Below is a copy of our Terms and Conditions received by O1 customers with all orders.
Updated 05.21.08
These Terms and Conditions and any other executed attachments and any addenda or amendments are collectively called the "Agreement." The Agreement is effective when accepted by an O1 officer (the "Effective Date).
Equipment & Services. O1 agrees to sell and Customer agrees to buy or license the equipment and services on the Services Order Form. For equipment details, please see www.o1.com/policy/. Services are subject to O1's Service Level Terms, see www.o1.com/policy/.
Charges. Recurring charges are billed monthly in advance. Non-recurring charges are billed as they occur or in advance. Charges begin when Equipment (if applicable) is delivered and Services have been activated. "Activated" means the telecommunications Services are ready for live customer use. This is the Service Commencement Date. Please see O1's Installation Policy at www.o1.com/policy/ for details. Billing for partial months is prorated. If Customer has paid for expedited installation, O1 will use its reasonable efforts to achieve it, but Customer understands O1 has no control over performance of third parties having an effect on such installation and that such fees are nonetheless nonrefundable. The Agreement is subject to O1's Financial Policy Statements found at www.o1.com/policy/ incorporated by reference. Customer has read, understood and has had opportunity to ask O1 about them, and agrees with the Financial Policy Statements.
Payment of Invoices. Customer agrees to pay O1 within the time on O1's invoice. If any amount due is not received on or before the due date, a late payment charge of one and one-half percent (1 ½%) per month (or the highest rate allowed by law) may be assessed. If Customer fails to pay invoices when due, O1 may require a deposit as a condition of continued Services and Licensed Equipment use and/or require cash in advance of Services. O1 is not obligated to transfer Customer's transportable toll free, local or other numbers to another carrier if Customer has an outstanding balance.
Additions or Changes. Customer may request additions or changes to quantities or types of Equipment or Services originally ordered by making a written request for the addition or change. For additions or items under $5,000, Customer and O1 agree that those may be completed by e-mail or telephone with subsequent e-mail confirmation and that these Terms and Conditions apply. If Customer requests and O1 approves changes to the Equipment or Services, including without limitation dates for delivery or Service Commencement Date, additional charges may apply. Any additional or changed Equipment or Services are subject to this Agreement; Customer's receipt and use of them represent Customer's assent to the Agreement.
Current Charges. Current charges for Equipment and Services are subject to change, including those resulting from additions or changes to Equipment or Services.
Off-Net Service. O1 may provide Off-Net services (i.e. where a portion of Customer's telecom services are provided by another provider) on an individual case basis. O1 will invoice Customer for its portion of the Off-Net service and will manage provisioning of its own Services. CUSTOMER UNDERSTANDS AND AGREES THAT O1 WILL NOT BE LIABLE FOR ANY FAILURE, DEFICIENCY, DELAY OR ERROR OF ANY OTHER TELECOM PROVIDER.
Pricing Protections. Prices quoted by O1 are valid for the time stated. However, prices quoted to Customer prior to provisioning may be dependent on O1's costs from third party suppliers over which O1 has no control. Therefore, pre-provisioning pricing will be in good faith but if costs increase from third party suppliers prior to final pricing, O1 will pass such increases through to Customer.
Configuration Services Grace Period. For fifteen (15) days after Service Commencement Date for O1 Voice Services and five (5) days for Data Services, on the Services Order Form, Customer may buy or license additional or substituted Equipment or Services. For those items, there will be no charge during this period for O1 telephone support for configuration services. After that period, the Additions and Changes procedures above apply.
Early Termination Charges. Equipment and Services are provided for the term specified in the Services Order Form. If, prior to expiration of the term, Customer wants to terminate Equipment and Services or any portion, Customer will notify O1 in writing thirty (30) days prior to early termination. Regardless of notifi cation, Customer is liable for early termination charges as valid compensation and not as penalty as follows: (1) If an order or part of an order is cancelled prior to Service Commencement Date, Customer will pay any costs incurred by O1 as a result of the cancellation; (2) If an order or part of an order is cancelled after the Service Commencement date, Customer will pay 100% of Customer’s current monthly charges multiplied by the number of months remaining in the current Agreement term; (3) 100% of non-recurring charges previously waived or reduced; provided however, if Customer is currently under a multi-year agreement, and terminates Equipment and Services at one location while retaining Equipment and Services at other locations, then the early termination charges for the terminated location will be calculated on an individual case basis. Customer will also pay the applicable non-recurring charges for terminated Equipment and Services, even if initially waived. If O1 incurs termination expenses from third parties regarding terminated location, Customer will pay these expenses. If Customer wants to relocate the Services to a location other than that on the Services Order Form, the relocation is considered a termination. However, if the relocated Services’ monthly recurring charges and term are equal to or greater than the terminated Services, Customer will pay only O1’s disconnection, termination and installation expenses incurred in the relocation.
Disconnection by Customer. Customer's disconnection or disuse of Equipment or Services prior to expiration of the Agreement term will cause acceleration of Customer's obligations under the Agreement, including Early Termination Charges.
Regulatory or Other Changes. If changes in Federal or State laws, regulations, decisions, rules or orders materially increase the costs or other terms of Services, O1 will inform Customer of the increase and of O1's intent to implement. Customer may request negotiation of the increase within ten days of receipt of O1's notice. If the parties are unable to reach agreement within thirty (30) days after O1's delivery of notice, then Customer may terminate the affected Service without incurring termination liability for this increase by delivering written notice of termination no later than thirty (30) days after the effective date of the rate increase.
Agreement Term. The Agreement term is specified on the Services Order Form and commences on the Effective Date. Unless either party gives written notice to the other at least sixty (60) days prior to expiration of the term giving notice of termination at the end of the Term, this Agreement will change to a month to month basis. If the term in the Service Order Form for a particular Service extends beyond the Agreement Term, the Service will remain in effect for the agreed Service term, as will the Terms and Conditions.”
Termination by O1. O1 may immediately terminate the Services, repossess Licensed Equipment and terminate this Agreement without notice if Customer is in arrears in payment of any amounts due and has not cured within forty-five (45) days from the date of the invoice. O1 may terminate this Agreement without notice to Customer if O1 reasonably determines that Customer is misusing or abusing Licensed Equipment, Service or network or is using Licensed Equipment, Services or network for an unlawful purpose or if Customer breaches any material provision of this Agreement or if Customer sells all or substantially all of its assets or stock or attempts assignment of the Agreement without O1's prior written consent.
Termination by Customer. Customer may terminate this Agreement if O1 has breached its material obligations hereunder. Customer must give O1 written notice specifying in detail the breach, giving O1 forty-five (45) days to cure. If O1 fails to cure within that time, Customer may terminate affected Services and return Licensed Equipment without liability or payment of Early Termination Charges, but Customer will pay applicable charges for Services or Licensed Equipment up to the date of termination.
Termination by Either Party. Either party may terminate this Agreement without liability if O1 is prohibited from furnishing the Equipment or Services or if any material rate or term contained herein is subsequently changed by order of a court, the FCC or the California Public Utilities Commission.
Confidentiality Provisions. This Agreement is subject to the terms of O1's Confidentiality Statement found at www.o1.com/policy/ which are hereby incorporated by reference. Customer has read, understood and has had the opportunity to ask O1 questions about them, and agrees with the Confidentiality Statement.
Customer Proprietary Network Information. Under this Agreement O1 will gain access to Customer Proprietary Network Information ("CPNI") regarding the quantity, technical configuration, type, destination, location, and amount of use of the Services, including information contained in invoices pertaining to the Services. Customer hereby grants O1 the right to use Customer Proprietary Network Information in communication with agents and subcontractors and in connection with discussing current or additional Equipment and Services with Customer and Customer waives further notice thereof.
Emergency services, 911 and E911. Potential Non-Availability. Voice Services may not support traditional 911 or E911 access to emergency services in all locations. Where we do not offer traditional 911 or E911 access, we offer a 911 service which is a limited emergency calling service available only on O1-certified Equipment. OUR 911 SERVICE FEATURE IS NOT AUTOMATIC; YOU MUST SEPARATELY TAKE AFFIRMATIVE STEPS TO REGISTER THE ADDRESS WHERE YOU WILL USE THE SERVICES TO ACTIVATE THE 911 SERVICE FEATURE. YOU MUST DO THIS FOR EACH O1 PHONE NUMBER YOU OBTAIN. THE 911 SERVICE FEATURE IS DIFFERENT IN A NUMBER OF IMPORTANT WAYS FROM TRADITIONAL 911 OR E911 SERVICE. YOU MUST INFORM ANY RESIDENTS, GUESTS, INVITEES AND OTHER THIRD PARTIES PRESENT AT THE PHYSICAL LOCATION WHERE YOU USE THE SERVICE OF (I) THE NON-AVAILABILITY OF TRADITIONAL 911 OR E911, AND (II) THE IMPORTANT DIFFERENCES IN AND LIMITATIONS OF THE O1 911 SERVICE FEATURE AS COMPARED WITH TRADITIONAL 911 OR E911 SERVICE. FOR EACH PHONE NUMBER YOU USE FOR THE SERVICE, YOU MUST REGISTER WITH O1 THE PHYSICAL LOCATION WHERE YOU WILL BE USING THE SERVICE WITH THAT PHONE NUMBER. IF, WITH O1'S PERMISSION, YOU ARE ALLOWED TO MOVE THE PHONE TO ANOTHER LOCATION, YOU MUST REGISTER YOUR NEW LOCATION. IF YOU DO NOT REGISTER YOUR NEW LOCATION, ANY CALL YOU MAKE USING THE 911 SERVICE FEATURE MAY BE SENT TO AN EMERGENCY CENTER NEAR YOUR OLD ADDRESS. YOU WILL REGISTER YOUR INITIAL LOCATION OF USE WHEN YOU SUBSCRIBE TO THE SERVICES. THEREAFTER, YOU MAY REGISTER A NEW LOCATION BY FOLLOWING THE INSTRUCTIONS PROVIDED BY O1. FOR PURPOSES OF THE 911 SERVICE FEATURE, YOU MAY ONLY REGISTER ONE LOCATION AT A TIME FOR EACH PHONE LINE YOU USE WITH THE SERVICE. WE CONTRACT WITH A THIRD PARTY TO USE THE ADDRESS OF YOUR REGISTERED LOCATION TO DETERMINE THE NEAREST EMERGENCY RESPONSE CENTER AND THEN FORWARD YOUR CALL TO A GENERAL NUMBER AT THAT CENTER. WHEN THE CENTER RECEIVES YOUR CALL, THE OPERATOR MAY NOT HAVE YOUR ADDRESS AND MAY NOT HAVE YOUR PHONE NUMBER. YOU MUST THEREFORE PROVIDE YOUR ADDRESS AND PHONE NUMBER IN ORDER TO GET HELP. SOME LOCAL EMERGENCY RESPONSE CENTERS MAY DECIDE NOT TO HAVE THEIR GENERAL NUMBERS ANSWERED BY LIVE OPERATORS 24 HOURS A DAY. IF WE LEARN THAT THIS IS THE CASE, WE WILL SEND YOUR CALL INSTEAD TO A NATIONAL EMERGENCY CALLING CENTER AND A TRAINED AGENT WILL CONTACT AN EMERGENCY CENTER NEAR YOU TO DISPATCH HELP. YOU HEREBY AUTHORIZE US TO DISCLOSE YOUR NAME AND ADDRESS TO THIRD-PARTY SERVICE PROVIDERS, INCLUDING, WITHOUT LIMITATION, CALL ROUTERS, CALL CENTERS AND PUBLIC SERVICE ANSWERING POINTS, FOR THE PURPOSE OF DISPATCHING EMERGENCY SERVICES PERSONNEL TO YOUR REGISTERED LOCATION.
Telecommunications Facilities and Internet Service. Services will, at O1's option, be provided via telecommunications facilities owned by O1, via telecommunications facilities leased from one or more other telecommunications carriers or via a combination of the forgoing. Customer authorizes O1 to convert the Services provided solely through the facilities of one or more other carriers (i.e. facilities based Services). O1 makes no warranties as to a particular speed for our Internet access Services. O1 may select, at its sole discretion, the delivery method of such Services.
Limitation of Liability and Damages; Disclaimer of Implied Warranties. O1 warrants that the Equipment and Services will operate in accordance with their respective specifications. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, LIABILITIES AND OBLIGATIONS OF O1 OR ITS AFFILIATES FOR CLAIMS OR DAMAGES ARISING OUT OF DELIVERY, INSTALLATION, USE OR PERFORMANCE OF THE EQUIPMENT AND/OR SERVICES AND IS THE ONLY WARRANTY MADE BY O1. EXCEPT AS SET FORTH HEREIN, ALL EQUIPMENT AND SERVICES ARE PROVIDED "AS IS." ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE ARE EXCLUDED. CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH REGARD TO THE AGREEMENT, THE EQUIPMENT OR SERVICES OR ANY DEFECT, ERROR, OMISSION, DELAY, MISTAKE, INTERRUPTION, SUSPENSION, OR OTHER FAILURE OF EQUIPMENT OR SERVICES (THE "DEFECT"), WILL BE, AT O1'S OPTION, O1'S REPAIR OR REPLACEMENT OF ANY ITEM WHICH HAS A DEFECT. IF THIS REPAIR AND REPLACEMENT REMEDY SHOULD FAIL OF ITS ESSENTIAL PURPOSE, OR IF, AFTER REPEATED EFFORTS, O1 IS UNABLE TO FIX THE DEFECT, THEN CUSTOMER'S EXCLUSIVE MEASURE OF DAMAGES REGARDLESS OF FORM OF ACTION AND WHETHER IN CONTRACT, TORT, STRICT LIABILITY, WARRANTY OR ANY OTHER CAUSE SHALL NOT EXCEED CHARGES FOR AFFECTED EQUIPMENT OR SERVICES FOR THE TIME PERIOD WHEN THE DEFECT OCCURRED. O1 WILL HAVE NO LIABILITY FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Indemnity. O1 will indemnify Customer for its damages if O1 is adjudged infringing on copyright or trademark rights of a third party for the Equipment or Services, provided O1 is given adequate notice and opportunity to defend the action. This sets forth O1's entire liability for violation or infringement of copyright, trademark or other proprietary rights and is in lieu of any other indemnity.
Dispute Resolution Process. This Agreement is governed by California law excluding its conflicts of laws provisions. If a dispute arises which cannot be resolved by the parties, O1 and Customer will appoint a mediator to resolve the dispute through mediation. If either party disputes the findings of the mediator, the matter may be submitted to arbitration by an organization such as the Judicial Arbitration and Mediation Service (JAMS), the American Arbitration Association (AAA), or similar organization. The arbitration proceeding will be in Sacramento, California and the parties consent to personal jurisdiction and venue there. The rules of civil procedure and evidence will not apply. The award of the arbitrator is binding; judgment may be entered in any court of competent jurisdiction and may include costs and expenses (including attorney's fees). In the event of a disputed billing, only the amount being disputed in good faith may be withheld pending resolution of the dispute.
Boilerplate. Neither this Agreement nor any rights or obligations of Customer may be assigned in whole or in part without the prior written approval of O1, which will not be unreasonably withheld. O1 may assign performance of certain obligations under this Agreement to its sub-contractors or agents. Notices to O1 must be sent to Contracts Administration, 1515 K Street, Suite 100, Sacramento CA 95814. Notices to Customer will be sent to the address listed on the Summary sheet or to the signing representative. Notices must be sent by certified mail, return receipt requested or by e-mail; otherwise notice is invalid. No amendment or modification to the Agreement is binding on any party to this Agreement unless the amendment or modification is in writing, signed by the parties. No Agreement provisions will be construed against or interpreted to disadvantage of a party by any court or other judicial authority by reason of such party's having drafted the provision. No failure or delay of any party to exercise any right herein and no failure to insist on strict compliance by the other with its obligations hereunder, and no custom or usage of the parties at variance with the terms of the Agreement, will constitute modification of this Agreement or will waive any party's right to demand strict compliance with the terms of this Agreement. Subject to any limits on assignability or transferability, the Agreement is be binding upon and will inure to the benefit of the parties, their respective heirs, executors, administrators, personal representatives, successors and assigns. If any term or condition of the Agreement is adjudged invalid or unenforceable, the remainder of the Agreement will not be affected and all provisions remain valid and enforceable. Agreement contains all agreements, understandings, representations, warranties, and conditions; it constitutes the entire agreement between the parties about to the subject matter hereof superseding all prior communications or agreements, written or oral. No representations, inducements, promises, or agreements, oral or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein and no other agreement, statement, or promise not contained in this Agreement is valid or binding. The parties agree to do such further acts and to sign and deliver such additional agreements, documents and instruments as are reasonably necessary to implement the terms of this Agreement. If there is inconsistency between the Summary sheet, these Terms and Conditions and any schedules or other attachments, the Terms and Conditions control. Use of the Equipment and Services constitutes acceptance. Equipment and Services are subject to O1's Federal and State tariffs incorporated by reference, amended from time to time. References to 'we", "us", "our", the "Company" or "O1" mean O1 Communications, Inc. References to "you" and "your" mean Customer.
