LegalImportant Information for Dallas
Cbeyond Terms and Conditions - Dallas1. Introduction. Cbeyond Communications LLC® (“Cbeyond”) is delighted to provide you the BeyondVoice® and other Cbeyond® services and enhancements ordered on the first several pages of this Service Order Contract (the “Order Terms”). The word “Contract” includes and incorporates the Order Terms, all of these Terms and Conditions and any Cbeyond Service Addendums that you may sign at any time. As used in this Contract, the words “we”, “our” and “us” refer to Cbeyond and the words “you,” and “your” refer to the entity that has signed this Contract with us. The word “Services” includes and incorporates the BeyondVoice, BeyondOffice® and BeyondMobile® communications packages, enhancements and other business services ordered on the Order Terms and any additional services you may order or obtain from Cbeyond at any time that are not expressly governed by another agreement you sign with us. The following Terms and Conditions govern all aspects of your purchase, use and termination of all Cbeyond Services. 2. Services and Installation; Installation Commitment for BeyondVoice Services. We will provide you with the Services identified on the Service Order Contract for the “Service Period”, “Monthly Fee” and “Service Address” described in the Order Terms. For BeyondMobile Service, the Service Address will be recorded as your Primary Place of Use. You are responsible for the Smart Start Installation Fee (“Install Fee”) and, if you do not opt-out of it, the Smart Start Application Set Up Tutorial Fee (“Tutorial Fee”) described in the Order Terms. 3. Equipment. 3.1 To provide our BeyondVoice or BeyondOffice Services, we must install equipment at your Service Address; this equipment remains our sole property at all times and shall not be considered customer-premises equipment. You agree to comply with all instructions and requirements regarding the use and/or care of our equipment and to take reasonable measures to protect our equipment at all times. You will provide a secure, air-conditioned space to house the equipment and sufficient electricity (with certified earth ground) to operate the equipment. You agree to pay us the replacement value of any lost, stolen, damaged or unreturned equipment. We will replace any of our equipment that does not perform as specified, at no charge to you, unless we determine, in our sole discretion, that you are directly or indirectly responsible for the equipment failure. Our services do not include the installation or maintenance of any inside wiring at your Service Address aside from that which is necessary to power and serve our equipment; the installation and maintenance of inside wiring for your telecommunications and computer network is your sole responsibility.
3.2 If you subscribe to our BeyondMobile Service, you must purchase mobile phones and/or laptop cards (“Mobile Devices”) from us. Your purchase also may include related software and other products (“Mobile Related Products”) that work in conjunction with your Mobile Devices. Mobile Devices and Mobile Related Products may be covered under a limited warranty of their manufacturer that Cbeyond will extend to you without charge to the extent we can do so under our agreements with those manufacturers. If and when available, you may also elect to purchase an extended warranty for the Mobile Devices and Mobile Related Products at the then current cost for the selected warranty. In our sole discretion, we may change or modify your Mobile Devices and Mobile Related Products remotely and without notice to you, including changes or modifications to any software or programming. Among other things, this may affect or delete any data or information stored on your Mobile Devices or Mobile Related Products, including the configuration of your Mobile Devices or Mobile Related Products. Cbeyond is not responsible for any monetary loss, or adverse effects of such changes or modifications. Under certain, limited circumstances, you may choose to use Cbeyond’s Hosted Microsoft® Exchange (“HME”) service with mobile phone(s) you do not purchase from Cbeyond. In such an event, provided that you notify Cbeyond in advance of your desire to use a non-Cbeyond phone with your HME service, Cbeyond will provide you with commercially reasonable assistance in configuring your HME service to work with your non-Cbeyond mobile phone, but Cbeyond will not be responsible in any way for any warranties associated with your non-Cbeyond mobile phone, any problems or issues you have with your mobile phone service or mobile phone service provider, or any data loss, email loss or other damage you may sustain which results from your use of HME with a non-Cbeyond mobile phone.
3.3 The installation, operation, maintenance, repair or removal of any software, program, or other hardware related to the Cbeyond Services, including the Mobile Related Products (together with the Mobile Related Products, the “Services Related Products”) on your computer(s), network(s) or other hardware may result in service outage, loss or damage to that equipment or any data, information or files on your equipment. You agree to be solely responsible for all data and software back-up and to otherwise protect your computer and network data, information and files. You assume all responsibility for impacts, loss or damage to your computer or network hardware, data, information, files, peripherals, Mobile Devices or Services Related Products associated with installing, operating or removing any Services Related Products. Any warranty covering your computer, network or other equipment may become void when you open that computer or equipment to install any Services Related Products, whether or not you elect to install and run any of those Services Related Products. We do not commit or warrant that your installation or use of any Services Related Products will permit you to access, operate, or use any Service (including any BeyondMobile Service).
3.4 If any Mobile Device is stolen or misplaced, you must report the incident to us immediately. Failure to report the theft of your Mobile Device may result in your being liable for all charges and calls placed using your Mobile Device from the time the Mobile Device was stolen or misplaced until we are able to suspend your BeyondMobile Service. Upon proper notice, we will suspend your BeyondMobile Service (up to maximum of 30 days) to permit you to replace the stolen or misplaced Mobile Device. During any such suspension, you remain liable for any recurring costs associated with your BeyondMobile Service.
3.5 Promptly upon receipt of notice, you must either (a) immediately make all Cbeyond equipment and property available to us or (b) pay us the replacement value of all equipment and other property that you do not make immediately available to us. You agree that you shall be responsible for all costs that we incur in retrieving or attempting to retrieve our equipment and property should you not make it immediately available. Upon our termination of this Contract for any reason, you will forfeit any right to obtain a refund or credit of any amount paid previously or owing to us under this Contract, except for any credit owing to you under the Network Availability Commitment. Sections 1, 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 19 and 20 will survive the termination of this Contract. 4. Network Availability Commitment for BeyondVoice and BeyondOffice Services.
4.1 We will use commercially reasonable efforts to make our Cbeyond IP “Network” (defined below) available to you at all times, subject to certain limitations described in this Contract (the “Network Availability Commitment”). For purposes of this Network Availability Commitment, the Cbeyond IP Network (“Network”) means the integrated access device, local access loop, aggregation router, connectivity to the core network, and core network components up to the handoff to either the Internet peering point (for Internet packets) or the handoff to local, long distance or other voice Services provider for phone service traffic.
4.2 A Network outage occurs when there is total “Loss of Service” (defined below) for more than 60 consecutive minutes per occurrence. “Loss of Service” means that Cbeyond is unable to transmit IP packets on your behalf, such that you are unable to communicate with or access any other Internet Service Providers via the IP transmission protocol or unable to communicate with or access any other telecommunications providers via the Public Switched Telephone Network, as a result of the failure of Cbeyond facilities or equipment used to provide the BeyondVoice or BeyondOffice Services. A Loss of Service does not include any loss of or inability to use your BeyondMobile Services.
4.3 The Network Availability Commitment in this Section 4 does not cover or apply to any of the following: (a) BeyondMobile voice or data Services or equipment; (b) Services activation or any Loss of Service caused by our maintenance of the system or Network; or (c) problems or issues relating to your equipment at the Service Address, including, but not limited to your Local Area Network, your phone equipment (including cables, PBX and associated cards), routine maintenance events, outages or disruptions caused by you either directly or indirectly, interconnections to or from and connectivity within other Local Exchange Carriers’ networks (for example, calls to certain numbers or area codes), subsequent voice carriers’ networks, interconnections to or from and connectivity within other Internet Service Provider networks, degraded or slow Services, and Force Majeure events.
4.4 You are eligible for a full day’s credit equal to 1/30th of the BeyondVoice or BeyondOffice recurring Monthly Fees (excluding any fees for additional Services) (the “Daily Credit”) for each full 60 minutes that you experience a covered Network outage for that Service after you have reported it to Technical Support (tech.support@cbeyond.net or 1-866-424-5100) as further described in Section 5; however, you may receive: (a) a maximum of 5 Daily Credits for covered Network outages in any 24-hour period starting from when you reported it to us; and (b) no more than 30 Daily Credits for covered Network outages in any calendar month. You are eligible to receive daily credit only as to the BeyondVoice or BeyondOffice Service for which you experienced a covered Network outage. 5. Credit Limits and Reporting Procedures.5.1 To be eligible for the Network Availability Commitment, you must notify Technical Support (tech.support@cbeyond.net or 1-866-424-5100) immediately when you experience a Network outage or Loss of Service.
5.2 A Network outage begins when you notify Technical Support and ends when Cbeyond’s Technical Support confirms that Services have been re-established. To receive your credit, you must request it at Cbeyond Online (www.cbeyondonline.net) or via email to customercare@cbeyond.net within 7 days of the end of the calendar month in which the Network outage occurred. Credits do not include any applicable taxes or other governmental charges described in Section 6.
5.3 Your exclusive remedy or recovery for any Loss of Service or covered Network outages under the Network Availability Commitment or this Contract, or other damages arising out of or related to the unavailability of the Services, shall not exceed the amount of the credit described in Sections 4.4 and this Section 5, or, if applicable, your right to terminate the BeyondVoice or BeyondOffice Service for which you experienced a covered Network outage as described in Section 8.3 below. All Network Availability Commitment credit requests are subject to Cbeyond’s review and verification. You must be current on all payments (i.e. no balance older than 30 days) in order to receive credit under the Network Availability Commitment. Credits will appear within two (2) billing cycles after credit approval. No credits under the Network Availability Commitment are available for your BeyondMobile Services. 6.Charges; Payments and Late Payment Fees and Costs.
6.1 Your Monthly Fee and other charges begin on the earlier of: (a) when the Services are available to you; or (b) 30 days after our circuit has been delivered to your Service Address (whether or not your Services have been activated). Monthly Fees and activation fees for BeyondMobile Services are due for each Mobile Device on the earlier of (x) when that Mobile Device has been programmed to send or receive mobile calls or data under your account or (y) 7 calendar days after we ship you that Mobile Device. Each Install Fee and Tutorial Fee for BeyondVoice® or BeyondOffice® Services is due upon completion of your installation or, as the case may be, your tutorial. Cbeyond® is not obligated to invoice or provide Services to anyone other than you, and you agree to reimburse, compensate and pay Cbeyond for any losses, claims, damages, liabilities, or penalties that Cbeyond or any of our officers, directors, agents, successors or assigns may incur from anyone other than you that uses or shares your Service Address or the Cbeyond Services and our equipment, notwithstanding anything to the contrary in these Terms and Conditions.
6.2 Cbeyond does not and will not provide paper invoices; each month we will send you an electronic invoice that will include all recurring, fixed Monthly Fees and charges billed one month in advance. YOU AGREE TO PAY THE TOTAL AMOUNT OF EACH INVOICE BY THE INVOICE DUE DATE SHOWN ON THAT INVOICE. To dispute the amount or accuracy of any invoice and be eligible for credits based on that dispute, you must provide Cbeyond with detailed, written notice of the dispute by the due date of that invoice. You must pay any charge or amount that you do not properly dispute by the due date of the first invoice for those charges, without exception. If, after investigation, Cbeyond determines that a refund is due, we will credit the amount of the incorrect items on a subsequent invoice. Upon receipt of notice from Cbeyond that the disputed charges are correct, all past due amounts must be paid, in addition to any late payment charges described in Section 6.4.
6.3 For any BeyondMobile® Service, your connectivity charges may vary depending on the calling plan selected, time, location, network area, number dialed and services used. Most mobile calls and text messages will result in airtime or usage charges. Additional charges will also apply upon your use or activation of additional features, multiple simultaneous calls for certain services (including call-waiting, call-forwarding, or 3-way calling) and for excessive, illegal or improper mobile data usage (as more fully described in our Acceptable Use Policy identified in Section 18 below). Any mobile calling plans that you select are part of this Contract. If you use your Mobile Device outside the rate area as set forth in your calling plan or use another company’s mobile network for any reason, you will be responsible for any extra charges, including long distance, toll, and roaming charges caused by such use. Airtime and other measured usage charges are billed in full-minute or such other increments as we determine to use from time to time, and we may round up any such usage charges to the next minute in billing those increments.
6.4 All payments must be in U.S. dollars. If you do not pay all charges when due under this Contract, a late payment fee will be assessed on the unpaid amounts at the lower of: 1.5% (one and one half percent) per month on the unpaid amounts or the maximum rate allowed by law. You are also responsible for all other costs and legal fees incurred in collecting all unpaid amounts, unless otherwise ordered by an arbitrator or court in any action to collect those unpaid amounts. Cbeyond reserves the right to assess a $25 fee for any check returned for insufficient funds or not paid when presented for payment.
6.5 You agree that we may obtain credit reports and other information about you from credit reporting agencies and other sources at any time during this Contract. If requested, you agree to provide a deposit as a guarantee of payments under this Contract or to increase the amount of any prior deposit should we find your credit standing, financial circumstances or payment history unsatisfactory at any time or if your account incurs excessive usage charges. The amount of the deposit will be in our sole discretion but in no instance will exceed an amount that is twice your average monthly bill or projected average monthly bill. Cbeyond reserves the right to apply any deposited amount to past due charges or Early Termination Fees under this Contract, with or without notice to you. You also agree to promptly redeposit any amount so applied at our request. We may terminate your Services as described in Section 8.5 below if you fail to adhere to the deposit policies described in this paragraph.
6.6 In addition to the charges for your Cbeyond Services, you are responsible for all federal, state and local sales, use and excise taxes and any new or increased fees, assessments, taxes or other charges for the Services; we may also be required by federal, state or local laws or regulations to collect taxes or fees on services that you receive free or at discounted rates from Cbeyond, and you agree to pay these taxes or fees when billed. You are responsible for collect call, mobile usage and any other charges that may be billed to you after your Service end date. You are also responsible for any charges from third parties that arise when you use your phone number as a billing mechanism for third-party services (such as 900 or other information charges). Should you request any third-party services, you agree that we may release your name and billing information directly to that third party so that it can bill you directly for those services. 7. Your Responsibilities. In addition to your other responsibilities under this Contract, you agree that you and anyone using the Services will: (i) upon request, take all actions necessary in order to install and activate the Services; (ii) provide adequate facilities to house and operate our BeyondVoice or BeyondOffice equipment; (iii) NOT RESELL THE SERVICES TO ANY THIRD PARTY; (iv) comply with Cbeyond’s Acceptable Use Policy described in Section 18 below; (v) comply with the duties outlined in the Cbeyond Installation Kit Overview; (vi) comply with all federal, state, and local laws, rules, regulations and tariffs that apply to the Services or this Contract; (vii) be solely responsible for establishing and maintaining security measures (including, without limitation, codes, passwords or other features) necessary to restrict access to your computers, servers or other equipment used in conjunction with the Services; (viii) be solely responsible for all fraudulent, unauthorized, illegal or improper use of the Services by persons accessing those Services through your facilities, equipment or Service Address; and (ix) authorize and identify to us in writing at least one individual to represent you on any aspect of the Services and your account (including all requests for moves, additions, deletions or changes to the Services). You warrant and represent that a significant amount of your local exchange traffic at the Service Address will occur through our Services for the entire term of this Contract. You agree that you will notify us immediately of any Loss of Service or other problems with any of the Services by contacting Cbeyond Technical Support (tech.support@cbeyond.net or 1-866-424-5100). 8. Term and Termination.
8.1 This Contract is effective upon your signature and will continue in effect for the Service Period (“Initial Term”) specified on the Service Order Contract. At the end of the Initial Term, this Contract will renew automatically for additional periods (“Renewal Terms”) of one year each until either party gives written notice to terminate this Contract not more than 90 days and not less than 30 days before the end of the Initial Term or any Renewal Term; such written notice shall be effective for 90 days, and—if you have not ported your Services in their entirety to another carrier or otherwise disconnected your Services in their entirety within that 90 day period—the written notice of termination shall no longer have any force or effect and this Contract shall continue as if no such termination notice had ever been provided. At the end of the initial Service Period, the BeyondOffice and BeyondVoice Services will renew automatically for additional periods (“Renewal Terms”) of one year each and the BeyondMobile Services will renew on a month-to-month basis. In the case of any renewal, you will be responsible to pay the charges and terms in effect on the day before renewal, plus then applicable fees, taxes and other charges as described in Section 6.6. Your BeyondVoice services must be active to maintain any BeyondOffice services that you may be purchasing; it is your responsibility to coordinate the disconnection of these services as we will not continue your BeyondOffice services after your BeyondVoice account has been terminated.
8.2 The initial Service Period for the BeyondOffice and BeyondMobile Services must be at least 24 months. You may purchase the BeyondOffice Services and the BeyondMobile Services so long as (a) there are at least 24 months remaining on the Initial Term of this Contract; or (b) you agree to extend the Initial or Renewal Term of this Contract to at least 24 months. Any change in the calling plan or features for the BeyondMobile Services at any time may also require you to extend the term of the BeyondMobile Services and this Contract. If and when this Contract or any BeyondVoice package offering ends or terminates, all BeyondOffice and BeyondMobile Services will also immediately terminate. If this Contract or your BeyondVoice, BeyondOffice or BeyondMobile Services terminate before the completion of the Initial Term or any Renewal Term of this Contract, “Early Termination Charges” will apply (as defined in Section 9).
8.3 You may terminate BeyondVoice or BeyondOffice Services (without liability for Early Termination Charges) if you experience a Loss of Service (as defined in Section 4.2 above) for that particular Service of more than 8 consecutive hours on two occasions or more in any calendar month and you notify us of each Loss of Service (of any duration) or any other problem with that Service immediately after that Loss of Service or problem first occurs. You may also terminate this Contract if we fail to comply with any other Cbeyond obligation under this Contract for 30 consecutive days after receiving written notice from you. In either case, you may terminate the affected BeyondVoice or BeyondOffice Service only if (a) your account is current before termination (i.e. no balance older than 30 days); (b) you and/or your equipment (including Mobile Devices and Services Related Products) did not contribute to the Loss of Service or to our failure to comply with this Contract, either directly or indirectly; (c) the last Loss of Service you rely on for invoking this termination right occurred within the preceding 60 days or your written notice of Cbeyond’s failure to comply with a Contract obligation was delivered within the preceding 60 days and Cbeyond failed to comply with the obligation after such notice; and (d) you provide us with 30 days written notice of your intent to terminate your Services under this section. Such written notice shall be effective for 90 days, and—if you have not ported your Services in their entirety to another carrier or otherwise disconnected your Services in their entirety within that 90 day period—the written notice of termination shall no longer have any force or effect and this Contract shall continue as if no such termination notice had ever been provided. You may not cancel this Contract for any Loss of Service affecting your BeyondVoice and/or BeyondOffice services except as permitted in this Section 8.3. You must pay all charges due for each Service received until that Service is disconnected and for all charges incurred before the Service end date that may be billed to you after the Service end date.
8.4 You may terminate your BeyondMobile Services at any time (with liability for Early Termination Charges) by properly notifying us as required under our Cbeyond BeyondMobile Commitment (“Commitment”) posted on the Internet at www.cbeyond.net. Cbeyond reserves the right to change the Commitment at any time without notice to you, and any changes to that Commitment will be effective upon posting on Cbeyond’s Website. Prior to termination of the BeyondMobile Services, you may be able to transport (“port”) your then current mobile number to a new mobile service provider. If you request your new mobile service provider to port a number from us and that new mobile provider requests us to do so, we will treat that request from your new provider as notice from you to immediately terminate the BeyondMobile Service for that mobile number upon successful port of that number. After any mobile number has been ported to your new provider successfully, you will not be able to use the BeyondMobile Services for that mobile number. You remain liable to pay all BeyondMobile Service charges through the service end date or, if later, when your mobile number has been successfully ported to your new carrier. Early Termination Charges apply upon any termination of the BeyondMobile Services or mobile number port to another carrier before the scheduled end date of the initial Service Period (of 24 months) or of any Renewal Term.
8.5 Cbeyond may terminate this Contract or suspend all or any Services if: (a) you fail take any action that we have requested in order for Cbeyond to install or activate the Services; (b) you fail to pay any amount owing to us when due, and fail to pay all past due amounts within 10 days after notice from us; (c) you fail or anyone using any of the Services fails to comply with or violates our Acceptable Use Policy described in Section 18 below; (d) you fail to provide a new or increased deposit when requested; (e) you fail to replenish any deposit as requested; (f) you fail to perform or comply with any other obligation under this Contract and do not perform or comply with that obligation within 30 days after notice from us; (g) you are involved in or are the subject of any change-in-control, including any sale of your stock or assets, reorganization or merger; (h) you, or anyone using any of the Services, use or operate any Service in a manner that could, in our sole determination, result in harm to us, our Network, our mobile supplier’s network, our reputation or other customers; (i) you, or anyone using any of the Services, use or operate any Services in a manner that, in our sole determination, is violating or could violate applicable law or the intended business use of that Service; or (j) we determine at any time, in our sole discretion, that your payment record, ability to make timely payments or creditworthiness has become unsatisfactory (even if you have provided or replenished any requested deposits). If we elect to terminate this Contract or any Services under subsections (a) through (i) above, you must pay Early Termination Charges as described in Section 9 below. If we elect to suspend any Services, you must pay all resumption and other charges described in the following Section 8.6.
8.6 If we elect to suspend Services under any circumstances pursuant to this Contract, you must pay all past due and other applicable charges (including the late payment fees and costs described in Section 6.4 above) and a resumption fee of $40 before we will resume providing the Services. Before we resume providing your Services, we may also request satisfactory assurances from you on your future ability to pay for the Services, even if you have paid the required resumption fee and other amounts. These assurances may include a new or increased deposit to guarantee payment for future Services, among other things. If you fail, in our sole discretion, to provide satisfactory assurances or you fail to promptly make all required payments to resume your Services, you will be considered to have terminated this Contract. At such time, you must pay Early Termination Charges (as described in Section 9 below), in addition to all other amounts that you owe under this Contract.
8.7 Subject to the deposit policies described in Section 6.5, Cbeyond® will return the remainder of any deposit to you at the end of the term of this Contract. You will receive interest on the amount of the returned deposit if required by applicable law.
8.8 Termination of Unused Applications. As part of your Cbeyond Services, we will provide you with many applications, all of which require Cbeyond resources to provision and maintain. If we find that you have not used an applications for 90 days, we reserve the right to turn off that application without warning to you and remove it from the bundle of services we provide. Any such application we remove as described in this paragraph will be reactivated as soon as commercially practicable following a request from you to do so. 9. Early Termination Charges. Except for your proper termination of this Contract under Section 8.3 above, in every other instance in which this Contract terminates before the end of the applicable Initial Term or Renewal Term, you must pay an early termination charge (“Early Termination Charge”) as liquidated damages and a reasonable approximation of our loss from early termination. The amount of the Early Termination Charge will be calculated as follows: 9.1 If, after you have signed the Contract, termination occurs before we install our equipment or activate the Services, you shall be liable for $1,000;
9.2 If termination occurs during the Initial Term of this Contract: (a) all outstanding nonrecurring fees plus (b) 100% of the Monthly Fees for each month, if any, remaining in the first year of the Initial Term, plus, if applicable, (c) 75% of the Monthly Fees for each month, if any, remaining in the second year of the Initial Term, plus, if applicable, (d) 50% of the Monthly Fees for each month, if any, remaining in the third year of the Initial Term;
9.3 If termination occurs after the Initial Term of this Contract: (a) all outstanding nonrecurring fees plus (b) 50% of the Monthly Fees for each month remaining in the 1 year of the applicable Renewal Term;
9.4 If termination also occurs as to any BeyondOffice® Services, then an additional amount equal to the lesser of: (a) $500; or (b) $50 for each month remaining in the Initial Term or any Renewal Term of this Contract as described in Section 8.2; and
9.5 If termination also occurs as to any BeyondMobile® Services, then an additional amount equal to the cancellation charge for your mobile plan then in effect. 10. Disclaimer of Warranties. CBEYOND IS PROVIDING THE SERVICES, EQUIPMENT, MOBILE DEVICES AND SERVICES RELATED PRODUCTS (INCLUDING MOBILE RELATED PRODUCTS) TO YOU ON AN “AS IS” BASIS WITHOUT ANY WARRANTY ASIDE FROM THOSE ASSOCIATED WITH YOUR MOBILE DEVICES, EXPRESS OR IMPLIED. CBEYOND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, AMONG OTHERS. YOU ARE SOLELY RESPONSIBLE TO SELECT, USE AND DETERMINE THE SUITABILITY OF CBEYOND SERVICES, MOBILE DEVICES AND SERVICES RELATED PRODUCTS (INCLUDING MOBILE RELATED PRODUCTS), AND CBEYOND WILL HAVE NO LIABILITY FOR THAT SELECTION, USE OR SUITABILITY. CBEYOND DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CBEYOND DOES NOT REPRESENT THAT THE SERVICES, MOBILE DEVICES OR SERVICES RELATED PRODUCTS (INCLUDING MOBILE RELATED PRODUCTS) WILL MEET YOUR REQUIREMENTS OR PREVENT UNAUTHORIZED ACCESS TO YOUR COMPUTERS, NETWORK, SERVERS AND OTHER EQUIPMENT OR TO ANY DATA, INFORMATION OR FILES ON ANY OF THEM. 11. Limitations of Emergency 911 Services.
11.1 General. As with any telephone and/or data technology, there are certain circumstances under which 911 services delivered by Cbeyond may not function. These circumstances include—but are not limited to—the following: (A) the telephone device to which a particular telephone number has been assigned is moved to a location outside the premises where it was originally installed (Cbeyond does not offer, and your service does not include, any “nomadic” telephone or data services); (B) there is a loss of electrical power to the telephone and/or equipment necessary to maintain your broadband connection; or (C) there is an outage, degradation or other disruption to your broadband connection. Your signature on this contract is your acknowledgement that Cbeyond has informed you of these limitations and that you accept the services with these limitations.
11.2 REQUIRED FEDERAL COMMUNICATIONS COMMISSION (“FCC”) WARNING. THE FCC REQUIRES THAT WE INFORM YOU OF POTENTIAL LIMITATIONS TO 911 SERVICES DELIVERED VIA YOUR BeyondVoice OR BeyondOffice SERVICE WITH SIP-CONNECT. 911 AND/OR E911 SERVICES WILL NOT BE AVAILABLE OR FUNCTION IF (A) THE TELEPHONE DEVICE TO WHICH A PARTICULAR TELEPHONE NUMBER HAS BEEN ASSIGNED IS MOVED TO A LOCATION OUTSIDE THE PREMISES WHERE THE TELEPHONE DEVICE WAS ORGINALLY INSTALLED; (B) THERE IS A LOSS OF ELECTRICAL POWER TO THE TELEPHONE AND/OR TO EQUIPMENT NECESSARY TO MAINTAIN YOUR BROADBAND CONNECTION; or (C) THERE IS AN OUTAGE, DEGRADATION OR OTHER DISRUPTION TO YOUR BROADBAND CONNECTION. YOUR SIGNATURE BELOW TO THIS CONTRACT WILL BE YOUR ACKNOWLEDGMENT THAT CBEYOND HAS ADVISED YOU OF THESE LIMITATIONS AND THAT YOU ACCEPT THE SERVICES WITH THESE LIMITATIONS. CBEYOND WILL ALSO PROVIDE LABELS TO YOU THAT ALERT USERS TO THE LIMITATIONS IN THIS PARAGRAPH 11.2. THE FCC RECOMMENDS THAT YOU PLACE THESE LABELS ON OR NEAR THE TELEPHONE AND OTHER EQUIPMENT ASSOCIATED WITH YOUR BeyondVoice OR BeyondOffice SERVICE WITH SIP-CONNECT SERVICE.
11.3 BeyondMobile® DOES NOT INTERACT WITH 911 AND OTHER EMERGENCY SERVICES IN THE SAME MANNER AS LANDLINE TELEPHONE SERVICES. DEPENDING ON YOUR LOCATION, THE TYPE OF MOBILE DEVICES AND OTHER EQUIPMENT YOU USE, THE TYPE OF EQUIPMENT USED BY THE PUBLIC SAFETY ACCESS POINT OR OTHER APPLICABLE EMERGENCY SERVICES PROVIDER AND THE CIRCUMSTANCES AND CONDITIONS OF A PARTICULAR CALL, YOU MAY NOT BE CONNECTED OR YOUR PHONE NUMBER AND/OR LOCATION MAY NOT BE IDENTIFIABLE TO EMERGENCY SERVICE PROVIDERS. EMERGENCY 911 SERVICE THAT IS COMPATIBLE WITH THE FCC TECHNICAL REQUIREMENTS IS NOT AVAILABLE IN ALL AREAS, AND EVEN IN THOSE AREAS WHERE IT IS AVAILABLE, IT IS NOT ENTIRELY RELIABLE. MOREOVER, IF YOUR MOBILE DEVICES OR EQUIPMENT ARE NOT GPS-ENABLED, EMERGENCY SERVICES PERSONNEL MAY HAVE MUCH LESS PRECISE LOCATION INFORMATION. THE INFORMATION AVAILABLE TO EMERGENCY SERVICE PROVIDERS MAY ALSO BE LIMITED IF YOUR NUMBER OR NUMBERS ARE IN THE PROCESS OF BEING PORTED. BY YOUR SIGNATURE BELOW TO THIS CONTRACT, YOU ACKNOWLEDGE THAT EMERGENCY 911 SERVICE IS NOT AVAILABLE IN ALL AREAS, IS NOT COMPLETELY RELIABLE AND IS FURTHER LIMITED WHEN USING NON-GPS ENABLED MOBILE DEVICES OR EQUIPMENT OR DURING THE NUMBER PORTING PROCESS. 12. Your Sole Remedy against Cbeyond; Cbeyond Liability Limitations.12.1 You agree that your sole remedy against Cbeyond for our failure to comply with this Contract will be to obtain the credit(s) provided in Sections 2 and 4 above or, if applicable, to terminate the affected BeyondVoice® or BeyondOffice Service as described in Section 8.3.
12.2 Cbeyond is not liable for any damages, including indirect, incidental, consequential, punitive or special damages relating to loss of data, profit, revenue or business or the loss, damage or destruction of any property, whether you, your assignee or any other transferee suffer that loss or damage and whether or not Cbeyond is informed in advance of the possibility of such loss or damage. If you purchase the Cbeyond Smart Start Application Set Up Tutorial (“Smart Start Tutorial”), Cbeyond will be installing software and making other changes to one or more computers at your service location; it is your responsibility to back up all software and data on your computer's hard drive(s) and/or any other storage devices before the Smart Start Tutorial. Cbeyond and/or its agents shall not be responsible at any time for any loss, alteration, or corruption of any software, data, or files. Cbeyond is not liable for the content, accuracy or quality of information transmitted through its equipment, facilities or Services or through the Mobile Devices or Services Related Products (including Mobile Related Products), and you agree to assume all risk of transmitting, receiving or using any such content or information.
12.3 Cbeyond is not liable for any injuries, death or loss to any person or for damage, loss or destruction of any property of any person as a result of Cbeyond’s act or omission in developing, adopting, implementing, maintaining or operating any Emergency 911 or similar system or in identifying the telephone number, name, address, location or any other information on anyone accessing or trying to use or access the Emergency 911 or similar system. Cbeyond is not liable for errors or omissions in any information about you in any published directory. You agree to be solely responsible for ensuring the accuracy of any information about you in any published directory.
12.4 Cbeyond’s sole liability to you for any claims, losses or damages caused by the Services or equipment or otherwise under this Contract are limited as described in this Section 12. You agree that these limitations are reasonable. You also acknowledge that without these limitations of liability, your Monthly Fee and other charges and fees under this Contract would be substantially higher. You further agree that the limitations on Cbeyond’s liability in this Section 12 will apply in any action or proceeding against Cbeyond, whether based in contract, tort (including negligence or strict liability) or under any statute, law, rule or otherwise. 13. Your Liability for Cbeyond loss and damage. To the extent you are the cause of any loss, damages, or liabilities to Cbeyond, you agree to reimburse, compensate and pay Cbeyond for any losses, claims, damages, liabilities or penalties that Cbeyond or any of our officers, directors, agents, successors or assigns may incur from your purchase or use of the Services and our equipment, except to the extent that any loss, damages or liabilities are caused by Cbeyond’s gross negligence or willful misconduct.
14. Force Majeure. We will not be in violation of this Contract or otherwise liable for any delay, failure to perform or equipment or property damage, loss, destruction or malfunction or any consequence thereof, caused in whole or in part by anything beyond our reasonable control, including, without limitation, fire, earthquake, flood, weather, acts of God, public health emergency or pandemic, labor disputes, utility curtailments, power failures, cable cuts, failure caused by telecommunications or other Internet provider(s), Mobile Devices or other Services Related Products (including Mobile Related Products), worms, Trojan horses, viruses or other destructive code or software, explosions, civil disturbances, terrorism, vandalism, governmental actions or shortages of equipment or supplies (collectively, “Event of Force Majeure”).
15. Publicity. Neither party will use the other’s name, logo, product names or trade or service marks, or refer to the other directly or indirectly in any advertising, sales presentation, news release, release to any professional or trade publication or for any other purpose without the other’s prior written approval.
16. Maintenance. We may perform maintenance that may affect the availability or functionality of all or part of the Services at any time. Any impact on the Services as a result of maintenance will not be deemed our breach of this Contract or the Network Availability Commitment and will not entitle you to any credit, refund or right to terminate this Contract or any affected Service.
17. Relocation of Services. If you desire to transfer your service from your Service Address to a different location, you must request that move in writing to us at least 6 weeks in advance. If your new location is within our serving area, you and Cbeyond® must enter into a new contract with a term of no less than the Initial Term. That new contract may include additional or different installation, recurring and other charges and fees. In addition, we may assess you the following relocation fee each time you change any service location: $500 for BeyondOffice® services and $500 for each 1.5 Mbps of bandwidth you are having delivered to your new service location. If your new location is not within our serving area or Services end at the prior Service Address and a new agreement for the new location is not entered into by the parties, you will be deemed to have terminated this Contract and Early Termination Charges will apply.
18. Acceptable Use Policy and Unlimited Voice/Data Plans. You agree to comply at all times with our Acceptable Use Policy (“AUP”) which is posted on the Internet at www.cbeyond.net and is incorporated in this Contract by reference. We may change the AUP at any time without prior notice to you, and any AUP amendments will be effective upon posting on our website. When offered for sale, all Cbeyond unlimited calling and data plans are subject to restrictions set forth in the AUP regarding the uses for which they may be employed.
19. Additional Services. You may order additional or different Cbeyond Services after the date of this Contract through our website or by email, facsimile or telephone call to us. Except to the extent expressly governed by another agreement you sign with us, any additional Services that you order through whatever means will be governed by these Terms and Conditions as modified by explicit terms for such additional Services posted on the Internet at www.cbeyond.net and incorporated herein by reference. Your use of any additional Services will be deemed to be your consent to comply with any additional terms and conditions.
20. General.
20.1 This Contract may only be amended by a written document that is signed by you and an authorized Cbeyond employee at the level of Sales Vice President or above or a Customer Solutions Advisor, Field Solutions Advisor, Inside Sales Representative or Retention Representative at the level of manager, director or above. This Contract contains our entire agreement about the Services and supersedes any prior agreements, understandings or arrangements, both written and oral.
20.2 You may assign your rights under this Contract as part of a change in control or ownership of your business or the entity that has signed this Contract with us provided that (a) you are current on all payments (i.e. no balance older than 30 days) and (b) the person(s) to obtain your rights under this Contract (i) agree(s) with us in writing to assume all of your obligations under this Contract and (ii) meet(s) the creditworthiness and other preconditions that would apply at the time to a new customer under similar circumstances. If all preconditions in (a) and (b) are not met, we may treat the Contract as terminated under section 8.5, above.
20.3 Any party to this Contract will be considered to have given up or waived its right to require strict performance and compliance by the other party only when it has signed a written agreement or acknowledgement that waives that strict performance and compliance in any instance. Any written waiver in any one instance will not apply to any other or later non-performance or non-compliance by the other party.
20.4 Arbitration. Except in an action for injunctive relief, arbitration shall be the sole remedy available to the Parties to this Contract to resolve any controversy or claim arising out of or relating to this Contract, the breach thereof, or the commercial relationship between the parties, including, without limitation, any claim based upon or arising from an alleged tort or the alleged violation of any statute. Such arbitration shall be settled in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date of this Agreement, except that the arbitration need not be administered or conducted by the American Arbitration Association. Any remedy that would be available from a court of law or equity shall be available from the arbitrator(s). Judgment on the award rendered by the arbitrator(s) may be rendered in any court having jurisdiction thereof. Cbeyond and you acknowledge that this Agreement involves interstate commerce and that all arbitration and related proceedings, including, without limitation, confirmation proceedings, conducted hereunder shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1, et. Seq. The arbitration hearing and all proceedings in connection therewith, including, without limitation, confirmation proceedings, shall take place in Atlanta, Georgia. The arbitration hearing shall be commenced within ninety (90) days of the filing of a Demand for Arbitration by either party, and the award shall be rendered within thirty (30) days of the conclusion of such hearing. Cbeyond and you hereby expressly agree that this paragraph constitutes a valid agreement to arbitrate.
20.5 Injunctive Relief and Governing Law. In any action for injunctive relief, each party consents to the exclusive jurisdiction of the state and federal courts having jurisdiction in the county of your Service Address or Cobb County, Georgia. This Contract will be governed by and interpreted in accordance with the laws of the State of Georgia, without regard to conflict of laws principles, and is subject to any federal, state or local tariffs that may apply. If any conflict should arise between the terms of this Contract and an applicable tariff, you agree that the terms of the applicable tariff shall control.
20.6 You acknowledge that future rules, tariffs, regulations, orders, treaties or other laws promulgated, enacted, or entered into by international, federal, state or local legislatures, agencies, governments or other regulatory bodies may affect our respective rights or obligations under this Contract. If any such future action adversely affects Cbeyond’s rights or obligations under this Contract, then we may require, upon 30 days notice to you, that the parties renegotiate this Contract in good faith to address the effect of such actions. Your failure to do so will be deemed to be your termination of this Contract, subjecting you to Early Termination Charges as described in Section 9 above.
20.7 If an arbitrator or court should declare any one provision of this Contract to be invalid, then the other provisions will remain in effect and the parties will work in good faith to agree to a replacement provision that has the same or similar intent as the original provision. This Contract is for the sole benefit of you and Cbeyond, and no other person.
20.8 All notices under this Contract must be in writing, with all notices to us to be sent to: Cbeyond Communications, LLC, Attn: Customer Care, 320 Interstate North Parkway, Suite 300, Atlanta, GA 30339 or to any other address that we may notify you or post on our web site.
20.9 The Section headings used herein are for reference only and will not enter into the interpretation of this Contract. | |