First, and more generally, occurrences of "should" should be converted to "must" so that they are obligatory (e.g., "A P/P service provider must notify the
requestor upon becoming aware that delivery of the original form of electronic communication has failed.)
Second, the second bullet under the Relay category appears to address scenarios where a number of delivery failures occur within a specified time period. A
Customer is required by the terms of the Provider/Customer agreement to provide an accurate e-mail address where he/she can be contacted. Certainly we can all agree that the Customer's failure
to do so cannot be attributed to a third-party. The Customer is in the best position to know his or her contact information and to notify the Provider if there were any changes to it. The Customer
also is or must be responsible for ensuring that he/she is contactable at the email address he/she provided. So costs to attempt to reach the Customer via a "further form of notice" due to repeated delivery
failure should not be attributed to a Requestor, but to the Customer. The provision should therefore specify that any reasonable fee accrued by the Provider as a result of having to use an alternative method to contact the Customer in the event of a persistent
delivery failure is to be borne by the Customer.
Additionally, it is our understanding that a failure of the Customer to provide the Provider an accurate e-mail address would violate the terms of the Provider/Customer agreement, which
is a ground for the Provider to terminate the Service. In the alternative to passing the "further form of notice" fee on to the Customer, the Provider could exercise the
option to terminate the Service.
Just some initial thoughts. Looking forward to hearing your views.
Best,
Val
Valeriya Sherman
Silverberg, Goldman & Bikoff, L.L.P.
1101 30th Street, N.W.
Suite 120
Washington, D.C. 20007
Tel 202.944.3300
Cell 303.589.7477
vsherman@sgbdc.com