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For the purposes of these Terms and Conditions of Service ("Terms and Conditions" or "Terms of Service"), "Service" or "Services" means the telecommunications services Yak provides to You, including, as the case may be, intrastate, interstate or international long distance voice services ("Yak Long Distance"), wireless long distance voice services ("yakCell"), calling card services ("yakCallingCard"), dial-around long distance voice services ("Yak Dial-Around") and other services that we may provide in the future.
"User" includes any person (including but not limited to You), firm, corporation
or other entity that utilizes the Service(s) or otherwise through Your codes, authorization
or other means of access to the Service. Derivative terms such as "Usage" and "Use"
will have corresponding meanings.
"Yak" means Yak Communications (America) Inc.
"You" means the subscriber. Derivative terms such as "Your" will have corresponding
meanings.
THE TERMS AND CONDITIONS MAY BE CHANGED AND UPDATED FROM TIME TO TIME BY YAK. YAK
WILL POST UPDATED TERMS AND CONDITIONS ON ITS WEBSITE (WWW.Yakamerica.COM) AND MAY
ADDITIONALLY GIVE YOU NOTICE OF ANY CHANGES BY LETTER OR IN YOUR MONTHLY BILL. YOUR
CONTINUED USE OF THE RELEVANT SERVICES THEREAFTER WILL BE DEEMED ACCEPTANCE BY YOU
OF SUCH CHANGES. PLEASE KEEP VISITING OUR WEB SITE FOR THE LATEST TERMS AND CONDITIONS.
THESE TERMS AND CONDITIONS INCORPORATE BY REFERENCE THE PRICES, CHARGES, TERMS AND
CONDITIONS INCLUDED IN ANY AND ALL TARIFFS AND/OR PRICE LISTS FILED WITH THE VARIOUS
STATE PUBLIC UTILITY REGULATORY AGENCIES AND/OR COMMISSIONS. CERTAIN STATE TARIFFS
MAY BE ACCESSED FROM OUR WEBSITE AT WWW.YAKAMERICA.COM.
YAK's PRIVACY POLICY IS INCORPORATED HEREIN BY REFERNCE AND FORMS AN INTEGRAL PART
OF THESE TERMS AND CONDITIONS. YOU CAN READ OUR PRIVACY POLICY AT WWW.YAKAMERICA.COM.
THESE TERMS AND CONDITIONS ONLY APPLY TO THE PROVISION OF SERVICES TO UNITED STATES
RESIDENTS.
BY ENROLLING IN, USING, OR PAYING FOR THE SERVICES, YOU AGREE TO THE PRICES, CHARGES, TERMS AND CONDITIONS IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE PRICES, CHARGES, TERMS AND CONDITIONS, DO NOT USE THE SERVICES, AND CANCEL THE SERVICES IMMEDIATELY BY CALLING YAK AT 1-866-434-7661 FOR FURTHER DIRECTIONS.
USE OF SERVICE
By subscribing to Yak's Services, You are agreeing to abide by these Terms and Conditions.
You agree that any Users will Use the Services only for lawful purposes. You agree
that before placing any order for yakLongDistance, You will have removed any "PIC
freeze" (i.e., additional precautionary
measures to prevent changing of Your long
distance provider) associated with Your name, telephone number or account. You also
acknowledge that due to regulatory orders and transition processes, there may be
a transition period between Your current service provider, if any, for the Service
in question, and the commencement of Your Services with Yak.
You acknowledge that Yak may terminate Service immediately, without any notice and without any liability to You whatsoever, if, at the sole discretion of Yak, You or any User misuses or permits others to misuse or abuse any Service for purposes that are contrary to law or contrary to these Terms and Conditions, or if Yak has to preserve the integrity of the network, or comply with laws or other regulatory orders or tariffs.
You are liable for any and all Use of the Services by any User, and You remain solely
responsible for all use of service ordered or billed to Your telephone number(s),
for determining who is authorized to use Your service, and for promptly notifying
Yak of any unauthorized use. You agree to indemnify and hold harmless Yak against
any and all fees, charges, damages, liability, costs and expenses (including reasonable
legal counsel fees, as applicable) associated with such Use.
Yak provides the Services to You as an independent contractor. The employees or
agents of other participating carriers are not and shall not be deemed to be agents
or employees of Yak. In subscribing for the Services, You obtain no proprietary
right or interest in any particular facility, service, equipment, telephone number
or code associated with the Services, and Yak makes no representation or warranty
that the Services are compatible with any particular facilities, equipment or other
infrastructure.
TERMINATION BY YAK
Yak may suspend or terminate Service, without any liability to You whatsoever, if
You (or other User, as may be applicable): fail to pay Your account that is past
due; fail to meet Yak's credit requirements; become bankrupt or otherwise insolvent;
harass, threaten or otherwise act unreasonably towards Yak, its employees or agents;
are in breach of these Terms and Conditions; Use the Services so as to prevent fair and proportionate use by others; Use the Services contrary to law, public policy
or decency standards (including but not limited to regulatory pronouncements on
issues such as Automatic Dialing-Announcing Devices and unsolicited live voice and
fax calls), or reasonable Usage policies instituted from time to time by Yak; charge
or allow others to charge any other person for the Use of the Service without Yak's
prior written agreement; alter or otherwise interfere with Yak's facilities, equipment,
network or connections or Use the Services in a prohibited, unlawful, or improper
manner, including but not limited to, permitting fraudulent use.
Prior to suspension or termination, Yak will make reasonable efforts to provide
You with advance notice, stating the reason for the proposed suspension or termination,
the amount owing (if any) and any notice period, determined in Yak's reasonable
discretion, during which You will have the opportunity to rectify the reason for
proposed suspension or termination.
You acknowledge and agree that termination or suspension does not remove Your responsibility to pay all fees owed by You to Yak up to the date of termination or suspension.
Notwithstanding anything contained herein to the contrary, Yak will not provide
notice of a proposed suspension or termination:
- where immediate action must be taken to protect Yak's facilities, equipment, network
or connections, to protect the safety or security of others (including protection
against abusive behavior), to stop the commission of any offence (including fraud),
or to ensure compliance with any law, court order or other legal requirement;
- where Yak reasonably believes that extreme circumstances exist, or that there is
an abnormal risk of loss involved in delaying the suspension or termination;
- in an emergency situation; or
- where Yak has made reasonable efforts to provide You with advance notice in accordance with the second paragraph above, but was unable to do so.
In the event of a suspension or termination of the Service, all features and services
will also be suspended or terminated. A suspension or termination will not affect
Your obligation to pay any amounts owed to Yak either during or after the suspension
or termination, including the full month's charges for the month where Your Service
is suspended or terminated.
If the Service is suspended or terminated for non-payment or otherwise for cause
relating to any of the reasons listed above, a reconnection service charge may be
applied for reconnecting the Service. Following a suspension or termination of Service,
Yak cannot guarantee the availability or resumption of any previous numbers, codes
or other identifiers that may have been applicable to You.
TERMINATION BY You
Yak permits You to terminate Your Service at any time by contacting Yak's Customer
Service at 1-866-434-7661 from 7:00 a.m. to 1:00 a.m. EST on Monday to Friday, and
9:00 a.m. to 9:00 p.m. on Saturday and Sunday. You will be charged the applicable
Usage charges applicable up to and including the effective date of cancellation,
recognizing that for certain Services (e.g., Yak Long Distance), there may be a
transition period before You are moved to another provider and You will therefore
continue to be liable for any Usage charges incurred during such period.
Fraud
You agree to notify Yak immediately, in writing or by calling Yak's Customer Service
at 1-866-434-7661, if You become aware at any time that Your Service (or any aspect of the
Service such as password, PIN or card number) is being or has been stolen or fraudulently,
improperly or unlawfully used. When You notify us, You must provide Your account
number and a detailed description of the nature of the fraudulent, improper or unlawful
Use of the Service. Failure to do so in a timely manner may result in the termination
of Your Service and additional charges to You. You will be liable for all Use of
the Services, irrespective of fraudulent, improper or unlawful use of the Services.
You are responsible for the security of Your authorization codes, passwords and
PIN numbers, if any, as well as any and all access to Your telephones, telecommunications,
Internet systems and Service.
CREDIT AND PERSONAL INFORMATION
You consent and agree that Yak has the right to and may check Your credit rating
from time to time, including in advance of initiating Service for You and by using
the social security number to be provided by You for that purpose. You consent to
the receipt and provision of account information from and to credit grantors and
credit bureaus, as well as collection agencies if and as required. You agree that, for Services other than Yak Dial-Around, You will give Yak prior written notice
of any changes to Your billing information, including but not limited to Your new
address, new contact information and any revised credit card or other authorized
payment mechanism information.
You also acknowledge and agree that due to a federal regulation requiring You to
provide a written authorization to verify Your desire to switch Your carrier for
the provision of certain Services, including interstate long distance, that compliance
with such requirements is a prerequisite to Yak's ability to provide such Services.
In the case of Yak, independent third party verification ("TPV") is provided through
VoiceLog, an authorized TPV vendor. Alternatively, You may also provide a written
letter of authorization directly to Yak.
Yak respects Your personal information and adheres to Yak's Privacy Policy. You
can read our Privacy Policy at WWW.YAKAMERICA.COM. Yak's privacy policy affirms
its commitment to maintain confidentiality, security, accuracy and privacy of customer
personal information that Yak collects and uses to provide Service. If You would
like to review the contents of Your personal file with Yak, please call our Customer
Service at 1-866-434-7661.
PROVISION OF SERVICE
The Service is only available where it is possible and commercially reasonable (in
the sole determination of Yak) to provide such Service. You acknowledge and agree
that Yak may conduct a preliminary check to determine if a Service is available
in Your area. In addition, Yak is not required to provide Service to You where:
1) Yak would have to incur unusual expenses which You will not pay; for example,
special construction; 2) You owe amounts to Yak that are past due other than as
a guarantor; 3) You do not provide credit information satisfactory to Yak or a reasonable
deposit, as requested by Yak from time to time and as determined, at least in part,
by Your Usage patterns and quantity. Where You have provided a deposit, simple interest,
based on the monthly savings account rate of The Sun Trust Bank, will be paid on
all sums retained on deposit.
SERVICE INTERRUPTION/MAINTENANCE
Yak may interrupt Your Service at any time for any duration of time, without any
notice or liability, in order to install, repair, replace or to perform necessary
maintenance on the telecommunications equipment, facilities or network, or for other
technical reasons as may be required.
Yak does not guarantee uninterrupted operation of Service, or of its equipment,
facilities, connections or network, or that there will not be delays, errors, defects
or failures associated with the Services
PAYMENT AND BILLING
You are responsible for payment to Yak of charges for all Services provided including
all calls originating from the customer’s premises and all calls charged to the
customer’s line where any person answering the customer’s line agrees to accept
such charge. You acknowledge that other than for Yak Dial-Around or yakLongDistance
LEC billing, Yak collects all charges pursuant to one of three options: (1) Autopay
- no paper invoice, Yak will debit Your credit card (limited to certain major cards)
22 days from date of invoice You can view or download online on demand; (2) Direct
Bill Plus - receive a monthly paper invoice and Yak will debit Your credit card
(limited to certain major cards) on the 22 days from date of invoice. Yak Dial-Around
is billed by Your local voice service carrier on Your local telephone bill according to the billing cycle and practices of that carrier. yakCell and yakCallingCard is
billed by preauthorized payment, whereby Yak will debit Your credit card (limited
to certain major cards) on the earlier of one established day per month or when
Your usage of yakCell or yakCallingCard reaches or exceeds $50 (before applicable
taxes and other fees). Your credit card may be debited earlier and more frequently
if Your account balance reaches $50 or more.
In the event Yak is unable to debit Your credit card or bank account, or otherwise
is not paid in respect of Your Use of Service, in addition to any other remedies
available to Yak, Yak will charge an administrative fee and late charges at a monthly
compounded rate of 1.5% (19.56% per annum). Yak will review any disputed charge,
provided You continue to pay the undisputed portion and subsequent invoices.
You acknowledge that Yak may not issue checks for refunds for any amounts lower
than ten dollars ($10.00). In the alternative, You agree that any refunds lower
than ten dollars ($10.00) will be credited against Your account or, at Yak's discretion,
may be subject to a reasonable processing fee to refund. Except in the case of deception,
You will not be responsible for paying a previously unbilled or under billed charge
that is billed more than one year following the end of the month in which such charge
was incurred. Improperly billed or over billed charges will be credited, provided
that You dispute such charges within 150 days of the date of the bill.
Usage charges for all YakLongDistance voice Services will be billed individually
in six second minimums and increments, other than: (i) calls to an international
destination which are subject to a thrity (30) second minimum chage,, (ii) yakCallingCard
and yakCell calls, for which calls will be billed in full minute minimums and increments
and (iv) Yak Dial Around calls, which will be billed in one minute increments. Any
fraction of an increment will be rounded to the next highest increment. Call timing
will be determined conclusively by Yak's network systems. Any fraction of an increment
will be treated as an entire increment. Usage charges are exclusive of applicable
taxes, regulatory-mandated fees and third party-controlled fees, including but not
limited to any sales, use, gross receipts, excise, access or other local, state
and federal taxes, charges or surcharges (however designated), Universal Service
Fund, Federal Excise Tax and, in the case of business lines, presubscribed interexchange
carrier (PICC) charges. Where Yak considers any additional fees charged to Yak by
Your local telephone company (so that Yak can provide long distance or other Services
to You) to be excessive, reasonable surcharges to Your rate structure may also apply.
You may request, and we will provide, an in-depth review of any disputed amount.
During the period that the disputed amount is under investigation, we will not pursue
any collection proceedings or assess late fees with regard to the disputed amount.
Billing inquiries may be directed to us through our toll free number, 1-866-434-7661.
OTHER APPLICABLE
FEES RELATING TO CERTAIN SERVICES
Please see Yak's web site at www.yakamerica.com or contact Yak Customer Service
as provided in these Terms and Conditions for updated rates, fees, pricing and features
applicable to any specific Service, including those described below.
YakLongDistance
- $1.99 monthly billing fee, except where You either sign up for electronic
billing (i.e., the Autopay option) or where Your Yak Long Distance bill for the
month in question is greater than or equal to $15.00 (before applicable taxes)
Yak Dial-Around
- $0.99 monthly billing fee is applied per account when services are used.
yakCallingCard
- Additional per call charges will apply for directory-assisted calls, calls originating from pay phones and calls originating outside of the continental United States.
yakCell
- yakCell may not be able to be utilized from Alaska, Hawaii and countries of American Commonwealth status (e.g., Puerto Rico and the Virgin Islands).
- To access yakCell (once subscribed), You must dial the applicable toll free access number from anywhere in the continental United States (including Alaska and Hawaii).
- Applicable cellular air time charges will continue to be invoiced by Your cellular service provider.
- yakCell can only be used to the extent that the "call block" or "don't show number/ID" feature on Your applicable handset can be and is deactivated.
Additional per minute surcharges may apply for all Yak long distance voice Services in respect of calls terminating on mobile phones in certain countries.
All of Yak's rates, fees, pricing and features are subject to change without notice. If You would like confirmation of such terms before Using a Service, please verify with Yak's web site at www.yakamerica.com, including making use of Yak's rate calculator. Alternatively, please contact Yak Customer Service using the contact information described in these Terms and Conditions. Yak seeks to provide twenty-four hour turnaround on e-mail inquiries (info@yakamerica.com). Customer Service faxes should be sent to 1-866-434-9773.
OTHER APPLICABLE FEES RELATING TO CERTAIN SERVICES
EXCEPT AS SPECIFICALLY PROVIDED IN THESE TERMS AND CONDITIONS, YAK MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND IN CONNECTION WITH ITS NETWORK, CONNECTIONS, EQUIPMENT, FACILITIES OR SERVICE, AS CONTEMPLATED HEREIN, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTY OF MERCHANTABILITY, THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ANY WARRANTIES OF TITLE AND NON-INFRINGEMENT, AND ALL SUCH REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND ARE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEREBY EXCLUDED.
THE PARTIES AGREE THAT YAK, ITS AFFILIATES AND EACH OF THEIR SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS,LICENSORS AND SUPPLIERS (COLLECTIVELY, THE "RELATED ENTITIES") SHALL IN NO EVENT BE LIABLE TO You OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, RELIANCE OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS, REVENUE OR USE OF DATA OF ANY KIND OR NATURE WHATSOEVER, REGARDLESS OF THE FORESEEABILITY THEREOF, ARISING OUT OF THE PROVISION OF SERVICE OR IN ANY WAY ARISING OUT OF THESE TERMS AND CONDITIONS AND ANY RELATED AGREEMENTS, WHETHER IN AN ACTION ARISING OUT OF BREACH OF CONTRACT, BREACH OF WARRANTY, DELAY, NEGLIGENCE, STRICT TORT LIABILITY, PATENT OR INTELLECTUAL PROPERTY MATTERS OR ANY OTHER LEGAL OR EQUITABLE THEORY. HOWEVER, IN THE EVENT A COURT OF COMPETENT JURISDICTION FINDS YAK OR ANY RELATED ENTITY LIABLE, Your EXCLUSIVE REMEDY AND YAK'S SOLE LIABILITY FOR DAMAGES TO You FOR ANY CAUSE WHATSOEVER REGARDLESS OF FORM OF ACTION, INCLUDING NEGLIGENCE, SHALL BE FOR DIRECT DAMAGES ONLY AND, EXCEPT IN THE CASE OF DEATH, BODILY INJURY AND PHYSICAL DAMAGE TO PROPERTY, WHOLLY CAUSED BY YAK'S NEGLIGENCE, SHALL NOT EXCEED AN AMOUNT EQUIVALENT TO THE ORDINARY PRICE OF THE RELEVANT SERVICE PURCHASED FOR ONE (1) MONTH (TO BE DETERMINED AS AN AVERAGE OF BILLINGS IN RESPECT OF SUCH SERVICE OVER THE CLOSEST PREVIOUS THREE MONTHS IN WHICH THERE WERE NO SUCH PROBLEMS OR DEFECTS IN THE SERVICE). NO ACTION OR PROCEEDING AGAINST YAK MAY BE COMMENCED MORE THAN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO SUCH CLAIM. THE PROVISIONS OF THIS SECTION SHALL SURVIVE TERMINATION OF THESE TERMS AND CONDITIONS.
YAK IS NOT AN OPERATOR SERVICE PROVIDER AND AS SUCH DOES NOT HANDLE EMERGENCY CALLS. YAK IS NOT LIABLE IN ANY WAY FOR ANY CALL TO AN EMERGENCY PROVIDER OR THE FAILURE TO CONNECT TO SUCH PROVIDER OR ANY ACTION THAT OCCURS OR FAILS TO OCCUR AS A RESULT THEREOF.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Yak is not liable for:
- Any act or omission of any third party (including any other local telephone
company, any connecting carrier or underlying carrier or other provider of connections,
facilities, or service)
- A User's conduct, acts or omissions, or the operation or failure of Your
equipment or facilities
- Any event beyond the reasonable control of Yak including any Force Majeure,
as defined below; or
- Its failure, for any reason, to activate or have readily available Service
on the activation or Usage date requested by or conveyed to or by You.
OTHER INDEMNIFICATION
IN ADDITION TO ANY OTHER INDEMNITIES IN THESE TERMS AND CONDITIONS, You AGREE
TO INDEMNIFY, DEFEND AND HOLD HARMLESS YAK, ITS AFFILIATES, AND EACH OF THEIR SHAREHOLDERS,
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, LICENSORS AND SUPPLIERS FROM
AND AGAINST ALL CLAIMS, LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE
LEGAL FEES, RESULTING FROM ANY ACTION, INACTION OR BREACH OF THESE TERMS AND CONDITIONS
BY You OR OTHER USERS. THE PROVISIONS OF THIS SECTION SHALL SURVIVE TERMINATION
OF THESE TERMS AND CONDITIONS.
YAK INTELLECTUAL PROPERTY
Yak or its affiliates or licensors, as the case may be, are the exclusive owners
of all names, trade-marks, trade names, service marks and any copyright material
relating to the Services ("Intellectual Property"). Nothing in these Terms and Conditions
contemplates or creates permission for use of Intellectual Property for any marketing
or advertisement by You or a transfer of license of Intellectual Property from Yak
to You.
FORCE MAJEURE
Other than with respect to payment, Your and Yak's obligations pursuant
to these Terms and Conditions will be suspended, pending resolution of any cause,
event or proceeding reasonably outside of their control, including but not limited
to acts of God, inclement weather including but not limited to lightning, labour
disputes, riots or civil disputes, war or armed conflict, any law, governmental
order, decision or regulation, or order of any court of competent jurisdiction (each
a "Force Majeure"), provided You or Yak, as the case may be, pursue remediation
of such impediment to the maximum extent possible with reasonable dispatch and effort.
CHANGES, MODIFICATIONS AND TERMINATION
OF PLANS OR PLAN FEATURES
Without incurring liability, Yak may at any time and without notice to
You, change, modify or terminate any Service, plan or Service or plan features,
in whole or in part (including the rates or charges for all customers who at such
time are not subject to a future term commitment). In the event of any such change
or modification, You will be responsible for paying all charges incurred for Use
of such Service including any charges arising out of the change or modification.
In the event of a termination of a Service, plan or Service or plan feature by Yak,
You will be responsible for paying all charges incurred up to the applicable termination
date.
NOTICES AND OTHER COMMUNICATIONS
Any notice or other communication will be in writing and will be provided by
personal delivery, email or by facsimile to Yak or You as applicable, at the email
address, regular address or facsimile number as set forth in Your service order(s).
Notices delivered in person will be effective on the date of such delivery. Notices
delivered by email or facsimile will be effective on the date of transmission, provided
printed proof of transmission is obtained. Notwithstanding the foregoing, Yak may
amend these Terms and Conditions, including with respect to any Service, plan or
Service or plan feature as described in the paragraph above, from time to time as
stated herein, and notice will be effective by virtue of Yak posting such revised
Terms and Conditions on its website.
ASSIGNMENT
Yak may assign all or part of its rights or duties under these Terms and Conditions
without notifying You. You may not assign, lease, resell or transfer the Services
to a third party without the prior written consent of Yak. Yak reserves the right
to terminate the Services and the Use of the Service, without any liability to You
whatsoever, in the event that You assign, lease, resell or transfer Services to
a third party without the prior written consent of Yak.
NO WAIVER
The provisions of these Terms and Conditions may only be waived in writing.
No failure by Yak to insist upon Your performance of any obligation in these Terms
and Conditions will constitute a waiver of the obligation.
SEVERABILITY
The invalidity, illegality or unenforceability of any one or more provisions
of these Terms and Conditions will not impair any other provision in these Terms
and Conditions.
LANGUAGE
You confirm that You accept these Terms and Conditions, as well as all
other related documents, including notices, in English only.
JURISDICTION
This Agreement shall be construed under the laws of Florida, without regard
to its choice of law rules, except for the arbitration provision contained in these
Terms and Conditions, which will be governed by the Federal Arbitration Act. This
governing law provision applies no matter where You reside, or where You use or
pay for the Services.
ARBITRATION
All claims arising as a result of Your use of the Services or any other
transaction between You and Yak or any of Yak's affiliates or agents shall be resolved
by arbitration in Miami, Florida in accordance with the then current rules of the
American Arbitration Association. The laws of the state of Florida (other than conflicts
of laws rules) shall apply. The arbitration shall be conducted by a single arbitrator
engaged in the practice of law. The arbitrator's decision and award shall be final
and binding and may be entered in any court with jurisdiction.
STATE TARIFFS, PRICE LIST AND
RULES
For intrastate services for which there is specific language in the state
tariffs, price lists or state rules that conflict with these Terms and Conditions,
the state tariff, price list or rules apply.
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