Service Terms and Conditions
LDC Group is committed to providing high-quality services to our customers.
Carrier provides long distance inter exchange telephone service to customers for their direct transmission of voice, data, and other types of telecommunications.
Communications originate when the customer accesses Carrier directly or through the facilities of the local service carrier via one or more access lines, equal or on a dial B up basis. Carrier may act as the customer’s agent for ordering access connection facilities provided by other carriers or entities when authorized by the customer, to allow connection of a customer’s location to the Carrier network. The customer shall be responsible for all charges due for such service arrangements.
The company’s services are provided on a monthly basis (30 days) and are available twentyfour (24) hours per day, seven (7) days per week.
Provision of Services
Regulation: 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”). LDC Group reserves the right, at any time (including retroactively) to (i) to pass through to customer all charges, surcharges or taxes directly or indirectly related to such Activity, and/or (ii) modify the rates and/or terms and conditions of the Agreement to reflect the impact of such Regulatory Change, including, without limitation, the impact of any actions by third parties in connection with such Regulatory Change.
“Tariffs” shall refer to LDC Group’s applicable tariffs. The Agreement incorporates by reference the terms of each such Tariff to the extent Customer subscribes to Services provided by LDC Group which are covered by any applicable Tariff. The Agreement may be superseded by a Tariff filed with the appropriate regulatory agency, which Tariff may contain such modifications of the provisions of the Agreement as LDC Group deems appropriate. LDC Group may modify its Tariffs from time to time in accordance with law and thereby affect Services furnished to Customer hereunder, except that the terms and conditions of the Agreement shall supplement, to the extent not inconsistent, Tariff terms and conditions. If any of LDC Group’s applicable Tariffs are cancelled during the Term of the Agreement, such cancelled Tariff(s) will be deemed to be incorporated by reference into the Agreement on the effective date of cancellation, as supplemented by any non-inconsistent product descriptions, definitions, prices and other terms and conditions contained in the Agreement or similar document posted by LDC Group on an LDC Group website accessible by Customer from time to time and thereby affect the previously tariffed Service furnished to Customer.
Availability of Facilities
LDC Group’s Telecommunications Service (“Service”) is offered and furnished subject to the availability, in LDC Group’s sole judgment, of all necessary facilities, including those acquired by LDC Group from other entities.
Limitations on Services
Service is offered subject to the availability of the necessary facilities and/or equipment and subject to the provisions of this tariff.
Carrier reserves the right to discontinue furnishing service upon written notice, when necessitated by conditions beyond its control or when the customer is using the service in violation of the provisions of this tariff or in violation of the law.
Title to any equipment provided by Carrier under these regulations remains with the Carrier. Prior written permission from the company is required before any assignment or transfer. All regulations and conditions contained in this tariff shall apply to any assignee or transferee.
Use of Service
Service may not be used for any unlawful purposes.
Acceptable Use Policy
The For service packages which include unlimited local, intraLATA, and/or interLATA usage, the services are available for residential voice calling only. If it is determined that usage is not consistent with residential voice applications, such as for Internet access services, commercial facsimile or auto-dialing, telemarketing or other non-residential uses; Company may immediately suspend, restrict or cancel the customer’s service without prior notice and assess and additional $50.00 monthly recurring charge for each month in which such usage occurred. Incidental Internet and other data usage is permitted, provided however, that any usage in excess of 3,000 minutes per month shall be presumed to be not consistent with residential voice applications and shall be subject to the conditions above.
Limitation of Liability
Carrier shall not be liable to any person, firm, or entity for damages, either direct, indirect, consequential, special, incidental, actual, punitive, or for any other damages or lost profits arising out of mistakes, accidents, errors, omissions, interruptions, delays or defects in transmission and not caused by the negligence of the carrier, commencing upon activation of service and in no event exceeding an amount equivalent to the proportionate charge to the customer for the period of services during which , mistakes, accidents, errors, omissions, interruptions, delays or defects in transmission occurred.
Carrier makes no warranty, whether express, implied or statutory, as to the description, quality, merchantability, completeness or fitness for any purpose of the service or local access, or as to any other matter, all of which warranties by Carrier are hereby excluded and disclaimed.
Carrier, at its own expense, will indemnify the customer and hold it harmless in respect to any and all loss, damage, liability or expense asserted against the customer by a third party on account of any property damage or personal injury caused by any negligence or willful misconduct of Carrier or its agents or representatives arising out of performance by Carrier of any testing or other activities on the customer’s premises pursuant to this tariff. Carrier’s obligations under the immediately preceding sentence shall be subject to the customer’s full performance of this tariff and subject further to the customer’s duty to take reasonable precautions in the location, construction, maintenance and operation of all activities, facilities and equipment for the protection against hazard or injury and not to interfere with the services provided by Carrier.
Carrier shall be indemnified and held harmless by the customer against:
1. Claims for libel, slander, infringement of copyright or patent infringement, unauthorized use of any trademark, trade name or service mark arising out of the material, data information, or other content transmitted over the carrier’s facilities; and
2. All other claims arising out of any act or omission by the customer in connection with any service provided by Carrier.
The language set forth in this Section does not constitute a determination by the commission that a limitation of liability imposed by the Company should be upheld in a court of law. Acceptance for fining by the Commission recognizes that it is a court’s responsibility to adjudicate negligence and consequently damage claims. It is also the court’s responsibility to determine the value of the exculpatory clause.
The parties agree that any controversy or claim arising out of Company’s providing of telecommunication services to Customer shall be resolved through alternative dispute resolution means in the following manner.
1. Initially, the parties will engage in nonbinding mediation. Mediation shall be held in ??Nassau, NY. The mediator shall be jointly appointed by the parties and shall have expertise in both Telecommunications and commercial dispute resolution.
2. In the event that the dispute of claim is not satisfactorily resolved through mediation within fortyfive (45) days of notice of such claim or dispute by a party, the parties agree to submit such dispute or claim to binding arbitration. Arbitration shall be held in ??Nassau, NY. Any judgment, decision or award by the arbitrator shall be final and binding on the parties and may be enforced in any court having jurisdiction over a party against whom any such judgment, decision or award is to be enforced. The parties specifically and knowingly waive any rights under State or Federal constitutions or statutes which grant a party the right to trial by jury for any claim that might arise out of Company’s providing of telecommunications services to Customer or which purports to give a party the right to appeal an arbitrator’s judgment decision or award. The rules and procedures of the American Arbitration Association shall apply.
3. The parties shall bear their own costs and expenses, including, but not limited to, attorney’s fees, for any mediation or arbitration, unless otherwise directed by the mediator or arbitrator.
4. Interruption of Service
A credit allowance for interruptions of service which are not due to Carrier’s testing or adjusting, to the negligence of the customer, or to the failure of the channels, equipment,
and/or communications systems provided by the customer, are subject to the general liability provisions set forth in this tariff. It shall be the obligation of the customer to notify Carrier of any interruption in service. Before giving such notice, the customer shall ascertain that the trouble is not being caused by any action or omission by or within the customer’s control and is not in wiring or equipment connected to the Carrier terminal.
Restoration of Service
The use and restoration of service in emergencies shall be in accordance with the Part 64, Subpart D of the Federal Communications Commission’s Rules and Regulations which specifies the priority system for such activities.
For Financial Cause: LDC Group may immediately and at any time terminate the Agreement, discontinue service, cancel an application for service, cancel the Customer’s account, or require customer to deposit funds as security, without incurring any liability, for any of the following reasons: (a) Customer fails to pay any amount owed to LDC Group when due; (b) Customer’s failure to comply with any material term or condition of this Agreement; (c) For usage by Customer beyond any credit limit or prepaid balance limit imposed by LDC Group; (d) If, in LDC Group’s sole judgment, any aspect of Customer’s payment arrangements with LDC Group appear to be fraudulent, including false or misleading credit information, or Customer’s use of a credit card that has been reported as misused or stolen; (e) Customer’s ability to pay, or if, in LDC Group’s sole judgment, Customer’s payment arrangements with LDC Group appear to be inadequate to meet any of Customer’s obligations to LDC Group coming due; (f) Customer’s filing of any voluntary or involuntary Petition in the bankruptcy court which names Customer as the debtor; or (g) Customer communicates any intent to breach, or to not comply with the terms of this Agreement, including but not limited to payment for Services at then-prevailing rates.
Customer Obligation to Pay Through Disconnection Period: Customer shall be responsible for payment of all non-usage based charges through any disconnection period.
Reasonable Use policy for Unlimited Long Distance Plans: LDC Group offers unlimited calling plans and features. However, because unlimited calling plans and features may be subject to abuse, fraud or unreasonable exploitation, LDC Group has prepared this Reasonable Use Policy (“Policy”) as a guide for its customers. The Policy provides guidance regarding impermissible and unreasonable uses of LDC Group services and features, and a summary of LDC Group’s rights in the event that impermissible or unreasonable usage is identified:
“LDC Group’s unlimited long distance plans and features are intended solely for normal commercial use. Our voice services are designed only for continuous live dialog between two individuals. Unusual calling patterns, excessive called numbers and/or consistent excessive usage will each be considered an indicator that usage is exceeding normal standards. Our service may not be used for auto-dialing, continuous, or extensive call forwarding, excessive conferencing, inbound/outbound centralized or distributed call center activity, telemarketing (including charitable or political solicitation or polling), fax or voicemail blasting, or for continuous or extensive chat line access, or as an open telephone line as a monitor, intercom or transcription service. LDC Group shall apply a surcharge of up to $0.04 per minute of use to the number of minutes by which customer’s usage exceeds this normal use policy.”
Cancellation by Customer
If a customer orders services requiring special equipment and/or facilities dedicated to the customer’s use and ten cancels his order before the service begins, a charge will be made to the customer for the non recoverable portions of expenditures or liabilities incurred expressly on behalf of the customer by Carrier.
Payment and Charges for Services
Service is provided and billed on a monthly basis.
Payment is due upon Receipt. Payment will be considered timely if paid within 10 days after the bill is rendered. The bill shall be considered rendered when deposited in the U.S. mail with postage prepaid.
In the event of a dispute concerning a bill, Customer must pay a sum equal to the amount of the undisputed portion of the bill.
The customer is responsible for payment of all charges for services furnished.
Customer is responsible for payment of any state and local taxes (i.e. gross receipts, tax, sales tax, municipal utilities tax) which will be listed as separate line items and which are not included in the quoted rates.
Customers will be charged a late payment penalty.
Customers will be charges on all checks returned to Carrier by the issuing entity.
The Customer will be billed directly by the LEC for certain Dedicated Access arrangements selected by the Customer for the provisioning of direct access arrangements. In those instances where the customer requests the Company to act as agent in the ordering of such arrangements, the Company will bill the Customer directly for Local Access Charges.
The charges for services will be the same whether payment is made by check or credit card billed.
The charge for service is those in effect for the period that service is furnished. If the charges for a period covered by a bill change after the bill has been rendered, the bill will be adjusted to reflect the new charges.
Service Start Date
Invoicing; and Payment Deadline: LDC Group will notify Customer when Service is available for use. The date of such notice shall be the Start of Service Date, and Customer’s obligation to pay for Service shall begin on the Start of Service Date. Service invoicing will occur on a monthly basis. For Service providing an access circuit / loop, the Start of Service Date shall be the earlier of i) the Customer???s first use of the Service or ii) seven (7) days after loop acceptance, regardless of whether all services have been turned up and regardless of Customer readiness. ???Loop acceptance??? is the date the Customer???s loop is active. For MPLS services, including Voice Over MPLS, the Start of Service Date shall be the earlier of i) the Customer???s first use of the Service or ii) seven (7) days after loop acceptance, regardless of whether all services have been turned up and regardless of Customer readiness. Also, the Customer is required to coordinate with LDC Group to install the hub site first, with each remote site to follow.
Non-recurring Charges are due and payable on the Start of Service Date or as otherwise billed by LDC Group.
Monthly Recurring Charges
Monthly Recurring Charges are fixed in amount, not dependent on usage, and billed in advance. If the Start of Service Date is other than on the first day of a monthly billing period or if Service terminates on other than the last day of a monthly billing period, Customer’s first bill shall include pro-ration of the first month’s Service charges, as well as any NRCs not previously paid. Usage Charges are billed in arrears.
Taxes, Surcharges and Other Service Related Fees
Service rates and charges are exclusive of all taxes, fees, tax-related surcharges and tax-like surcharges (as enumerated below). Customer shall be responsible for, and must pay, all taxes, including, without limitation, sales, use, excise, gross receipts, value added, access, bypass, franchise, telecommunications, consumption and other taxes, fees, duties, charges or surcharges, however designated, and imposed directly on LDC Group based on the provision, sale or use of Service. If Customer believes it, or the Services it receives and uses, are exempt from any tax, Customer will provide LDC Group with a properly executed exemption certificate in a form acceptable to LDC Group that evidences the exemption claimed. Customer shall renew such certification annually and shall provide evidence of such continuing certification upon request by LDC Group. In the event Customer fails to renew its tax-exempt certification, or if its tax-exempt certification is repealed, Customer shall be responsible to LDC Group for all such taxes from the date Customer’s tax-exempt certification became invalid. Tax exemption will only apply to Taxes incurred after the date LDC Group receives the Tax Exempt Document (Customer cannot receive credit for any Taxes already billed). Customer’s obligation to pay applicable taxes (and all other charges due and owing for Service) shall survive the expiration of the Agreement. Many surcharges, including but not limited to the Federal Universal Service Fund Surcharge, are not a tax and are not subject to exemption. LDC Group’s primary surcharges are listed at http://www.LDC Group.com/service-terms/64-surcharges.html .
LDC Group may impose recovery fees in order to recover costs associated with regulatory compliance, administrative and network facilities costs.
Disconnection of Service by Carrier
Carrier, upon 5 days written notice to the customer, may discontinue service or cancel an application for service without incurring any liability for any of the following reasons:
Nonpayment of any regulated sum due to Carrier service for more than 20 days beyond the date of rendition of the bill for such service;
A violation of any regulation governing the service.
A violation of any law, rule, or regulation of any government authority having jurisdiction over the service; or
Carrier is prohibited from furnishing services by order of a court or other government authority having jurisdiction.
Timing of Calls
The customers monthly usage charges for Carrier service are based upon the total number of minutes the customer uses and service options subscribed to. Chargeable time begins when the connection is established between the calling station and the called station of PBX. Chargeable time ends when either party hangs up.
There are no charges incurred if a call is not completed.
For billing purposes, the start of the service is the day service is first provided to the customer by the Carrier. The end of service date
Minimum Call Completion Rate
The customer can expect a call completion rate of 99% of calls attempted during peak use periods for all Feature Group (1+) services.
Message Toll Service (MTS)
Outgoing long distance service whereby the customer accesses the Company’s underlying carrier’s network on an equal access or dialup basis.
Monthly Billing Charge
A monthly recurring charge assessed to Customers to offset billing costs such as postage, printing and mailing of Customer invoices.
A monthly FCC Primary Interexchange Carrier Charge (PICC) shall be charged to each telephone number that is prescribed to Carrier.
A monthly recurring regulatory cost recovery charge to offset the cost of complying with FCC mandated rules and regulations governing the providers of telecommunications services
Any person submitting a check to the Carrier, as payment for services, which is subsequently returned by the issuing institution, shall be charged fee at the highest amount applicable under state law.
LDC Group’s Indemnification of Customer: LDC Group will defend and indemnify Customer, its employees, directors, officers and agents, from and against any suit, proceeding or other claim brought by an entity (not a party to or an affiliate of a party to this Agreement) that is caused by, arises from, or relates to damage to real or tangible personal property or personal injuries (including death) arising out of the gross negligence or wilful act or omission of LDC Group in the provision of Service by LDC Group.
Customer’s Indemnification of LDC Group: Customer will defend and indemnify LDC Group, its employees, directors, officers and agents, from and against any suit, proceeding or other claim brought by an entity that is caused by, arises from, or relates to: (a) damage to real or tangible personal property, personal injuries (including death) arising out of the gross negligence or wilful act or omission of Customer in the use of the Service; (b) any fraud arising from Customer’s use of the Service; and (c) representations regarding the nature of Customer’s traffic and any use, operation or resale of Service by Customer in contravention of this Agreement, including without limitation, claims of libel, slander, unauthorized use of copyright or trademark by Customer or the business activities and practices of Customer arising from Customer’s use of the Service.
Even if advised of the possibility of losses or damages, LDC Group shall not be liable, except as set forth herein, for any losses or damages resulting from: (a) its provisioning of Service to Customer; (b) any act or omission of Customer, those using the Customer’s Service or third party entities furnishing products used in connection with Service; or (c) the loss or destruction of Customer data resulting from the use of Service.
Limitation of LDC Group Liability
LDC Group’s liability to Customer for any property damage to Customer premises caused by LDC Group’s gross negligence or wilful misconduct shall in no event be greater than an amount equal to the sum of the payments made by Customer to LDC Group during the three months immediately preceding the event for which losses or damages are claimed. By entering into an Agreement and remaining a Customer, Customer manifests its acceptance of this limitation on direct damages as fair and reasonable.
Indirect or Consequential Damages
Neither LDC Group nor Customer shall be liable to the other for any indirect, incidental, exemplary, punitive or other consequential damages, whether or not foreseeable, including, but not limited to, damages from the loss of data, business goodwill or profits, savings or revenue, harm to business, whether under contract, tort, including negligence, strict liability or any other theory of liability. A party’s out-of-pocket costs for damages recovered by a third party shall be deemed to be indirect damages suffered by such party, except to the extent such damages are part of a claim for which indemnification is due under Section 7.
LDC Group’s sole liability under this Agreement for interruption of service or failure of equipment shall be limited to that amount of LDC Group’s actual fixed charges incurred by Customer during the period of such interruption. LDC Group shall not be liable for any interruption caused by the negligence or willful act or omission of Customer or any third party furnishing any portion of the service hereunder.
LDC Group shall not be liable to Customer for losses or damages resulting from its inability to provide Service or from any delay in meeting a scheduled Start of Service Date or a scheduled change in service date.
In the event any provision of this Agreement other than the provisions associated with the obligations to make payment for Services hereunder, as applied to either Party or to any circumstance, conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid, illegal or unenforceable by a court with jurisdiction over the Parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intention of the Parties in accordance with the applicable law, and the remainder of this Agreement shall remain in full force and effect. The illegality or unenforceability of any provision of this Agreement does not affect the legality or enforceability of any other provision or portion of this Agreement.
LDC Group may assign in whole or in part its rights or duties under the Agreement without prior notice to Customer and upon such assignment LDC Group shall be released from all liability hereunder. Customer may assign the Agreement only with LDC Group’s prior written consent. Subject to this restriction, the Agreement shall inure to the benefit of and be binding upon the heirs, successors, subcontractors, and assigns of the respective Parties.