Terms & Conditions
Billing and Payment
1. Customer is responsible for payment of all charges for circuits and services furnished by Blue Rooster Telecom. Blue Rooster Telecom’s rates do not include applicable federal, state, and local sales, usage, excise taxes, and other assessments imposed by governmental agencies in connection with Blue Rooster Telecom’s provision of circuits and services to Customer. Blue Rooster Telecom shall bill Customer for, and Customer is responsible for payment of, all such taxes and assessments, including any taxes or other such assessments imposed on a retroactive basis.
2. Bills are due and payable as of the invoice date on the bill, which shall be on or about the date of mailing. If Customer’s payment of all charges is not received by Blue Rooster Telecom within fifteen (15) days after the invoice date listed on the bill, it shall be deemed delinquent, and Customer shall thereafter be liable for a late payment fee, assessed at the lesser of (1) the rate of one and one-half percent (1.5%) per month or (2) the highest rate allowed by law per month, on all unpaid amounts until payment thereof is received. If Blue Rooster Telecom initiates legal proceedings to collect any amount due hereunder and Blue Rooster Telecom substantially prevails in such proceedings, then Customer shall pay Blue Rooster Telecom’s reasonable attorneys’ fees and other costs of prosecuting such proceedings and any appeals therefrom. Customer waives any and all rights Customer may have to a jury trial in connection with any proceedings relating to, or arising in connection with, this Agreement.
3. If Customer has chosen to pay monthly bills by credit card, information regarding Customer’s credit card number will be used or disclosed only for purposes of completing such payment transactions, or as required by law. Customer must promptly inform Blue Rooster Telecom of the following: (1) changes in the expiration date of any credit card used for payment of Blue Rooster Telecom’s billings, (2) changes in Customer’s home or billing address, and (3) apparent breaches of security, such as loss, theft, or unauthorized disclosure or use of a credit card.
4. Customer is not responsible for any previously unbilled charges for services furnished prior to three months immediately preceding the invoice date, except for collect calls, credit card calls, third party calls, and “Error File” calls (those which cannot be billed due to the unavailability of complete billing information to Blue Rooster Telecom), which shall have a six-month back billing period. In case of fraud, a back-billing period of no more than three years will apply.
5. In the event Customer fails to pay, in full, any amount owed to Blue Rooster Telecom within thirty (30) days of the invoice date, or in the event Customer violates any of the terms or conditions governing the furnishing of service under this Agreement, Blue Rooster Telecom may, after 24 hours advance written notice to Customer, restrict, suspend, or discontinue the provision of service under this Agreement without incurring any liability whatsoever to Customer. In any such event, Blue Rooster Telecom may also, without notice to Customer and without incurring any liability to Customer, withhold the use of one or more 800 numbers assigned to Customer or prevent the transfer of any such numbers to another carrier. Upon Customer’s payment of all outstanding charges, Blue Rooster Telecom shall release any such restriction on the use or transfer of 800 numbers. Customer will be assessed a charge of twenty-five dollars ($25.00) for each check submitted by Customer to Blue Rooster Telecom that a financial institution refuses to honor, whether due to insufficient funds, a non-existent account, or other reason. The remedies set forth above for nonpayment and other breaches are in addition to, and not in lieu of, any and all remedies at law or equity that are otherwise available to Blue Rooster Telecom, and Customer shall remain liable to Blue Rooster Telecom for all unpaid amounts and other liabilities notwithstanding Blue Rooster Telecom’s restriction, suspension, or discontinuance of service or placement of restrictions on the use or transfer of 800 numbers.
Disputes and Cancellations
Unless Customer provides Blue Rooster Telecom with written notice of disputed charges within thirty (30) days after the invoice date of the bill in which such charges originally appear, such bill shall be deemed to be correct and payable in full by Customer. Such notice shall set forth, in detail, the basis of the disputed charges. Customer agrees to cooperate with Blue Rooster Telecom in an investigation of disputed matters and to provide Blue Rooster Telecom with any further information relating to the disputed charges as Blue Rooster Telecom may reasonably request. In the event Customer provides timely notice of disputed charges, Customer shall not be required to remit payment of the disputed amount during the pendency of the dispute but shall remit payment in full of all undisputed amounts within thirty (30) days of the invoice date, as provided herein. If upon investigation, Blue Rooster Telecom determines that Customer’s dispute is without merit, Customer shall, upon written notice, remit the disputed amount to Blue Rooster Telecom, along with accrued late charges, within five (5) days. If Customer fails to remit such amount in full, Blue Rooster Telecom may pursue any and all remedies available to it for nonpayment of its charges as specified in this Agreement or that are otherwise available at law or equity. Service may be cancelled by Customer at any time upon one (1) days’ written notice to Blue Rooster Telecom. Service may be cancelled by Blue Rooster Telecom at any time upon thirty (30) days’ advance written notice to Customer. Cancellation of service by Customer or Blue Rooster Telecom shall not relieve Customer of responsibility for charges or other liability for facilities and services provided prior to the effective date of cancellation.
The Service Agreement shall not be effective until signed by Customer and accepted by Blue Rooster Telecom. This Agreement shall be deemed to have been made in the State of California and shall be interpreted in accordance with the laws of the State of California. Customer concedes that entering into this Agreement constitutes the transaction of business in the State of California and agrees to submit to the jurisdiction of California courts in any action, suit or proceeding arising out of this Agreement. In the event of legal action to enforce this Agreement, Customer agrees that the venue for such action shall be San Luis Obispo, California.
Authorization and Responsibility
1. Service is provided for the sole use of Customer and persons authorized by Customer to use the service. Customer assumes responsibility for maintaining the security of its PBX or equivalent equipment and services furnished by or to Customer. Customer shall be liable for all fraudulent use of services furnished by Blue Rooster Telecom, including without limitation, fraudulent use of such service by unknown third parties through use of call completion capabilities and remote access features of voice mail services, Customer’s PBX, or PBX-typeservices, such as Centrex, and shall be responsible for any and all calls made. Blue Rooster Telecom reserves the right to change access numbers and IP addresses upon notice to Customer.
2. All service subscriptions are subject to the approval of Blue Rooster Telecom. Customer hereby authorizes Blue Rooster Telecom to investigate Customer’s credit and hereby grants Blue Rooster Telecom permission to disclose to any other interested parties Blue Rooster Telecom’s payment/credit experience with Customer’s accounts. Blue Rooster Telecom reserves the right to request a letter of credit and/or a security deposit from Customer to ensure prompt payment for services rendered.
3. All services shall be used only for lawful purposes. Blue Rooster Telecom reserves the right to discontinue any service in the event Blue Rooster Telecom has reasonable cause to believe that the services are being used for unlawful purposes or are being used in a manner that interferes with Blue Rooster Telecom’s ability to efficiently and properly serve other subscribers.
CUSTOMER’S DUTY TO INSURE AND INDEMNIFY; LIMITATION OF BLUE ROOSTER TELECOM LIABILITY
Customer acknowledges that the provision of telecommunications services and facilities is a complex undertaking and that no assurance can be given by Blue Rooster Telecom that its provision of services or facilities, or transmissions or attempted transmissions over such services or facilities, will not be subject to outages, failures, inadequacies, mistakes, omissions, interruptions, delays, errors, or other defects. Customer further acknowledges that Blue Rooster Telecom has no practical means to prevent and insure against the types and extent of losses, injuries, liabilities, damages, or other harm that may be incurred by Customer, authorized users, or third parties with whom Customer or authorized users may seek to communicate as the result of such outages, failures, inadequacies, mistakes, omissions, interruptions, delays, errors, or other defects, and that Customer, alone, is in a position to prevent and insure against such losses, injuries, liabilities, damages, and other harm. For these reasons, Customer shall be responsible for obtaining any insurance and taking any other measures that may be prudent or necessary in order to protect itself, authorized end users, and other
third parties from any losses, injuries, liabilities, damages, and other harm that may be caused by or in any way result from any such outages, failures, inadequacies, mistakes, omissions, interruptions, delays, errors, or other defects, irrespective of the nature or cause thereof. Customer and Blue Rooster Telecom agree, further:
BLUE ROOSTER TELECOM’S LIABILITY TO CUSTOMER FOR ANY LOSS, INJURY TO PERSON OR PROPERTY, LIABILITY, DAMAGE, OR OTHER HARM OF ANY NATURE THAT IS DUE TO ANY OUTAGE, FAILURE, INADEQUACY, MISTAKE, OMISSION, INTERRUPTION, DELAY, OR OTHER DEFECT IN BLUE ROOSTER TELECOM’S PROVISION OF SERVICES OR FACILITIES OR TRANSMISSIONS OR ATTEMPTED TRANSMISSIONS OVER SUCH SERVICES OR FACILITIES SHALL NOT EXCEED AN AMOUNT EQUAL TO THE CHARGES APPLICABLE UNDER THIS AGREEMENT (CALCULATED ON A PROPORTIONATE BASIS WHERE APPROPRIATE) FOR THE PERIOD DURING WHICH SUCH OUTAGE, FAILURE, INADEQUACY, MISTAKE, OMISSION, INTERRUPTION, DELAY, OR OTHER DEFECT OCCURRED, IRRESPECTIVE OF WHETHER SUCH LIABILITY ARISES IN WARRANTY, TORT, BREACH OF CONTRACT, OR OTHER FORM
OF ACTION AND IRRESPECTIVE OF WHETHER SUCH LIABILITY IS DUE TO NEGLIGENCE OR OTHER ACT OR FAILURE TO ACT BY BLUE ROOSTER TELECOM OR ITS AGENTS OR EMPLOYEES; PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL LIMIT OR BE CONSTRUED AS LIMITING ANY LIABILITY ARISING OUT BLUE ROOSTER TELECOM’S WILLFUL MISCONDUCT OR TO THE EXTENT, BUT ONLY TO THE EXTENT, SUCH LIMITATION IS UNLAWFUL OR OTHERWISE UNENFORCEABLE AS CONTRARY TO PUBLIC POLICY. IN NO EVENT SHALL BLUE ROOSTER TELECOM BE LIABLE FOR ANY OUTAGE, FAILURE, INADEQUACY, MISTAKE, OMISSION, INTERRUPTION, DELAY, OR OTHER DEFECT CAUSED BY CUSTOMER OR BY
FACILITIES OR EQUIPMENT PROVIDED BY CUSTOMER OR OTHER COMMUNICATIONS CARRIERS. CUSTOMER SHALL INDEMNIFY BLUE ROOSTER TELECOM AND HOLD BLUE ROOSTER TELECOM HARMLESS AGAINST ALL LOSS, LIABILITY, DAMAGE, AND EXPENSE, INCLUDING REASONABLE ATTORNEYS FEES, DUE TO CLAIMS FOR LIBEL, SLANDER, INFRINGEMENT OF COPYRIGHT IN CONNECTION WITH MATERIAL TRANSMITTED OVER BLUE ROOSTER TELECOM’S FACILITIES, CLAIMS BY THIRD PARTIES FOR ANY LOSS, INJURY TO PERSON OR PROPERTY, LIABILITY, DAMAGE, OR OTHER HARM OF ANY NATURE ARISING OUT OF ANY OUTAGE, FAILURE, INADEQUACY, MISTAKE, OMISSION, INTERRUPTION, DELAY, OR OTHER DEFECT IN BLUE ROOSTER TELECOM’S PROVISION OF SERVICES OR FACILITIES OR TRANSMISSIONS OR ATTEMPTED TRANSMISSIONS OVER SUCH SERVICES OR FACILITIES, AND ANY OTHER CLAIMS ARISING OUT OF OR IN ANY WAY RELATING TO BLUE ROOSTER TELECOM’S PROVISION OF SERVICES AND FACILITIES UNDER THIS AGREEMENT, IRRESPECTIVE OF ANY NEGLIGENCE OR OTHER ACT OR FAILURE TO ACT ON THE PART OF BLUE ROOSTER TELECOM OR BLUE ROOSTER TELECOM’S AGENTS OR EMPLOYEES; PROVIDED THAT NOTHING HEREIN SHALL BE DEEMED TO REQUIRE CUSTOMER TO INDEMNIFY BLUE ROOSTER TELECOM FOR BLUE ROOSTER TELECOM’S WILLFUL MISCONDUCT OR TO THE EXTENT, BUT ONLY TO THE EXTENT, THAT SUCH INDEMNIFICATION OBLIGATION IS UNLAWFUL OR OTHERWISE UNENFORCEABLE AS CONTRARY TO PUBLIC POLICY.
All service is subject to the availability of suitable facilities. Blue Rooster Telecom reserves the right to limit the length of communications or to discontinue furnishing services when necessary because of the lack transmission medium capacity or because of any causes beyond its control. Service may be used to transmit communications of Customer in a manner consistent with the terms and conditions of this Agreement and the policies and regulations of the Federal Communications Commission and the California Public Utilities Commission. Service shall not be used for any unlawful purpose. Use of service is considered an order for such service. The foregoing limitations of liability and indemnification provisions of this Agreement shall survive any cancellation or other termination of this Agreement.
The provisions of this Agreement are severable, and in the event that any provision hereof is deemed to be unlawful or otherwise unenforceable, the other provisions shall remain in effect and shall continue to be enforced in order to fulfill the intent of the parties as the same is ascertainable from such remaining provisions.
This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes any prior agreements, understandings, representations, or proposals. This Agreement may not be amended in any way except by writing executed by both parties.
This Agreement may not be assigned except with the express written consent Blue Rooster Telecom, which may be granted or withheld at Blue Rooster Telecom’s sole discretion.
Any notices required by this Agreement shall be delivered as follows: if to Customer, written notice shall be delivered to Customer at Customer’s billing address and any permitted oral notice shall be given by telephone call to Customer at the main telephone number as identified in this Agreement; if to Blue Rooster Telecom, written notice shall be delivered Blue Rooster Telecom at PO Box 4959 San Luis Obispo, CA 93403 and any permitted oral notice shall be given by telephone call to Blue Rooster Telecom at 888-543-8701.