") between you (the “Customer") and South Point Communications (“South Point"). Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to them in the Agreement.
1. Regulation and Underlying Costs. The rates set forth in the Agreement are subject to the imposition of new regulations, modifications of existing regulations, new interpretation, application or enforcement of, or exercise of authority related to, any regulation or finding of any federal, state and/or local regulatory agency, legislative body, or court of competent jurisdiction, including, without limitation, the imposition of any charges, surcharges, and/or taxes in reliance on or as a result of the same (“Regulatory Change"). The rates set forth in the Agreement are also subject to the imposition of new or increased charges from South Point’s underlying carriers, vendors and/or service providers (“Vendors"). South Point reserves the right, at any time to (i) to pass through to customer all charges, surcharges, taxes or increased Vendor charges directly or indirectly related to the Services, and/or (ii) modify the rates and/or terms and conditions of the Agreement to reflect the impact of such Regulatory Change or increase in Vendor charges, including, without limitation, the impact of any actions by third parties in connection with such Regulatory Change or increase in Vendor charges.
2. Billing Disputes. Only disputes made in good faith, in a timely manner and properly documented as required herein, as determined by South Point in its sole discretion, will be considered by South Point. To meet these requirements, Customer must provide South Point with written notice of any disputed charge(s) within thirty (30) days of the original Due Date for such charges. Along with such notice, Customer shall set forth in detail all grounds for disputing each charge and provide all documents supporting each dispute. Customer shall not have the right to withhold any amount not properly disputed. South Point and Customer shall attempt in good faith promptly to resolve any dispute within thirty (30) days of South Point’s receipt of notice of that dispute. If a dispute is not resolved, South Point shall have the right to determine in good faith the merit of each dispute and Customer’s associated payment obligation. If South Point determines that any amount withheld in dispute is owed, Customer shall pay that amount within ten (10) days of its receipt of written notice from South Point of such determination, plus interest at the lower of 1.5% per month or the maximum rate permissible under applicable state law, calculated from the Due Date until the date payment is received by South Point. Failure to pay such amount in full within such ten (10) day period shall be a breach hereof and shall entitle South Point, in addition to its other remedies at law or equity, to terminate all Services to Customer without notice and without liability of any kind or amount. If South Point determines that any amount withheld in dispute is not owed, South Point shall issue a credit for that amount on the first invoice issued by South Point for a full billing cycle after South Point’s determination is made. Customer’s exclusive remedy for issues relating, whether directly or indirectly, to any disputes shall be in the forum and pursuant to the laws as set forth in the Agreement.
3. Reinstatement. Service will only be reinstated once all outstanding bills have been paid in full and any other cause for suspension or disconnection has been remedied in full. A reinstatement fee of $500 will be charged to reestablish Service that has been suspended or disconnected. Notwithstanding the foregoing, Customer understands and agrees with respect to Service that has been suspended or disconnected that: (a) Customer is responsible for payment of all applicable Early Termination Charges for such Service; (b) South Point may, in its sole discretion, impose new deposit requirements, connection fees and minimum term commitments and require that Customer execute a new Service Order as a prerequisite before Service will be reinstated; and (c) if Service has been suspended or disconnected for 48 hours and the cause for such suspension or disconnection remains uncured for such period, South Point may, in its sole and absolute discretion, refuse to reinstate Service (and such refusal shall not alleviate customer from any and all applicable Early Termination Charges or other liabilities provided for in the Agreement).
4. Service Interruption.
(a) Outage Credits – General. In the event Customer experiences any interruption in its Service that it believes to be material, Customer shall immediately notify South Point at firstname.lastname@example.org and request that South Point open a trouble ticket to investigate. Before notifying South Point, Customer shall ascertain that the interruption is not within Customer’s control (e.g. Customer equipment, power, wiring, networking, etc.) and Customer shall be liable to reimburse South Point for all costs incurred by South Point in connection with an interruption that was within Customer’s control. Customer shall retain each trouble ticket number opened on its behalf. South Point’s mean time to repair (“MTTR") goal is 24 hours. Notwithstanding the reporting of an interruption in its Service, Customer shall only be entitled to a credit where South Point determines that each of the following conditions exist: (i) the interruption (“Outage") exists for a period of time of not less than two (2) continuous hours and renders the Service “unavailable" (as defined in the Specification) during that entire time period (and which is not a scheduled outage); (ii) a trouble ticket is opened by the Customer with South Point at the commencement of the Outage; and (iii) a request for credit is made in writing to South Point within thirty (30) days of the date the trouble ticket was opened. Customer acknowledges that it is reasonable to base Customer’s entitlement to credits on each of the conditions identified above and it is reasonable to limit Customer’s recovery to the outage credit described below (“Outage Credit"). Customer waives all rights to damages or to other relief in the event of an Outage. The length of each Outage shall be calculated in hours and shall include fractional portions thereof. An Outage shall be deemed to have commenced upon verifiable notification thereof by Customer to South Point. Each Outage shall be deemed to terminate upon restoration of the affected Service as evidenced by appropriate network tests by South Point. All Outage Credits shall be credited on the next monthly invoice for the affected Services and the total of all Outage Credits applicable to or accruing in a given month shall not exceed the amount payable by Customer to South Point for that same month for such Services. Except as provided in Section 7 below, the Outage Credits described in this Section of the Agreement shall be the sole and exclusive remedy of Customer in the event of any Outage.
(b) Outage Credits for Private Line and Local Access. Notwithstanding the foregoing, the Outage Credit formula that shall apply to Private Line Service and Local Access Service shall be as follows:
Outage Credit = [(Hours of Outage – 2 hours)/720 Hours] x Monthly charge of Affected Facility
Private Line and Local Access Outage Credits shall apply to the charges for the total mileage between end terminals of any Facility affected by an Outage: provided, however, that if any portion of the affected Facility remains beneficially used or useable by Customer between any intermediate terminals (where Customer has installed drop and insert capability) or end terminals, the Outage Credit shall not apply to that pro-rata portion of the mileage. The length of each Outage shall be calculated in hours and shall include fractional portions thereof.
5. Credit. Customer’s execution of the Agreement signifies Customer’s acceptance of South Point’s initial and continuing credit approval procedures and policies as a condition of South Point providing Services. South Point reserves the right to withhold initiation of full implementation of Services under the Agreement pending initial satisfactory credit review and approval thereof which may be conditioned upon terms specified by South Point including, but not limited to, security for payments due hereunder in the form of a cash deposit via wire transfer, guarantee, irrevocable letter of credit from a financial institution, or other forms of security acceptable to South Point, in its sole discretion. In instances where Customer is required to provide South Point with security in the form of a cash deposit, the cash deposit shall bear interest at the rate for telephone security deposits set by the Public Utility/Service Commission in the state where Customer is headquartered. In certain situations, South Point shall require Customer to pre-pay for all Services provided by South Point in cash, via wire transfer. Initial prepayment amount for service is one and one-half (1.5) months’ estimated usage. Regardless of the initial prepayment amount, it shall be the responsibility of Customer to always maintain sufficient prepayment credit balance to cover weekends and holidays. If Customer expects usage of Service to increase, it must make appropriate adjustments to amount of prepayment. South Point retains the right to suspend service without notice or liability to Customer if at any time Customer does not have sufficient prepayment credit balance to cover estimated usage at any time. Upon request by South Point at any time, Customer agrees to provide financial statements or other indications of financial circumstances. As may be determined by South Point, in its sole discretion at any time, if the financial circumstances or payment history of Customer is, or becomes unacceptable, South Point may require a new or increased deposit, pre-payment, guarantee or irrevocable letter of credit at South Point’s discretion, to secure Customer’s payments for the remainder of the Term and such deposit, pre-payment, guarantee or irrevocable letter of credit shall be provided within five (5) days of written request. Failure of Customer to provide the requested security pursuant to the Agreement shall constitute a breach of the Agreement and South Point may suspend or terminate Services until such time as the required security is received.
6. Non-Disclosure and Publicity. Neither Party shall disclose to any third party the terms and conditions of the Agreement without the prior written consent of the other Party.
7. Force Majeure. 7.1 Except as provided in subparagraph 7.2 below, South Point shall not be liable for any failure of performance hereunder due to causes beyond its reasonable control, including but not limited to acts of God, fire, explosion, vandalism, fiber optic cable cut, storm or other similar catastrophes, any law, order, regulation, direction, action or request of the United States government, or of any other government, including state and local governments having jurisdiction over either of the Parties, or of any department, agency, commission, court, bureau, corporation or other instrumentality of any one or more said governments, or of any civil or military authority; national emergencies; insurrections; riots; wars; or strikes, lock-outs, work stoppages or other labor difficulties. 7.2 If any such failure of performance on the part of South Point shall be for: (i) thirty (30) days or less, then the Agreement shall remain in effect but Customer shall be relieved of its obligation to pay for that portion of the Facilities and/or Services affected for the period of such failure of performance; or (ii) more than thirty (30) days, then Customer may terminate the provisions of the Agreement only insofar as they relate to the Facilities and/or Services so affected.
8. Limitation of Liability. IN NO EVENT SHALL SOUTH POINT OR ANY AFFILIATED PERSON OR ENTITY BE LIABLE TO CUSTOMER OR ANY AFFILIATED PERSON OR ENTITY FOR ANY LOSS OF PROFIT OR REVENUE OR FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, RELIANCE, COST OF COVER, SPECIAL, PUNITIVE OR SIMILAR OR ADDITIONAL DAMAGES, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, INCURRED OR SUFFERED AS A RESULT OF UNAVAILABILITY, PERFORMANCE, NON-PERFORMANCE, TERMINATION, BREACH, OR OTHER ACTION OR INACTION UNDER THE AGREEMENT, EVEN IF CUSTOMER OR ANY AFFILIATED PERSON OR ENTITY ADVISES SOUTH POINT OR ANY AFFILIATED PERSON OR ENTITY OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. SOUTH POINT SHALL NOT BE RESPONSIBLE FOR DAMAGE TO PROPERTY OR FOR INJURY TO ANY PERSON ARISING FROM THE INSTALLATION, MAINTENANCE OR REMOVAL OF EQUIPMENT OF THE PROVISION OF SERVICES, AND CUSTOMER HEREBY INDEMNIFIES AND HOLDS HARMLESS SOUTH POINT FROM AND AGAINST ANY LIABILITIES INCLUDING ATTORNEY’S FEES ARISING OUT OF SUCH DAMAGE OR INJURY. CUSTOMER’S REMEDIES FOR CLAIMS UNDER THE AGREEMENT SHALL BE STRICTLY LIMITED TO OUTAGE CREDITS AS DESCRIBED HEREIN.
9. Indemnification. Each Party (the “Indemnifying Party") shall defend, indemnify and hold harmless the other Party and its directors, officers, employees, and agents, successors and assigns (collectively, the “Indemnified Party") from all claims (each, a “Claim") by any third party for damages, costs, expenses and liabilities, including reasonable attorney’s fees and disbursements arising in connection with the Indemnifying Party’s performance of its obligations and duties under the Agreement. The Indemnified Party shall promptly notify the Indemnifying Party of any such Claim.
10. Disclaimer of All Warranties. SOUTH POINT SPECIFICALLY AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER OR THE FACILITIES AND EQUIPMENT FURNISHED PURSUANT TO THE AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11. Equipment. Any equipment provided to Customer by South Point for use in conjunction with a Facility will be subject to the terms and conditions set forth in the Agreement. South Point will “drop ship" the equipment to Customer via certified carrier with tracking technology. Customer is responsible to be present for receipt of delivery. If at anytime during the applicable Service Order Term equipment fails and is in need of replacing, South Point will provide replacement equipment. The equipment failure shall be determined by the South Point’s NOC working with the customer in conjunction of South Point’s technical staff. Once determined by South Point, in its sole discretion, that the equipment is need of replacing, South Point will ship replacement equipment to Customer’s site on the next business day if determined by noon CST. If South Point installs or provides equipment on Customer’s premises for the purpose of enabling South Point to provide the Facility to Customer, Customer agrees to provide South Point reasonable access into Customer’s premises for the purpose of installation, demonstration, inspection, maintenance, repair and removal of the equipment, as well as South Point’s installers with a safe working environment. Additionally, Customer acknowledges that it will have no right, title or interest in any equipment that South Point installs. South Point and Customer agree that the equipment will not become a fixture and Customer shall keep the equipment free from all liens, charges and encumbrances. Customer agrees: (1) to use the equipment only for the purpose of receiving Services ordered from South Point and no other purpose; (2) to prevent any connections to the equipment that are not expressly authorized by South Point; (3) to prevent tampering, altering or repair of the equipment, or inside wiring, by any person other than South Point’s authorized personnel; (4) to assume complete responsibility for improper use, damage or loss of such equipment regardless of cause (including damage or loss caused by force majeure events), except to the extent caused by South Point or its suppliers; and (5) to return the equipment in good condition, ordinary wear and tear resulting from proper use excepted, within 14 upon discontinuance of Service. In the event the equipment is not returned in good condition, Customer agrees to pay South Point the full purchase value of each equipment device. Customer acknowledges that South Point will provide a best effort attempt to support 3rd party equipment not provided by South Point and that South Point does not warrant or guarantee it’s service will be compatible with said 3rd party equipment. Customer agrees to assume all responsibility for maintaining and securing 3rd party equipment.
12. No Right To Intellectual Property. The Agreement confers no right to use the name, service marks, trademarks, copyrights, or patents of either Party except as expressly provided herein. Neither Party shall take any action, which would compromise the registered copyrights or service marks of the other.
13. Compliance With Law. In conjunction with the Agreement, Customer shall at all times comply with all applicable federal, state, and local statutes, ordinances, regulations and orders of any commission or other government body in the jurisdictions in which you use the Services, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights and restrictions concerning call recording, call monitoring, call interception and/or direct marketing or telemarketing. Customer is solely responsible for ensuring that your use of the Services is in compliance with such regulations.
14. Notices. All notices, demands, consents, requests, approvals, Customer name and address changes, billing inquiries and requests, or other communication which either Party is required or desires to give or make upon or to the other Party shall be in writing and will be effective when sent, if hand delivered or faxed (with confirmation of receipt); on the next business day if sent by a generally recognized overnight delivery service (subject to confirmation from the service); or on the date received if sent by United States certified or registered mail, return receipt requested. Such Notices will be sent to the addresses set forth in the Agreement on the signature page, unless either Party changes its address by giving written notice of such changes to the other Party in accordance with the Agreement. Customer acknowledges that rate change notices may be delivered by South Point to Customer by email or facsimile and shall be deemed to be delivered when received by Customer.
15. No Third Party Beneficiaries. The Agreement is being executed for the sole and exclusive benefit of the Parties hereto and is not for the benefit of any third parties. The execution hereof shall not create any obligations or confer any rights on any person or entity other than the Parties hereto.
16. Obligations of Customer. Customer acknowledges that it is Customer’s sole responsibility to supply immediate notice to South Point if Customer changes any of its contact information. If at any time Customer’s name or billing information changes from that which is set forth below, Customer shall have five (5) days to inform South Point of such changes in accordance with the Notice provisions set forth in the Terms/Conditions.
17. Relationship of Parties. Neither the Agreement nor the provision of Service hereunder shall be deemed to create any joint venture, partnership or agency between South Point and Customer; the Parties are independent contractors and shall not be deemed to have any other relationship. Neither Party, nor any agent or representative of either Party, shall have, or hold itself out as having; the power or authority to bind or create liability for the other Party by its intentional or negligent act and no claimed act of authority shall have any binding effect.
18. Termination of Services. The term of each Service Order shall be set forth in the Service Order. Customer may terminate any Service before expiration of the term of the applicable Service Order by providing South Point with written notice at least sixty (60) days in advance. In such event, Customer shall pay South Point a mandatory early termination charge (the “Early Termination Charge") as stipulated in the Agreement. Customer hereby agrees: (a) the damages that South Point will incur as a result of such termination will be impossible to ascertain; (b) the Early Termination Charge is reasonable and fairly represents the amount of damages that South Point will sustain as a result of such early termination; (c) the Early Termination Charge establishes liquidated damages and shall not be construed as a penalty of any kind; and (d) Customer waives any right to ascertain South Point’s actual damages in the event of such early termination. Payment of an Early Termination Charge shall not relieve the Customer of its obligation to pay any charges incurred under the applicable Service Order prior to the effective date of such termination. Any written notice pursuant to this Section 21.1 must be sent by an authorized representative of Customer in the manner outlined in these T&Cs and must specifically describe the Service to be terminated and the reasons therefor. Customer must also reasonably cooperate with South Point to identify the specific circuit(s) or Service(s) being terminated, and Customer agrees to email its disconnect notice to “email@example.com". Customer understands and agrees that billing will only cease when all information reasonably required by South Point has been provided.
19. Charges and Payment. All charges shall be set forth in the applicable Service Order(s). Monthly recurring charges (MRCs) shall be invoiced by South Point on a monthly basis in advance and nonrecurring charges shall be invoiced in arrears each month for the previous month’s usage; provided, however, that South Point shall have the right to bill Customer for any additional recurring and non-recurring charges incurred during any billing period for up to two (2) years following the close of that billing period. In addition, South Point may, in its sole discretion, request a deposit amount equal to the last monthly invoice or the projected amount of the invoice for the upcoming billing period. Customer shall make all payments for all amounts not properly disputed as required hereunder by the due date printed on the invoice (the “Due Date"). Customer shall advise South Point in writing in the event that it does not receive an invoice for any billing period; provided, however, that the failure by South Point to deliver an invoice during any billing period and/or the failure by Customer to provide the required notice shall not relieve Customer of its absolute obligation to make all payments required hereunder in a full and timely manner. In the event that the Start of Service Date for any Facility falls on any day other than the first day of any month, the first invoice to Customer shall consist of: (1) the pro-rated portion of the applicable monthly charge covering the period from the Start of Service Date to the first day of the subsequent month; and (2) the monthly charge for the following month. In addition to its other rights hereunder, in the event that any amounts are not paid in full by the Due Date, South Point may: (1) impose a late payment charge of the lower of 2.0% per month or the highest legally permissible rate, and such late charge shall be payable upon delivery of South Point’s next invoice to Customer; (2) require security in the amount and form determined by South Point, in its sole discretion, as a condition of the continued provision of all such Facilities and/or Services; and/or (3) suspend or terminate the Services immediately without notice and without liability of any kind or amount. South Point reserves the right to replace current facilities with new facilities, including but not limited to loops, IP ports and IOC components. In the event South Point seeks collection of any amounts not paid in full by the Due Date, either informally or through formal legal action, Customer shall be liable for all costs of collection, including but not limited to reasonable attorney’s fees and court costs (if applicable). Any applicable sales, use, commercial or other taxes or fees imposed with respect to Facilities provided by South Point (other than taxes on South Point’s income), as well as any other fees or assessments imposed by any governmental or quasi-governmental authority (including any private company or the like acting on behalf of such governmental or quasi-governmental authority) and any fees or charges which have the effect of increasing South Point’s cost of providing such Facilities, shall also be payable by Customer in addition to the other charges set forth in this Agreement. South Point shall have the right to adjust its rates and charges, impose additional rates, charges or surcharges or change any other term of this Agreement (collectively, a “Change"). A Change shall become effective thirty (30) days after written notice of the Change has been provided to Customer; provided, however, that Customer may terminate any Service adversely affected by the Change (such termination to be effective upon the date the Change would have taken effect) by giving written notice of termination to South Point within ten (10) days of its receipt of notice of the Change from South Point. If Customer does not terminate the adversely affected Service within ten (10) days of such notice, any Change shall be effective for the remainder of the Term. South Point may, in its sole discretion, provide Customer with DNS support. If South Point chooses to provide Customer with DNS support, South Point shall charge Customer the sum of $1 per month to provide DNS and $2.50 per month to provide reverse DNS. The above DNS charges include loading of up to 10 DNS records. If Customer needs more than 10 there is a charge of $5.00 per additional 10 DNS records. In addition, South Point shall charge Customer the sum of $50 for every DNS or reverse DNS change made by South Point in excess of one (1) change per calendar quarter. South Point may, in its sole discretion, provide Customer with technical support. In the event South Point provides Customer with technical support outside the scope of normal trouble shooting, South Point shall charge Customer at a rate of $250 per hour for same. South Point shall charge Customer a fee of $50 for every NSF check received by South Point.
20. Recording of Calls. South Point hereby puts Customer on notice that any calls between Customer and South Point personnel may be recorded for quality assurance and other commercially reasonable purpose. Customer hereby acknowledges and agrees that such calls may be recorded.
21. Attorneys Fees and Costs. In the event South Point seeks to enforce any of the terms or conditions of this Agreement or protect any of its rights or privileges hereunder, either informally or through formal legal action, Customer shall be liable for all costs incurred by South Point as a result thereof, including but not limited to reasonable attorney’s fees and court costs (if applicable).
22. CPNI. South Point Communications is committed to maintaining the privacy of its customers. We are obliged to provide you with protections to certain information about how you use your Services. However, that information can help us customize and improve Services we offer you.
In this section, we describe what information we protect and how we protect it.
1. CPNI PROTECTIONS
As a customer of our Services, you have the right, and South Point Communications has a duty, under federal law, to protect the confidentiality of certain types of Services, including: (1) information about the quantity, technical configuration, type, destination, location, and amount of your use of your Services, and (2) information contained on your telephone bill concerning your Services you receive. That information, when matched to your name, address, and telephone number is known as “Customer Proprietary Network Information" or “CPNI" for short. Examples of CPNI include information typically available from telephone-related details on your monthly bill, technical information, type of Service, current telephone charges, long distance and local Service billing records, directory assistance charges, usage data and calling patterns.
From time to time, South Point Communications would like to use the CPNI information it has on file to provide you with information about South Point Communications’ communications-related products and Services or special promotions. South Point Communications’ use of CPNI may also enhance its ability to offer products and Services tailored to your specific needs. Accordingly, South Point Communications would like your approval so that South Point Communications may use this CPNI to let you know about communications-related Services other than those to which you currently subscribe that South Point Communications believes may be of interest to you. IF YOU APPROVE, YOU DO NOT HAVE TO TAKE ANY ACTION; YOUR SIGNATURE ON THE SERVICE AGREEMENT SIGNIFIES YOUR CONSENT THAT SOUTH POINT COMMUNICATIONS MAY USE AND DISCLOSE CPNI AS DESCRIBED HEREIN.
However, you do have the right to restrict our use of your CPNI. YOU MAY DENY OR WITHDRAW SOUTH POINT COMMUNICATIONS’ RIGHT TO USE YOUR CPNI AT ANY TIME BY CALLING 1-888-792-2834. If you deny or restrict your approval for South Point Communications to use your CPNI, you will suffer no effect, now or in the future, on how South Point Communications provides any Services to which you subscribe. Any denial or restriction of your approval remains valid until your Services are discontinued or you affirmatively revoke or limit such approval or denial.
In some instances, South Point Communications will want to share your CPNI with its independent contractors and joint venture partners in order to provide you with information about South Point Communications’ communications-related products and Services or special promotions. Prior to sharing your CPNI with its independent contractors or joint venture partners, South Point Communications will obtain written permission from you to do so.
3. CUSTOMER AUTHENTICATION
Federal privacy rules require South Point Communications to authenticate the identity of its customer prior to disclosing CPNI. Customers calling South Point Communications’ Customer Service center can discuss their Services and billings with a South Point Communications representative once that representative had verified the caller’s identity. There are three methods by which South Point Communications will conduct customer authentication:
1) by having the customer provide a pre-established password and/or PIN;
2) by calling the customer back at the telephone number associated with the Services purchased; or
3) by mailing the requested documents to the customer’s address of record.
Passwords and/or PINs may not be any portion of the customer’s social security number, mother’s maiden name, amount or telephone number associated with the customer’s account or any pet name. In the event the customer fails to remember their password and/or PIN, South Point Communications will ask the customer a series of questions known only to the customer and South Point Communications in order to authenticate the customer. In such an instance, the customer will then establish a new password/PIN associated with their account.
4. NOTIFICATIONS OF CERTAIN ACCOUNT CHANGES
South Point Communications will be notifying customers of certain account changes. For example, whenever an online account is created or changed, or a password or other form of authentication (such as a “secret question and answer") is created or changed, South Point Communications will notify the account holder. Additionally, after an account has been established, when a customer’s address (whether postal or e-mail) changes or is added to an account, South Point Communications will send a notification. These notifications may be sent to a postal or e-mail address, or by telephone, voicemail or text message.
5. DISCLOSURE OF CPNI
South Point Communications may disclose CPNI in the following circumstances:
- When the customer has approved use of their CPNI for South Point Communications or South Point Communications and its joint venture partners and independent contractors (as the case may be) sales or marketing purposes.
When disclosure is required by law or court order.
To protect the rights and property of South Point Communications or to protect customers and other carriers from fraudulent, abusive, or unlawful use of Services.
When a carrier requests to know whether a customer has a preferred interexchange carrier (PIC) freeze on their account.
For directory listing Services.
To provide the Services to the customer, including assisting the customer with troubles associated with their Services.
To bill the customer for Services.
6. PROTECTING CPNI
South Point Communications uses numerous methods to protect your CPNI. This includes software enhancements that identify whether a customer has approved use of its CPNI. Further, all South Point Communications employees are trained on the how CPNI is to be protected and when it may or may not be disclosed. All marketing campaigns are reviewed by a South Point Communications supervisory committee to ensure that all such campaigns comply with applicable CPNI rules.
South Point Communications maintains records of its own and its joint venture partners and/or independent contractors (if applicable) sales and marketing campaigns that utilize customer CPNI. Included in this, is a description of the specific CPNI that was used in such sales or marketing campaigns. South Point Communications also keeps records of all instances in which CPNI is disclosed to third parties or where third parties were allowed access to customer CPNI.
South Point Communications will not release CPNI during customer-initiated telephone contact without first authenticating the customer’s identity in the manner set-forth herein. Violation of this CPNI policy by any South Point Communications employee will result in disciplinary action against that employee as set-forth in South Point Communications’ employee Manual.
7. BREACH OF CPNI PRIVACY
In the event South Point Communications experiences a privacy breach and CPNI is disclosed to unauthorized persons, federal rules require South Point Communications to report such breaches to law enforcement. Specifically, South Point Communications will notify law enforcement no later than seven (7) business days after a reasonable determination that such breach has occurred by sending electronic notification through a central reporting facility to the United States Secret Service and the FBI. A link to the reporting facility can be found at: www.fcc.gov/eb/cpni/. South Point Communications cannot inform its customers of the CPNI breach until at least seven (7) days after notification has been sent to law enforcement, unless the law enforcement agent tells the carrier to postpone disclosure pending investigation. Additionally, South Point Communications is required to maintain records of any discovered breaches, the date that South Point Communications discovered the breach, the date carriers notified law enforcement and copies of the notifications to law enforcement, a detailed description of the CPNI breach, including the circumstances of the breach, and law enforcement’s response (if any) to the reported breach. South Point Communications will retain these records for a period of not less than two (2) years.
23. e911. PLEASE READ THE INFORMATION BELOW ABOUT 911 DIALING CAREFULLY. BY USING AND PAYING FOR THE SERVICES, YOU ACKNOWLEDGE AND AGREE TO ALL OF THE INFORMATION BELOW REGARDING THE SOUTH POINT COMMUNICATIONS VOICE 911 EMERGENCY DIALING SERVICE, AND THE DISTINCTIONS BETWEEN SUCH SERVICE AND TRADITIONAL 911 OR ENHANCED 911 (“e911") CALLS.
1. YOU ACKNOWLEDGE AND UNDERSTAND THAT SOUTH POINT COMMUNICATIONS OFFERS A 911 EMERGENCY SERVICE AS DESCRIBED HEREIN AND THAT SUCH 911 DIALING IS DIFFERENT IN A NUMBER OF IMPORTANT WAYS (SOME, BUT NOT NECESSARILY ALL, OF WHICH ARE DESCRIBED HEREIN) FROM TRADITIONAL 911 SERVICE, AND THAT WE HAVE TOLD YOU THAT THE SOUTH POINT COMMUNICATIONS SERVICE DOES NOT SUPPORT TRADITIONAL 911 OR E911. SOUTH POINT COMMUNICATIONS 911 DIALING CANNOT BE USED IN CONJUNCTION WITH A SOFT PHONE APPLICATION AND IS ONLY AVAILABLE ON SOUTH POINT COMMUNICATIONS PROVIDED DEVICES OR EQUIPMENT. YOU AGREE TO INFORM ANY HOUSEHOLD RESIDENTS, GUESTS AND OTHER THIRD PERSONS WHO MAY BE PRESENT AT THE PHYSICAL LOCATION WHERE YOU UTILIZE THE SERVICE OF THE NON-AVAILABILITY OF TRADITIONAL 911 OR E911 DIALING FROM YOUR SOUTH POINT COMMUNICATIONS SERVICE AND DEVICE(S) AND TO INFORM THEM OF THE IMPORTANT DIFFERENCES AND LIMITATIONS OF SOUTH POINT COMMUNICATIONS 911 DIALING SERVICE AS COMPARED WITH TRADITIONAL 911 OR E911 DIALING THAT ARE SET FORTH IN THIS AGREEMENT.
2. 911-TYPE DIALING CAPABILITIES WITH SOUTH POINT COMMUNICATIONS VOICE SERVICE WHEN YOU DIAL 911 ON YOUR PHONE UTILIZING SOUTH POINT COMMUNICATIONS VOICE SERVICE, YOUR CALL MAY BE ROUTED TO A DIFFERENT DISPATCHER THAN THAT USED FOR TRADITIONAL 911 DIALING. THE DISPATCHER MAY BE LOCATED AT A PUBLIC SAFETY ANSWERING POINT (PSAP) DESIGNATED FOR THE ADDRESS YOU LISTED AT THE TIME YOU REGISTERED FOR THE SERVICE OR OTHER BACK-UP EMERGENCY ANSWERING SERVICES. SOUTH POINT COMMUNICATIONS RELIES ON THIRD PARTIES FOR THE FORWARDING OF INFORMATION UNDERLYING SUCH ROUTING, AND ACCORDINGLY SOUTH POINT COMMUNICATIONS AND ITS THIRD PARTY PROVIDER(S) DISCLAIM ANY AND ALL LIABILITY OR RESPONSIBILITY IN THE EVENT SUCH INFORMATION OR ROUTING IS INCORRECT. IN ADDITION, SOUTH POINT COMMUNICATIONS VOICE 911 SERVICE HAS FEWER CAPABILITIES THAN TRADITIONAL 911 OR E911 SERVICE AS FOLLOWS:
a. SOUTH POINT COMMUNICATIONS 911 EMERGENCY DIALING IS ONLY AVAILABLE AT THE PHYSICAL STREET ADDRESS REGISTERED WITH SOUTH POINT COMMUNICATIONS FOR THE PARTICULAR AREA CODE AND PHONE NUMBER. You acknowledge and agree that 911-type Services shall only be available at the Physical street address associated with the particular Area Code and Phone Number assigned to you. You further acknowledge and agree that 911-type Services will not be available to a particular customer and neither SOUTH POINT COMMUNICATIONS nor its underlying service providers shall have any liability to you or any third party for failure to provide 911 Services to you in the event of the assignment of a Area Code and Phone Number to you located outside of the Exchange Area associated with your physical street address or relocation of the telephone device to which an Area Code and Phone Number has been assigned to a location other than your physical street address as registered with SOUTH POINT COMMUNICATIONS.
b. IF YOU DO NOT CORRECTLY IDENTIFY THE ACTUAL CURRENT AND CORRECT PHYSICAL STREET ADDRESS LOCATION WHERE YOUR SOUTH POINT COMMUNICATIONS EQUIPMENT WILL BE LOCATED AT THE TIME YOU REGISTER FOR THE SERVICE, 911 COMMUNICATIONS MAY BE MISDIRECTED TO AN INCORRECT LOCAL EMERGENCY SERVICE PROVIDER. When activating Service you must provide the actual physical street address where the Device will be located, not a post office box, mail drop or similar address. You acknowledge and understand that 911 dialing does not function properly or at all if you move or otherwise change the physical location of your SOUTH POINT COMMUNICATIONS Device to a different street address. Any change of the devices physical address must be coordinated with SOUTH POINT COMMUNICATIONS for the service and 911 to work properly.
c. THE PSAP RECEIVING SOUTH POINT COMMUNICATIONS VOICE 911 EMERGENCY SERVICE CALLS MAY NOT BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. SOUTH POINT COMMUNICATIONS’s system is configured in most instances to send the automated number identification information and to transmit identification of the address that you have registered with SOUTH POINT COMMUNICATIONS to the Public Safety Answering Point (PSAP) and local emergency personnel for your area when you dial 911; however, one or more telephone companies, not SOUTH POINT COMMUNICATIONS, route the traffic to the PSAP and the PSAP itself must be able to receive the information and pass it along properly, and PSAPs are not yet always technically capable of doing so. You acknowledge and understand that PSAP and emergency personnel may or may not be able to identify your phone number and location in order to call you back if the call is unable to be completed, is dropped or disconnected, or if you are unable to speak to tell them your phone number and location and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.
d. YOU ACKNOWLEDGE AND ACCEPT THAT SOUTH POINT COMMUNICATIONS VOICE 911 SERVICE WILL NOT FUNCTION IF YOUR TA FAILS OR IS NOT CONFIGURED CORRECTLY OR IF YOUR SOUTH POINT COMMUNICATIONS VOICE SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, IN THE EVENT OF A POWER OUTAGE, BROADBAND SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION INCLUDING SUSPENSION OR TERMINATION OF SERVICE BY YOUR BROADBAND PROVIDER AND/OR ISP OR BY SOUTH POINT COMMUNICATIONS FOR ANY REASON INCLUDING BILLING ISSUES OR FOR OTHER REASONS DESCRIBED ELSEWHERE IN THIS AGREEMENT. IF THERE IS A POWER OUTAGE THE SERVICE AND 911 DIALING WILL NOT FUNCTION UNTIL POWER IS RESTORED AND YOU MAY BE REQUIRED TO RESET OR RECONFIGURE THE SOUTH POINT COMMUNICATIONS EQUIPMENT PRIOR TO BEING ABLE TO USE YOUR SOUTH POINT COMMUNICATIONS VOICE SERVICE, INCLUDING FOR 911 PURPOSES.
e. YOU ACKNOWLEDGE AND UNDERSTAND THAT FOR TECHNICAL REASONS ASSOCIATED WITH THE POSSIBILITY OF NETWORK CONGESTION, WITH SOUTH POINT COMMUNICATIONS VOICE SERVICE THERE IS A GREATER POSSIBILITY THAT YOUR 911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER, AS COMPARED TO TRADITIONAL 911 CALLS OVER TRADITIONAL PUBLIC TELEPHONE NETWORKS. You acknowledge and accept that SOUTH POINT COMMUNICATIONS relies on third parties for the forwarding of information underlying such routing, and accordingly SOUTH POINT COMMUNICATIONS and its third party provider(s) disclaim any and all liability or responsibility in the event such information or routing is incorrect.
3. LIMITATION OF LIABILITY AND INDEMNIFICATION AS DESCRIBED HEREIN, THIS 911-TYPE DIALING CURRENTLY IS NOT THE SAME AS TRADITIONAL 911 OR E911 DIALING, AND AT THIS TIME, DOES NOT NECESSARILY INCLUDE ALL OF THE CAPABILITIES OF TRADITIONAL 911 DIALING. YOU ACKNOWLEDGE AND UNDERSTAND SUCH LIMITATIONS AND AGREE TO RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS SOUTH POINT COMMUNICATIONS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER OF ITS UNDERLYING PROVIDERS, SERVICE PROVIDERS OR OTHER THIRD PARTY PROVIDERS WHO FURNISH SERVICES TO YOU OR SOUTH POINT COMMUNICATIONS IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, FROM ANY AND ALL LIABILITIES, CLAIMS, ACTIONS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PERSON OR PARTY OR USER OF THE SERVICE RELATING TO OR ARISING OUT OF THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICE, INCLUDING 911 DIALING AND/OR INABILITY OF YOU OR ANY THIRD PERSON OR PARTY OR USER OF THE SERVICE TO BE ABLE TO DIAL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL AND/OR MISROUTES OF 911 CALLS, INCLUDING BUT NOT LIMITED TO MISROUTES RESULTING FROM YOUR PROVISION TO SOUTH POINT COMMUNICATIONS OF INCORRECT ADDRESS INFORMATION IN CONNECTION THEREWITH. FURTHER, YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION RESULTING FROM THE FOREGOING EVENTS OR CONDITIONS UNLESS IT IS PROVEN THAT THE ACT OR OMISSION PROXIMATELY CAUSING THE CLAIM, DAMAGE, OR LOSS CONSTITUTES GROSS NEGLIGENCE, GROSS RECKLESSNESS, OR INTENTIONAL GROSS MISCONDUCT ON THE PART OF SOUTH POINT COMMUNICATIONS.
4. ALTERNATIVE 911 ARRANGEMENTS YOU ACKNOWLEDGE THAT SOUTH POINT COMMUNICATIONS DOES NOT OFFER PRIMARY LINE OR LIFELINE SERVICES, AND THAT SOUTH POINT COMMUNICATIONS STRONGLY RECOMMENDS THAT YOU ALWAYS HAVE AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
24. NETWORK ABUSE POLICY. This Network Abuse Policy (“Policy") applies to all South Point Communications (“South Point") services (“Services").
You agree to use the Service and Device only for lawful purposes. This means that you agree not to use them for transmitting or receiving any communication or material of any kind when in South Point’s sole judgment 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. South Point reserves the right to terminate your service immediately and without advance notice if South Point, in its sole discretion, believes that you have violated the above restrictions, leaving you responsible for the full month’s charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable and may at South Point’s discretion be immediately charged to your credit card. You are liable for any and all use of the Service and/or Device by yourself and by any person making use of the Service or Device provided to you and agree to indemnify and hold harmless South Point against any and all liability for any such use. If South Point, in its sole discretion believes that you have violated the above restrictions, South Point may forward the objectionable material, as well as your communications with South Point and your personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding.
1. Lawful, Non Fraudulent Use of Service and TA
You agree to use the Service and TA only for lawful purposes. You will not use the Service or TA for any unlawful, abusive, or fraudulent purpose, including, for example, using the Service in a way that (1) interferes with our ability to provide Service to you or other customers; or (2) avoids your obligation to pay for communication services. If South Point has reason to believe that you or someone else is abusing the Service or using it fraudulently or unlawfully, we can immediately suspend, restrict, or cancel the Service without advance notice.
While we encourage use of the Service within the United States to other countries, South Point does not presently offer or support the Service to customers located in other countries. The TA is intended for use only in the United States. If you remove the Device to a country other than the United States and use the Service from there, you do so at your own sole risk, including the risk that such activity violates local laws in the country where you do so. You are liable for any and all such use of the Service and/or Device by yourself or any person making use of the Service or Device provided to you and agree to indemnify and hold harmless South Point against any and all liability for any such use. Should removal of the Device from the United States violate any export control law or regulation, you will be solely liable for such violation and agree to indemnify and hold harmless South Point against any and all liability for such violation. If South Point determines that you are using the Service from outside of the United States South Point reserves the right to terminate your service immediately and without advance notice, leaving you responsible for all outstanding charges, all of which immediately become due and payable.
2. Use of Service and Device – Prohibition on Resale
If you have subscribed to South Point Voice, the Service and Device are provided to you for your use. This means that you are not using them for any unauthorized activities including but not limited to telemarketing (including without limitation charitable or political solicitation or polling), autodialing, continuous or extensive call forwarding, fax broadcast, fax blasting or any other activity that would be inconsistent with normal usage patterns. This also means that you are not to resell or transfer the Service or the Device to any other person for any purpose, or make any charge for the use of the Service, without express written permission from South Point in advance. You agree that your use of the Service and/or Device, or the use of the Service and/or Device provided to you by any other person for any unauthorized purpose will obligate you to pay South Point’s higher rates for such services for all periods, including past periods, in which you use, or used, the Service for unauthorized purposes. South Point reserves the right to immediately terminate or modify the Service, if South Point determines, in its sole discretion, that the Service is being used for unauthorized use.
3. Theft of Service
You agree to notify South Point immediately, in writing or by calling the South Point customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen or fraudulently used. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft or fraudulent use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. Until such time as South Point receives notice of the theft or fraudulent use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen Service or fraudulent use of the Service.
4. Ownership and Risk of Loss
You shall be deemed the owner of the Device, and bear all risk of loss of, theft of, casualty to or damage to the Device, from the time it is shipped to you until the time (if any) when it is returned by you pursuant to this Agreement and has been received by South Point.
5. Prohibited Uses of Service
You are expressly prohibited from reselling or transferring the Service or South Point Equipment to any other person for any purpose, without express written permission from South Point in advance. In addition, you are expressly prohibited from using the Service for auto-dialing, continuous or extensive call forwarding, telemarketing, fax broadcasting or fax blasting, or for uses that result in excessive usage inconsistent with normal office usage patterns. If South Point determines, in its sole discretion, that you are reselling or transferring the Service or that your Service is being used for any of the aforementioned activities, South Point reserves the right to immediately terminate without advance notice or modify the Service and to assess additional charges for each month in which excessive usage occurred.
6. Fair Use Policy
1. Reasonable Use Limitations
Unusually high usage of the Service attributable to individual Customer may impair South Point’s ability to provide the Service and/or indicate misuse of the Service. Accordingly, for all Service Plans, reasonable use means that your use of the Service does not materially impair South Point’s ability to provide the Service to other customers.
2. Unlimited or Unmetered Plans
All unlimited or unmetered plans (“Unlimited Plans") are subject to all of the Prohibited Use and Reasonable Use limitations set forth in this Reasonable Use Policy. In addition, all unlimited or unmetered plans are subject to the following terms and conditions:
1. Unlimited Plans are for normal business use.
2. Unlimited Plans cannot, under any circumstances, be used for call-in lines, call centers, conference calling, trunking (to a PBX or otherwise), continuous or extensive call forwarding, autodialing, fax blasting, telemarketing (including without limitation charitable or political solicitation and/or polling), junk faxing, fax spamming, or other high volume or multi-person calling or faxing purposes.
3. Excessive Use of Unlimited Plans is prohibited. “Excessive Use" means that your use exceeds the monthly minutes per line used by 98% of all South Point Unlimited Plan customers. Excessive Use is measured on a monthly basis. For example, if you use 7,500 minutes in one month per line and 98% of all South Point Unlimited Plan customers used less than 7,500 minutes that month per line, your use would constitute Excessive use and would be in violation of this Reasonable Use Policy.
South Point reserves the right to review and monitor your usage of your Unlimited Plan at any time (i) to calculate Excessive Use and (ii) compliance with this Reasonable Use Policy, including that there is no Excessive Use.
Except where prohibited by law, if you violate this Reasonable Use Policy, including but not limited to by Excessive Use of the Service, you hereby acknowledge and agree that South Point may modify, suspend, terminate, disconnect or take any other reasonable action regarding your Service to prevent continued violation of this Reasonable Use Policy (a “Plan Modification"), including charging you on per minute basis, at South Point’s published per minute rates, for any Excess Use or automatically converting your Unlimited Plan to a metered plan. You hereby agree to pay South Point, and hereby authorize South Point to charge your credit card for any additional fees, charges and penalties related to any Plan Modification.
7. South Point’s obligation to provide Services is conditioned upon you not allowing the Services to be used for any unlawful purpose or in violation of any governmental regulations or authorizations. South Point shall have the right to limit, terminate or suspend Services immediately without notice and with no liability or obligation to you for the improper use of the Services by you or any activity by you, as determined in the sole discretion of South Point, that threatens public health, safety, or welfare, the integrity or reliability of the Services, South Point’s facilities or the ability of South Point to provide service other customers.
8. Nothing contained herein shall be construed to limit South Point, in its actions or remedies in any way with respect to any of the foregoing activities. South Point reserves the right to take any and all additional actions South Point deems appropriate with respect to such activities, including without limitation, taking action to recover costs and expenses of identifying offenders and removing such. In addition, South Point reserves at all times all rights and remedies available to it with respect to such activities at law or in equity.
9. An existing South Point customer (“Existing Customer") may not, via phone or online account access, establish a new user associated with his or her account where the person on whose behalf the new user was established (“New Person") would have a reasonable expectation of privacy with regard to the CPNI associated with the services the New Person receives from South Point. Such a reasonable expectation is present if such New Person would consider himself or herself to be a South Point customer, separate and apart from the Existing Customer.