Master Service Agreement
This Master Service Agreement ("Agreement") is entered into on the date services begin, as outlined in this Agreement (“Effective Date”), by and between SOUTHERN CALIFORNIA TELEPHONE CO., a Delaware corporation (“SCTC”) and the individual receiving services from SCTC (“Customer”). SCTC and Customer referred herein individually as a “Party” and collectively as the “Parties”. This Agreement sets forth the general terms and conditions applicable to Customer’s purchase of communications services (“Service(s)”) from SCTC. This Agreement consists of the general terms and conditions stated herein which terms and conditions incorporate and include the SCTC Service Level Agreement (“SLA(s)”) and Acceptable Use Policy (“AUP(s)”) collectively, (the “Terms of Service”) located at www.socaltelephone.com.
SCTC reserves the right to modify the Terms of Service at any time. In the event of a conflict, the order of priority shall be the Service Order, the General Terms and Conditions contained herein, the SLA, and then the AUP.
GENERAL TERM AND CONDITIONS
THESE TERMS AND CONDITIONS OF SERVICE GOVERNING CUSTOMER’S USE OF SCTC’S SERVICE(S) INCLUDE A BINDING ARBITRATION PROVISION FOR USE OF SCTC SERVICES, WHICH INCLUDES A WAIVER OF CLASS ACTIONS AND PROVISIONS FOR OPTING OUT OF ARBITRATION.
1. Service Orders & Term. Customer must submit requests for Service in a manner and on a form designated by SCTC (“Service Order”). Each Service Order will state the term for which Service is requested (the “Initial Service Term”) and the pricing for the Service. Upon expiration of the Initial Service Term, the Service will renew for a period equal to the Initial Service Term (“Renewal Term”) unless terminated by Customer or SCTC in accordance with this Agreement. In order to terminate the Service, prior to renewal, Customer must provide SCTC with written notice forty-five (45) days prior to the Initial Service Term (or any subsequent Renewal Term) but no earlier than seventy-five (75) days prior to the expiration of such Term. The Initial Service Term and any Renewal Term are collectively referred to herein as “Term”. If Customer wishes to terminate (disconnect) a Service for any reason, Customer is required to follow the disconnection process set forth in Section 4 of this Agreement. After the Initial Service Term, SCTC may modify the rate for a Service upon thirty (30) days prior written notice to Customer.
2. Service Installation and Acceptance.
a. SCTC will issue Firm Order Commitment (the “FOC”) date for a Service to the Customer. Customer acknowledges that FOC dates can change from time to time for various reasons. If SCTC changes the FOC date, SCTC will provide Customer with the updated FOC date. SCTC’s inability or failure to deliver any ordered Service by the FOC Date will not be a default under the Agreement, and SCTC will not be liable to Customer as a result of SCTC’s inability or failure to deliver the Service.
b. SCTC will attempt to provide Service by the requested FOC date but will not be liable for any delays in Service delivery. The “Start of Service” refers to the date that the Service is available for use by Customer, subject to the following Service acceptance process. After SCTC notifies Customer that a Service is available, Customer may test the Service to determine if the Service is operating in accordance with the technical specifications set forth in the applicable Service Request. If Customer provides SCTC with written notice that a Service is in material non-compliance with the applicable Service Request within two (2) business days after the Start of Service, then SCTC will promptly take such reasonable action as is necessary to correct any such non-compliance in the Service and shall, upon correction, notify Customer of a new Start of Service. Any non-compliance notice must contain information describing the nature of the material non-compliance with the technical specifications for the Service(s) in question. If Customer does not deliver such a non-compliance notice within the two (2) business day period, Customer shall be deemed to have accepted the Service, and billing will commence on the original Start of Service date.
3. Service Cancellation. If a Service is cancelled prior to the Start of Service, Customer will pay to SCTC a charge equal to any associated charges incurred by SCTC.
4. Service Disconnection. To disconnect a Service, Customer must complete the SCTC Customer Disconnect Request Form (“Disconnect Notice”). Such termination is effective forty-five (45) days after SCTC’s receipt of the Disconnect Notice, unless otherwise agreed upon by SCTC and Customer.
5. Credit Review & Deposits. Provision of Services is subject to SCTC’s credit approval of Customer. Based on the credit check, SCTC may, in its sole discretion, require that Customer provide a deposit as a condition of purchasing Services. Additionally, during the Term, if Customer fails to make timely payment for Services, SCTC may require adequate assurance of future payment (e.g., a deposit or other acceptable form of security) as a condition of continuing SCTC’s Services. Customer’s failure to provide adequate assurances required by SCTC is a material breach of the Agreement. SCTC may provide Customer’s payment history or other billing/charge information to credit reporting agencies or industry clearinghouses.
6. Invoices and Disputes. Customer must pay all applicable Monthly Recurring Charges (“MRCs”) and Non-recurring Charges (“NRCs”) set forth in the applicable Service Order or pricing attachment. Invoices are delivered monthly and payment is due thirty (30) days after the invoice date (the “Due Date”). Fixed charges are billed in advance and usage-based charges are billed in arrears. Billing for partial months is prorated. Past due amounts bear interest at 1.5% per month or the highest rate allowed by law, whichever is less (“Late Fee”). Customer is responsible for all Service charges, even if incurred as the result of unauthorized use. If Customer reasonably disputes an invoice, Customer must pay the undisputed amount by the Due Date and submit written notice of the disputed amount (detailing the nature of the dispute, the Services and invoice(s) disputed). Customer must submit disputes in writing within 60 days of the date of the invoice or the right to dispute is waived. If a dispute is resolved against Customer, Customer will pay the disputed amounts plus the Late Fee from the initial Due Date. Customer will be liable to SCTC for all costs and expenses incurred in collecting amounts due to SCTC, including legal fees.
7. Taxes and Fees. Except for taxes based on SCTC's net income, Customer will be responsible for all taxes and fees arising in any jurisdiction, including but in no way limited to value added, consumption, sales, use, gross receipts, foreign withholding (which will be grossed up), excise, access, bypass, franchise or other taxes, fees, duties, charges or surcharges (including regulatory and 911 surcharges) imposed on or incident to the provision, sale or use of Service (collectively, “Taxes and Fees”).
8. Regulatory Activity. To the extent permitted by applicable law, in the event of any change to any law, rule, regulation or other regulatory activity (“Regulatory Activity”) that affects the Services provided hereunder, SCTC may at any time upon written notice: (i) pass through to Customer all, or a portion of, any charges or surcharges directly or indirectly related to such Regulatory Activity; or (ii) modify the rates, and/or other terms and conditions contained in the Agreement to reflect the impact of such Regulatory Activity.
9. Use of Service. Customer may use Services for any lawful purpose consistent with SCTC’s then current acceptable use and privacy policies available at www.socaltelephone.com.
10. Service Interruptions. In the event of an interruption of Service, SCTC will use reasonable efforts to restore Service promptly. Whenever an interruption occurs, SCTC shall have no liability or obligation unless and until Customer has notified SCTC or unless SCTC network personnel have actual knowledge of such condition. In the event of an interruption of Service, SCTC’s liability shall be limited to its obligation to issue service credits as described in Section 12 of the Agreement. The duration of any interruption will be calculated from the time the report of the interruption is made to SCTC. In the event of any interruption, Customer shall immediately grant SCTC’s employees, agents, and/or contractor’s access to Customer's premises and all pertinent equipment therein and fully assist and cooperate with SCTC in remedying the interruption.
11. Service Level Agreements. SLAs and additional terms for Services are listed at www.socaltelephone.com and are incorporated herein by reference to the extent Customer orders those Services. SCTC reserves the right to modify the SLAs and additional terms from time to time effective upon notice to Customer set forth in an SCTC invoice to Customer or posted to the SCTC website. The SLAs set forth Customer’s exclusive sole remedies for any claim relating to a Service including any failure to meet any objectives set forth in the SLA. SCTC’s records and data shall be the basis for all SLA calculations and determinations. The maximum amount of credit in any calendar month under an SLA shall not exceed the monthly recurring charge, which, absent the credit, would have been charged by SCTC for the affected Service in that month.
12. Termination. Upon Customer's (i) failure to perform any non-monetary provision of the Agreement or any Service Order hereunder that is not corrected by Customer within thirty (30) days after having received notice from SCTC; (ii) failure to meet any of its payment obligations (including failure to pay a required deposit) that is not corrected in full by Customer within five (5) days after receipt of written notice from SCTC; or (iii) becoming the subject of a bankruptcy, liquidation or other insolvency proceeding or upon commencement of any other action against Customer with respect to creditors in the nature of bankruptcy, insolvency or liquidation, SCTC may, at its option, terminate the Agreement and all underlying Services, suspend all or any Service, and/or require a deposit, advanced payment, or other satisfactory assurances as a condition of continuing to provide Services. In the event of Customer’s default under this Agreement, Customer agrees that SCTC shall have the right to pursue a direct customer relationship with the end user of the Service. SCTC may also pursue all other rights and remedies available to it under the Agreement, at law or in equity, including but not limited to payment of early termination charges.
13. Termination Liability. If SCTC terminates the Agreement or any Service(s) due to Customer's default, or if Customer terminates the Agreement or any Service(s) prior to the expiration of such Service's specified Term, Customer will pay to SCTC an early termination charge equal to (i) all recurring and non-recurring charges specified in the applicable Service Order Form(s) for the balance of each Service's specified Term.
14. Indemnification and Limitations on Liability.
a. Customer and SCTC shall defend, indemnify and hold harmless the other from and against any loss, debt, liability, damage, obligation, claim, demand, judgment or settlement of any nature or kind, known or unknown, liquidated or unliquidated, of any third party, including without limitation all reasonable costs and expenses, such as reasonable litigation costs and attorneys’ fees (“Claim”), relating to damage to tangible property or bodily injury, or wrongful death, to the extent such Claim arises out of the negligence or willful misconduct of the respective indemnifying Party, its employees, agents, or contractors in connection with the Agreement or the provision of Services hereunder.
b. Customer will indemnify, defend and hold SCTC, its affiliates and each of its respective owners, directors, officers, employees and agents, harmless from and against any and all claims, suits, expenses, losses, demands, actions, causes of action, judgments, fees and costs, of any kind or nature whatsoever (“Claims”), to the extent such Claim (i) is brought by a downstream customer of Customer or an end user and arises out of an alleged defect in or failure of Service; or (ii) arises out of or relates to the content transmitted over SCTC’s network, whether sent by Customer or any third party, including without limitation, Claims relating to any violation of copyright law, export control laws, or that such transmissions are libelous, slanderous, or an invasion of privacy or illegal.
c. The indemnified Party shall promptly notify the indemnifying Party in writing of any Claims which are subject to the terms of this section. The indemnified Party shall have the right at its own expense to appoint its own counsel who shall be entitled to participate in any settlement negotiations or litigation regarding any matter for which it is entitled to be indemnified hereunder. The indemnifying Party shall not agree to any settlement or consent to any decree, order or judgment without obtaining the consent of the indemnified Party, which consent shall not be unreasonably withheld.
d. IN NO EVENT SHALL EITHER PARTY’S LIABILITY HEREUNDER TO THE OTHER PARTY EXCEED THE AMOUNT OF SERVICE CHARGES PAID BY THE CUSTOMER DURING THE SIXTY (60) DAY PERIOD PRIOR TO THE ACCRUAL OF THE MOST RECENT CLAIM. In no event will Either party be liable FOR ANY DAMAGES WHATSOEVER FOR LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, THE COST OF PURCHASING REPLACEMENT SERVICES, OR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF THE PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT OR ANY ORDER. SCTC WILL HAVE NO LIABILITY FOR ANY CLAIM AGAINST CUSTOMER BY A THIRD PARTY IN CONNECTION WITH OR FOR RESPONDING TO EMERGENCY 911 OR OTHER EMERGENCY REFERRAL CALLS. NOTWITHSTANDING THE FOREGOING LIMITS OF LIABILITY, A PARTY’S LIABILITY WILL NOT BE LIMITED WITH RESPECT TO CLAIMS ARISING FROM (1) A PARTY’S PAYMENT OBLIGATIONS, INCLUDING EARLY TERMINATION CHARGES; (2) A PARTY’S INDEMNIFICATION OBLIGATIONS.
e. CUSTOMER AGREES THAT THE LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION ARE FAIR AND REASONABLE IN THE CIRCUMSTANCES OF THE AGREEMENT AND THAT SCTC WOULD NOT HAVE ENTERED INTO THE AGREEMENT BUT FOR CUSTOMER’S AGREEMENT TO LIMIT SCTC’S LIABILITY IN THE MANNER AND TO THE EXTENT PROVIDED FOR IN THIS SECTION.
15. Force Majeure. Neither Party will be liable, nor will any remedy provided by this Agreement be available, for any failure of Service due to causes beyond such Party’s reasonable control (“Force Majeure”). Customer will not be obligated to pay SCTC for Service not delivered as the result of Force Majeure.
16. Assignment. Neither the Agreement nor any of Customer’s rights and/or obligations under the Agreement shall be assigned, and/or delegated, and/or transferred by Customer to another party without the express written consent of SCTC (which shall not be unreasonably withheld, delayed or conditioned); however, SCTC may assign and/or delegate the Agreement to any of its related companies or any third party purchaser.
17. Warranties. SCTC MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, RESPECTING THE SERVICE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
18. Confidentiality. The terms of this Agreement and all knowledge and information of a proprietary nature acquired in performing this Agreement are confidential. Each Party and its agents will keep such information confidential and not disclose such information to third parties, other than to its affiliates.
19. Notices. Except as otherwise specifically provided herein, any notices required or permitted to be given under the Agreement shall be given in writing and shall be delivered (a) in person; (b) by certified mail, postage prepaid, return receipt requested; (c) by a commercial overnight courier that guarantees next day delivery and provides a receipt; (d) by electronic mail to Customer at Customer’s designated service and/or billing address, or to SCTC at firstname.lastname@example.org. Customer acknowledges and agrees that SCTC may contact Customer via e-mail at the e-mail address provided to SCTC when Customer ordered the Service for any reason relating to the Service, including for purposes of providing Customer any notices required under the Agreement. It is solely Customer’s responsibility to notify SCTC of any changes to Customer’s email or billing address for such notices. Notice provided by personal delivery, certified mail, or commercial overnight courier is to be delivered to the addresses listed for each Party in the signature area of the Agreement, or to any such other address as either Party may from time to time specify in writing to the other party. Notice shall be effective upon delivery (or refusal to accept delivery.)
20. Dispute Resolution; Mandatory Binding Arbitration; Class Action Waiver.
IF CUSTOMER FOLLOWS THE PROCEDURES SET FORTH IN SECTION 20(b) BELOW, CUSTOMER HAS THE RIGHT TO OPT OUT OF THIS DISPUTE RESOLUTION PROVISION (EXCEPT JURY TRIAL WAIVER) WITHIN THIRTY (30) DAYS OF THE EFFECTIVE DATEOF THIS AGREEMENT (THE “OPT-OUT PERIOD”). OTHERWISE, CUSTOMER WILL BE BOUND TO SETTLE ANY DISPUTES CUSTOMER MAY HAVE WITH SCTC THROUGH THE FOLLOWING DISPUTE RESOLUTION PROCEDURES.
a. CUSTOMER AND SCTC AGREE TO ARBITRATE — RATHER THAN LITIGATE IN COURT — any and all claims, disputes, or controversies between Customer and SCTC, including any parents, subsidiaries, affiliates, officers, directors, employees, or agents of SCTC, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort) or other legal or equitable theory (“Dispute”) that arise out of or in any way relate to this Agreement, any of the Services provided under this Agreement or any other Services or products that SCTC provides to Customer in connection with this Agreement (including but not limited to amounts that SCTC charges Customer for Services or products provided, any alleged breach related to the collection, retention or disclosure of your personal information, and any alleged violation of our Privacy Notice). Customer and SCTC also agree to arbitrate all Disputes that arise out of or relate in any way to any services or products provided to Customer by SCTC or any of its affiliated entities under any other agreement. Notwithstanding this agreement to arbitrate, Customer and SCTC may bring appropriate Disputes against each other in small claims court, if the Dispute falls within the small claims court's jurisdiction, or before the Federal Communications Commission, the relevant state public utilities commission, or any other federal, state, or local government agency authorized by law to hear the Dispute.
b. Opt Out: Customer may opt out of this dispute resolution provision (except for the jury trial waiver contained in Section 20(g) below) by notifying SCTC of that intent during the Opt-Out Period by sending an email to email@example.com or a letter via U.S. mail to SCTC Legal Department, Attn: Litigation Counsel, 27515 Enterprise Circle West, Temecula California 92590 stating that Customer is opting out of this dispute resolution provision. Exercising this right, should Customer choose to do so, will not affect any of the other terms of this Agreement with SCTC, and Customer may remain an SCTC customer. If Customer opt out of the dispute resolution provision, that opt out will remain in effect if SCTC modifies this section in the future or Customer agrees to a new term of service under this Agreement. If Customer enters into a new agreement with SCTC that includes a dispute resolution provision and Customer wants to opt out of that provision, Customer will need to follow the instructions in that agreement for opting out.
c. Class Action Waiver: Customer and SCTC agree that all Disputes between Customer and SCTC will be arbitrated individually, and that there will be no class, representative, or consolidated actions in arbitration. If Customer or SCTC brings a claim in small claims court, the class action waiver will apply, and neither Party can bring a claim on a class or representative basis. Furthermore, neither Customer nor SCTC may participate in a class or representative action as a class member if the class action asserts Disputes that would fall within the scope of this arbitration agreement if they were directly asserted by Customer or SCTC. Both parties agree that this class action waiver is an essential part of our arbitration agreement and that if this class action waiver is found to be unenforceable by any court or arbitrator then the entire arbitration agreement set forth in this Section 20 will not apply to any Dispute between Customer and SCTC, except for the provisions of Section 20(g) waiving the right to jury trial. This class action waiver may not be severed from our arbitration agreement made herein.
d. Arbitrator Authority: The arbitration between Customer and SCTC will be binding. In arbitration, there is no judge and no jury. Instead, a dispute will be resolved by an arbitrator, whose authority is governed by the terms of this Agreement. Customer and SCTC agree that an arbitrator may only award such relief as a court of competent jurisdiction could award, limited to the same extent as a court would limit relief pursuant to the terms of this Agreement. An arbitrator may award attorneys' fees and costs if a court would be authorized to do so, and may issue injunctive or declaratory relief if that relief is required or authorized by the Applicable Law, but that injunctive or declaratory relief may not extend beyond Customer and its dealings with SCTC. Review of arbitration decisions in the courts is very limited.
e. Informal Dispute Resolution: Customer and SCTC agree that Customer will try to resolve disputes informally before resorting to arbitration. If Customer has a dispute, first call SCTC Customer Care at the number listed on your monthly bill statement. If the SCTC representative is unable to resolve your dispute in a timely manner, Customer agrees to then notify SCTC of the dispute by sending a written description of your claim to SCTC Customer Care, ATTN: Corporate Escalation Team, 27515 Enterprise Circle West, Temecula California 92590 so that SCTC can attempt to resolve the issue with the Customer. If SCTC does not satisfactorily resolve Customer’s claim within thirty (30) calendar days of receiving written notice to SCTC Customer Care of your claim, then Customer may pursue the claim in arbitration. Neither Customer nor SCTC may initiate arbitration without first following the informal dispute resolution procedure provided in this paragraph and thereafter, if the dispute is still not resolved, the party who desires to initiate arbitration must provide the other written notice of the intent to file for arbitration. If Customer is sending a written notice of your intent to file for arbitration to SCTC, please send such notice via U.S. mail to SCTC Legal Department, Attn: Litigation Counsel, 27525 Enterprise Circle West, Temecula California 92590. If SCTC is sending Customer a written notice of our intent to file for arbitration, we will send it to the last known address of record we have on file for Customer.
f. Arbitration Procedures: Customer and SCTC agree that this Agreement and the services SCTC provides to Customer affects interstate commerce and that the Federal Arbitration Act and not state arbitration laws applies for all Disputes. All arbitrations shall be conducted by the American Arbitration Association ("AAA"). The AAA's rules are available on its website at www.adr.org or by calling 1-800-778-7879. If the claim asserted in arbitration is for less than $75,000, the AAA's Consumer Arbitration Rules will apply. If the claim asserted is for $75,000 or more, the Commercial Arbitration Rules will apply. If there is a conflict between the AAA's rules and this dispute resolution agreement, this dispute resolution agreement shall control. To initiate arbitration, Customer must send a letter requesting arbitration and describing the Customer’s claims to SCTC at firstname.lastname@example.org or via U.S. mail to SCTC Legal Department, Attn: Litigation Counsel, 27525 Enterprise Circle West, Temecula California 92590. Customer must also comply with the AAA's rules regarding initiation of arbitration. SCTC will pay all filing fees and costs for commencement of arbitration, but Customer will be responsible for its own attorneys' fees and costs unless otherwise determined by the arbitrator pursuant to the terms of this Agreement or Applicable Law. SCTC will not seek to recover its fees and costs from Customer in the arbitration, even if allowed under the law, unless Customers claim has been determined to be frivolous. If Customer is successful in the arbitration, SCTC will pay Customer’s reasonable attorney's fees and costs. If Customer obtains an award from the arbitrator greater than SCTC's last written settlement offer, SCTC will pay Customer $5,000 in addition to what Customer has been awarded in the arbitration. The arbitration will be held in the county of the billing address where SCTC provided Customer service and either Party may appear either in person or by telephone.
g. Jury Trial Waiver: If for any reason this arbitration agreement is found to be unenforceable, or if Customer opts out of this dispute resolution agreement, Customer and SCTC expressly and knowingly WAIVE THE RIGHT TO TRIAL BY JURY and the prevailing Party will be entitled to reasonable attorney’s fees. This means that a Judge rather than a Jury will decide disputes between Customer and SCTC if, for any reason, the arbitration agreement is not enforced.
h. Survival: This dispute resolution provision survives the termination of Customer’s Services with SCTC. If Customer brings a claim against SCTC after termination of its Services that are based in whole or in part on events or omissions that occurred while Customer was a SCTC customer, this dispute resolution provision shall apply.
21. Miscellaneous. This Agreement is binding on the parties and their permitted successors and assigns, and together with any Service Orders and exhibits hereto (if any) constitutes the entire agreement between the parties. As a material part of the consideration for entering into this Agreement, each Party agrees not to contest or assert any defense relating to the authority of any representative or employee of such Party to enter into this Agreement or any Service Order issued pursuant to this Agreement. This Agreement does not create any agency, joint venture, or partnership between SCTC and Customer, each of which are independent business entities. No prior agreements, understandings, statements, proposals or representations, either oral or written, respecting the subject matter hereof apply. Except with regard to an agreed upon Service Order, this Agreement can be modified only in a writing signed by the parties. If any provision of this Agreement is held to be illegal or unenforceable, this Agreement’s unaffected provisions will remain in effect. If either Party fails to enforce any right or remedy under this Agreement, such failure will not waive the right or remedy. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. The federal and state courts located in Riverside County, California, shall be the only courts with jurisdiction to hear disputes under this Agreement, and Customer consents to the jurisdiction of these courts. This Agreement is not binding upon SCTC until signed by an authorized SCTC representative. The Agreement may be executed in one or more counterparts, each of which will be deemed an original, and all of which when taken together will constitute one and the same instrument. The Agreement may be executed by digital signature, and any such digital signature shall be deemed to be an original signature and shall be binding on such Party.