Thank you for selecting ACN Communication Services, LLC ("ACN") as your service provider. This Business Advantage Service Agreement ("Agreement") contains the terms and conditions applicable to ACN's services, defined below, and governs the relationship between you and ACN. Your Agreement with ACN consists of this Agreement, information contained on ACN's website (including without limitation the Acceptable Use Policy), and the current terms of any optional calling plan, service, promotion, and/or authorized written communication you have received from ACN. If you also subscribe to ACN High Speed Internet Service ("HSI Service") in connection with your Business Advantage phone service, the High Speed Internet Terms and Conditions will apply and are incorporated by reference into this Agreement. The HSI Terms can be found here: https://www.myacn.com/internet/terms.html. For purposes of this Agreement, reference to "service" shall include HSI Service, if applicable, except to the extent the terms conflict with the HSI Terms (in which case the HSI Terms will control with respect to the HSI Service. This Agreement with ACN explains, among other things, the following:
BY ENROLLING IN, USING, OR PAYING FOR ACN'S SERVICES, YOU AGREE TO THE RATES, CHARGES, TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT USE ACN'S SERVICES, AND IMMEDIATELY CONTACT ACN CUSTOMER CARE. ACN WILL TERMINATE YOUR ABILITY TO MAKE CALLS USING OUR SERVICE; IT IS YOUR RESPONSIBILITY TO MAKE ARRANGEMENTS TO SWITCH TO A NEW TELECOMMUNICATIONS PROVIDER FOR CONTINUED TELECOMMUNICATIONS SERVICE.
For purposes of this Agreement, the terms "service" or "services" mean: ACN's state-to-state, international telecommunications, and/or Local services, as well as HSI Service. To the extent permitted by state law, this Agreement also covers ACN's intrastate (in-state) services, where the terms and conditions of this Agreement are not in conflict with applicable ACN tariffs filed with state regulatory agencies. The services covered in this Agreement are subject to availability and may not be available in all locations. For purposes of this Agreement, "you" means the customer, defined as either (i) the person identified in ACN's account records as responsible for payment of all charges; or (ii) any other person with actual or apparent authority to represent that person or to use the service(s). ACN will assume that any person able to provide your name, address, the last 4 digits of your social security number, and/or other information that is not publicly available is authorized by you to receive information about, and make changes to your account, including adding new services. If you have problems your service, call ACN Customer Care.
I. TERM, AUTO-RENEWAL AND CANCELLATION OF SERVICE
The Business Advantage Service shall begin on the date you complete your order by applying your digital signature on the Online Order Package and will continue for an initial three (3) year term ("Initial Term"). After the Initial Term, and each renewal term thereafter, the Business Advantage telephone Service will automatically renew for successive one year terms unless either party gives written notice to the other party at least sixty (60) days prior to the end of the then current term that the Agreement shall not renew. In the case of a cancellation prior to the expiration of the Initial Term, you shall be: (1) responsible for all applicable usage fees, prorated access charges, taxes, surcharges or other charges through the termination date; and (2) liable for all fees for the Business Advantage Service up to the date of cancellation, plus a $300 Early Termination Fee prorated according to the months remaining in the Initial Term at the time of termination, as described in the Online Order Package on ACN’s website, to which you agreed when you enrolled in the service. If you terminate during a renewal term, a $100 Early Termination Fee will be assessed. You acknowledge that this Early Termination Fee is a liquidated damage and not a penalty and that the fees for Business Advantage Service would be substantially higher but for this provision. This section is not intended to limit or replace the Early Termination Fees described in the HSI Terms which may be accessed through the following link: https://www.myacn.com/internet/terms.html.
II. CUSTOMER RESPONSIBILITIES
A. You are responsible for complying with the terms and conditions of this Agreement. You are responsible for assuring that all others using your service comply with the terms and conditions of this Agreement. You may not use ACN's services for any unlawful purpose.
B. You are responsible for and agree to pay all charges for services furnished to you by ACN. You are responsible for preventing unauthorized use of your services, and you are responsible for payment of any such unauthorized use. Your responsibility for payment is not affected by any use or misuse of your service by any third parties. In particular and without limitation, you are responsible for any and all charges incurred as a result of: (i) any delegation of authority resulting in the placement of calls using ACN services; (ii) any and all use of ACN services provided, including calls which you did not individually authorize; and (iii) any calls placed by or through your equipment via any remote access feature, whether or not you authorized activation of the feature.
C. You are responsible for paying all taxes and other surcharges billed in connection with your services. Unless you can adequately document to ACN's satisfaction that you are exempt, taxes and surcharges will be assessed in the amounts that federal, state or local authorities require ACN to bill you.
D. For ACN's Inside Wire Maintenance Service, ACN, or its subcontractors must have, at no charge to ACN, reasonable access to your premises and electrical outlets to diagnose and repair inside wiring problems. Inside wire repairs will not be performed if ACN determines that it is inadvisable to perform the work due to conditions at the customer premises that impede safe and or reasonable access to the repair area. ACN will try to schedule a mutually convenient appointment and requires that a person at least 18 years of age is present at the time of the scheduled appointment to authorize access to your premises as well as work to be performed.
III. CREDIT AND DEPOSIT INFORMATION
You give ACN permission to obtain your credit information from the consumer credit reporting agencies at any time. At ACN's sole discretion, ACN may require you to provide some form of security to obtain its services. Security may be provided in the form of a Pre-Authorized Payment (PAP), where a customer provides ACN written authorization to directly debit a credit card or checking account for charges incurred. Other forms of security may be accepted at ACN's sole discretion. ACN determines security requirements based on the following criteria:
New Applicants - If an applicant cannot provide evidence of a recent, satisfactory payment history with a telephone utility under the applicant's name, a security deposit may be required.
Existing Customers - An existing customer may be required to secure their account if they have been delinquent in payment of their account more than twice within a twelve month period or have been suspended or terminated for nonpayment once within a twelve month period.
Applicants for ACN service(s) may be subject to credit review, as allowed by law. By requesting that service be initiated, you authorize ACN to check credit scores, and to request from consumer reporting agencies information regarding employment, credit history, past addresses, and in the event it becomes necessary, to recheck such information. If you believe that ACN has reported inaccurate information to a consumer reporting agency, you may send us a written notice describing the specific inaccuracy. Depending upon the results of the investigation, ACN may/or may not request that said alleged inaccurate information be removed from your credit history.
IV. BILLING INFORMATION
ACN determines the design and the format of the bill. We will also determine the billing period. We may change both the format and the billing period from time to time and without notice to you to be effective after the date of the change. All charges, fees, taxes, and surcharges are billed in advance, meaning that these charges for services will normally be collected in advance of the of the billing period. When you initially subscribe to the service, ACN will charge you for the first month of service(s) and make any necessary adjustment on the first or subsequent invoice, prorating the monthly recurring charges based on the actual activation date. We will bill in arrears all usage-based charges and any other charges which we decide are due.
B. Usage Charges
Usage Charges for service are based upon the total time that you use ACN services, subject to applicable billing increments and any additional charges that may apply. Usage begins when the called party picks up the receiver, as determined by hardware answer supervision. Chargeable time ends when either party hangs up, thereby releasing the service connection. Each call completed will have an initial minimum charge of at least one minute, unless a different billing increment is specified in the rate plan, and any time beyond that will be billed in additional one minute increments, rounded up to the next whole minute, unless a different billing increment is specified in the rate plan (click here and select your specific state). Billing increments are determined by ACN. In addition, if the call charges include a fraction of a cent, the fraction is rounded up to the next whole cent. This Section IV(B) shall only apply to Business Advantage phone service and excludes HSI Service.
C. Return Checks
You will be charged up to a $25 returned check charge on all checks issued to ACN which are returned by your bank for non-sufficient funds. If the law of the state in which you receive service requires a different fee, ACN will charge you that amount. Checks returned by your bank will be charged electronically to your checking account through the ACH Network for the face value of the check and are subject to the additional returned check charge that will also be charged electronically to your checking account. At ACN's sole discretion, the returned check charge may be waived under appropriate circumstances (e.g. a bank error).
D. Billed Charges
Any objections to billed charges must be reported to ACN or its billing agent within twenty (20) days of the closing date printed on your billing invoice. Adjustments to your account shall be made to the extent that circumstances exist which reasonably indicate that such changes are appropriate.
E. Late Payment
A Late Payment Fee of up to $5 or 2%, whichever is greater, will be charged on any past due balance. If the law of the state in which you receive service requires a different fee, ACN will charge you that amount.
If ACN hires a collection agency to collect, or attempt to collect, any charges owed ACN, you will be liable to ACN for an additional payment equal to 35 percent of the charges owed, where permitted by applicable law. If ACN incurs any fees or expenses, including attorneys' fees, in collecting, or attempting to collect, any charges owed ACN other than by hiring a collection agency, you will be liable to ACN for the payment of all such fees and expenses reasonably incurred.
G. Account Changes
You must notify ACN of any change in your invoicing address, or if applicable, in the credit card or checking account used for payment, by calling or writing to ACN Customer Care. Please include your account number with any correspondence.
H. ACN Billing adjustments policy
If it is determined that you were overcharged for services, or billed for incorrect numbers dialed, appropriate credits shall be posted to your account. These credits are not redeemable for cash. If it is determined that you were undercharged for services, or that we failed to bill for service, you may be back-billed for the amount that was under billed. Service may be disconnected if you fail to pay charges arising from the under billing.
I. Complaint and dispute resolution
If you have questions or concerns about your bill from ACN, please call ACN Customer Care. ACN will not disconnect your service for failure to pay any disputed charges until we determine that the charges are considered accurate. You may file a complaint with the Public Utility or Service Commission about your bill, and if you do, we will not suspend or disconnect basic local telecommunications service for nonpayment of the disputed charge until a decision is rendered by the Public Utility or Service Commission. However, you are obligated to pay any undisputed portion of your bill in a timely manner and normal collection policies will apply to any undisputed amounts.
J. One-Time Payment on ACN Service Account Management
By selecting the One-Time Payment on www.myacn.com or your invoice remittance statement, you are authorizing ACN to deduct the specified amount entered from your Credit/Debit Card Account or Bank Account (as specified above) for charges on your ACN telecommunications bill. You confirm that you have signed up for ACN Service Account Management. You acknowledge that this payment may not avoid collection activity on your account. If your services have been or are scheduled to be turned off for non-payment, please contact ACN Customer Care immediately. By accepting this transaction, your payment will be processed immediately. Please allow 1-2 business days for the payment to show on your ACN online account. You will receive a notification that your payment has accepted. ACN does not charge you for making a one-time payment online at this time, however, you should check with your bank for any additional charges. You agree to notify ACN immediately if your email address, credit card, debit card or bank account information changes or the security of your Username or Password is compromised at any time. You have the right to reverse your one-time payment by contacting ACN Customer Care or your financial institution. You acknowledge that the origination of these charges to your ACN account must comply with U.S. law. You release ACN from any and all claims arising from One-Time Payment. All charges, terms and conditions are subject to change.
K. Stop Receiving Paper Bill
By selecting this option on www.myacn.com, you request that ACN stop mailing you a paper bill. The Stop Paper Bill option is only available for customers who have signed up for ACN Online Account Management. You understand if you choose the Stop Paper Bill option, in the future it is your responsibility to check the ACN Online Account Management website to obtain your bill. ACN will attempt to send a reminder email, but you understand that ACN does not control all aspects of email delivery, including your Internet Service Provider, and cannot assure timely delivery of the email reminder even if you have provided your current and correct email address. If enrollment in Stop Paper Bill is received, a confirmation by email will be sent to the email address as it exists on your online profile. By agreeing to suspension of mailed bills, you agree that posting of the bill on the website will constitute receipt by you of the bill for all purposes and that the bill is due and payable on the stated due date. ACN will send you a monthly email notification when your new bill is ready to be viewed online and provide a link to the ACN Online Account Management website. You further understand that ACN can only attempt to send the email reminder of your bill if it has a current correct email address for you and you agree to immediately provide ACN with any change in your email addresses. You are aware that if you do not check the ACN Online Account Management website in a timely manner for your bill or fail to pay your bill by the due date for any reason, collection actions may be initiated against your account; which may include past due collection notices and suspension of service to all phone numbers on the account. You may cancel the Stop Paper Bill option at no cost and again begin receiving a mailed paper bill but understand that there may be a delay of one or two billing cycles before you again receive a mailed paper bill. To cancel the Stop Paper Bill option and begin receiving a paper bill, you must select the Start Bill Option on www.myacn.com. You may provide email address updates at any time and at no charge. No additional messages will be sent to the old email address. The printed online bill remittance stub can be used in association with mailing a check for payments. Various other methods of payment as described on the ACN Service Account Manager website are also acceptable. Your obligation to pay the ACN phone bill by the due date is not altered or modified in any way by choosing Stop Paper Bill. Applicable late payment fees apply. Paperless billing is not available to all customers. Some states require mailing or delivery of paper bills. Customers in these states will continue to receive paper bills, even if they chose the online bills option. These customers may still view and print bills from the ACN website, but will continue to receive paper bills.
L. ACN Automatic Bill Payment
By completing and signing the Automatic Bill Payment section of the Letter of Agreement, or by selecting it on www.myacn.com, or by selecting the option on your invoice remittance statement, you are signing up for ACN Automatic Bill Payment for your ACN telecommunications bill. You confirm that you have signed up for ACN Online Account Management. You consent and permit ACN to charge to your Credit/Debit Card Account identified above or deduct from your bank account identified above, or any other account specified in the future, the amounts due from you for telecommunications and other services provided to you by ACN during the applicable billing cycle. Please allow 1-2 business days for your Automatic Bill Payment registration to become effective. Once Automatic Bill Payment takes effect, your full bill amount will be deducted from your bank account or charged to your Credit/Debit Card Account each month approximately 15 days after the bill date that appears on your bill. This may be earlier than the stated due date. If you have already sent a payment for your current bill, you may want to wait to sign up for Automatic Bill Payment until after your payment has cleared your bank to avoid a double payment. You will receive a notification each month stating that your bill is available for viewing and the total payment dollar amount due. The notification will also include a link to the login page for ACN Online Account Management. ACN does not charge for Automatic Bill Payment at this time, however, you should check with your bank for any additional charges. If you have a discrepancy with your bill, you should contact ACN Customer Care. You agree to notify ACN immediately if your email address, credit card, debit card or bank account information changes or the security of your Username or Password is compromised at any time. You will receive email notification if your payment was declined for any reason by your financial institution. You have the right to cancel Automatic Bill Payment calling by ACN Customer Care. Both your authorization and the ACN Automatic Bill Payment service will remain in effect until cancelled by you, your financial institution or ACN. Your financial institution or ACN may cancel Automatic Bill Payment for your ACN account at any time, with or without prior consent to you. You must notify ACN if your Credit/Debit card expires. Automatic payments cannot be processed if your Credit/Debit card has expired. You acknowledge that the origination of these charges to your account must comply with U.S. law. You release ACN from any and all claims arising from ACN Automatic Bill Payment. All charges, terms and conditions are subject to change.
M. Account Updater
ACN has implemented an "Account Updater Service" through a third party. The Account Updater Service allows ACN to obtain through a third party updated cardholder account information from participating card issuing banks, including but not limited to VISA and MasterCard. The Account Updater Service is designed to reduce card payment transaction declines due to outdated card information by automatically providing updated card information to ACN, allowing your subscription services to be provided without lapse. However, the Account Updater Service relies on the card issuers to provide updated information, and therefore may not work as intended if a card issuer does not participate or for any reason fails to provide updated information. You are automatically enrolled in the Account Updater Service by virtue of being an ACN customer, and you hereby agree and consent to your participation in the Account Updater Service. You agree and consent to ACN accessing and providing to third parties any account information necessary for use of the Account Updater Service. If you want to opt out of the Account Updater Service, meaning that your card issuer will not automatically provide your updated card information for use in the Account Updater Service, you must do so through your card issuer directly.
V. CHANGES TO SERVICE BY ACN
A. ACN may change the rates, charges, terms and conditions of your service from time to time. ACN also reserves the right to discontinue certain services. Any such changes will be posted on ACN's website and/or by direct customer notification prior to the effective date of the change, and any such future changes are hereby incorporated by reference into this Agreement. ACN may decrease the rates and charges for its services without any advance notice.
VI. CANCELLATION OF SERVICE
A. You may cancel any or all services provided by ACN by contacting ACN Customer Care verbally or in writing at any time. As stated in Section IV(A) monthly recurring charges are charged in full as of the first day of a billing cycle and will not be pro-rated if service is disconnected prior to the end of that billing period. Additionally, you will be responsible for any usage-based charges and any applicable termination fees that may apply to any services cancelled. In the event you execute an agreement with a term commitment with ACN, you must cancel the service and terminate that agreement in accordance with its terms.
B. Upon five (5) days written notice to you, ACN may terminate your service for: (i) nonpayment of undisputed charges, including late fees and other charges; (ii) noncompliance with or violation of any State, municipal, or Federal law, ordinance or regulation pertaining to telephone service; or (iii) non-compliance with or violation of the terms and conditions of this Agreement. ACN SHALL NOT INCUR ANY LIABILITY FOR DAMAGES DUE TO YOUR LOSS OF TELEPHONE OR HSI SERVICE AND IN NO CASE SHALL BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
C. ACN may refuse or discontinue your service without prior notice: (i) in the event that you, or any authorized or unauthorized users, use ACN's services in such a manner as to adversely affect ACN's service to others; (ii) in the event of tampering with the services of ACN; (iii) in the event of fraudulent use of service (whenever service is discontinued for fraudulent use of service, ACN may, before restoring service, require you to pay an amount reasonably estimated as the loss in revenues resulting from such fraudulent use); (iv) by reason of any order or decision of a court or other government authority having jurisdiction that prohibits ACN from furnishing such services; and (v) any violation, as determined by ACN in its sole discretion, of ACN's Acceptable Use Policy.
D. If your service is canceled or suspended for any reason, you are still responsible for all outstanding charges for that service, including payment of any bills that remain outstanding after the date of cancellation or suspension. In the event that ACN incurs any fees or expenses, including attorney's fees, collecting or attempting to collect, any charges owed to ACN, ACN may collect from you all such fees and expenses reasonably incurred, including a Late Payment Fee on the unpaid charges.
E. ACN reserves the right to discontinue service, without prior notice, when necessitated by conditions beyond its control.
F. ACN may disconnect services for non-payment or failure to maintain required security. Local Service will not be suspended or disconnected for non-payment of non-basic charges. ACN may require reactivation charges to reestablish service after suspension or disconnection. Upon disconnection, you are responsible for paying all amounts and charges that you owe.
G. ACN will not disconnect services on Saturday, Sunday, a public holiday or any day on which its main offices are not open for business. ACN will not disconnect services for residential customers that have provided sufficient documentation related to medical conditions and/or disabilities. Such conditions must be certified by a doctor or medical health board in writing, describing the condition and the direct negative impact that loss of ACN services would cause.
VII. BLOCKING OF SERVICE
A. ACN may, without prior notice, and consistent with applicable laws or regulations, block traffic to or from specific countries, cities, or NPA/NXX codes when ACN deems it necessary to take such blocking action to prevent: (i) the unlawful use of its services; (ii) the use of service in violation of this Agreement; (iii) nonpayment for service; or (iv) network blockage or degradation of service to ACN's customers. Service will be restored as soon as it can be provided without undue risk to ACN and/or its customers.
B. ACN reserves the right to block, without notice, and without liability, any calling card code that ACN reasonably believes has been used for fraudulent purposes. ACN may also intercept calling card calls for the purposes of verifying customer information and avoiding fraud. ACN will unblock the calling card, or issue a new calling card upon request by an affected customer, as soon as ACN determines it can reasonably do so without undue risk.
VIII. Unlimited Calling Plans
A. Where the service you receive includes a plan with "unlimited" calling, the following limitations apply:
(i) for ACN Business Advantage or other "unlimited" commercial calling plans, local commercial calling plans, also incorporate Unlimited Calling; certain applications such as call centers, auto-dialing, broadcast fax, data transmission, or other large volume calling software are prohibited.
(ii) ACN reserves the sole right to apply an additional "high-usage" fee to, to disconnect, or to switch to another plan, any user who abuses the Acceptable Usage Policy described below.
B. Acceptable Usage Policy
Unlimited Calling is not available to business customers with excessive call behavior, limit to an average of 1,000 minutes per line, per account, per month. By using Unlimited Calling, you agree to comply with this Usage Policy. When ACN becomes aware of an alleged violation of its Acceptable Usage Policy, ACN will conduct an internal investigation. During the investigation ACN may restrict the Customer's access in order to prevent further possible unauthorized activity. Depending on the severity of the violation, ACN may, at its sole discretion, restrict, suspend, terminate the Customer's service, or move your account to a metered package. If ACN moves your account to a metered package, you have up to sixty (60) days from notification of such move to terminate your existing agreement. Failure to provide notice pursuant to Section XIII(H) within sixty (60) days shall be deemed your acceptance of your account moving to a metered package. ACN does not issue service credits for any outages incurred through service disablement resulting from Usage Policy violations nor does ACN accept any responsibility and/or liability with respect to any damages whatsoever incurred due to a violation of this Usage Policy. Nothing contained in this Section VIII(B) shall alter the effect of the High Speed Internet AUP, which shall apply to your HSI Service, and can be found at the following link: https://www.myacn.com/internet/terms.html.
IX. INSIDE WIRE MAINTENANCE TERMS AND CONDITIONS
A. Description of Services
ACN's Inside Wire Maintenance Plan is an optional service that can be purchased for each local phone line, where available, to protect ACN customers from unexpected charges associated with wiring and phone jack repairs within the customer premises. Coverage under the Inside Wire Maintenance Plan is limited to 3 site visits every 12 months by ACN (or subcontracted) technicians to the customer premises to perform covered repair work. Additional repair work authorized by the customer will be billed to the customer at the applicable hourly repair and site visit rates.
(i) During standard business hours (8AM-5PM local time, M-F), the cost of the Initial Visit is $200, which covers up to 1.5 hours. Each additional hour will be billed at $120.
(ii) During non-standard business hours (5:01PM-7:59AM local time, M-F), the cost of the Initial Visit is $300, which covers up to 1.5 hours. Each additional hour will be billed at $180.
B. Service Cancellation
Customers must provide at least 24 hours advance notice to avoid being billed a Service Call Charge. In addition, customers must be present for the appointment to allow the technician access to the equipment. If not, the customer will be responsible for paying a $100 Service Call Charge.
ACN may subcontract the performance of repair service to a third party. In such event the third party contractor may be the party to contact the customer with regard to scheduling and the nature of work to be performed and shall carry out the work on behalf of ACN.
D. Ordering Information
By selecting the Inside Wire Maintenance Plan option on your service order form or contacting Customer Care, you may order the Inside Wire Maintenance Plan option. Your payment of the Inside Wire Maintenance Plan charges on your next ACN bill constitutes additional evidence of your intent to add Inside Wire Maintenance Plan to your existing service.
E. Inside Wire Maintenance Plan Effective Date
The Inside Wire Maintenance Plan will be effective 30 days after the order date.
F. Conditions not covered by ACN's Inside Wire Maintenance Service:
To inform you of other company-affiliated products and services that may interest you, ACN may access information related to your account(s). It is ACN's policy not to sell or rent its personally identifiable customer information to unaffiliated companies or organizations. In the future, should ACN decide to sell or rent such information to those entities, we will provide notification and the opportunity for you to indicate that you would prefer ACN not to sell or rent such information about them to such third parties.
B. Customer Proprietary Network Information (CPNI)
To inform you of other ACN related products and services, ACN may access information related to your account(s). CPNI, or information such as the kind of services that you have, how you use them, and how they are billed may be accessed by ACN. Federal law restricts the use of CPNI for purposes other than providing service, without the customer's approval. If you do not want ACN to access and use CPNI (except as otherwise permitted by law), you must contact us in writing. Until you notify us otherwise, ACN understands that you have approved ACN's internal use of CPNI for purposes reasonably related to ACN's offering or provisioning of other services to you. This consent survives the termination of your Service and survives until you remove it. A denial of permission for ACN to use CPNI will not affect the provision of any service to which you are subscribing nor would there be any charge to you for such denial. Denial would not restrict ACN from contacting you for marketing purposes, but may limit ACN from tailoring specific products to suit your needs. If you contact ACN about any product or service, ACN retains the ability to access your CPNI to inform you about those products or services. ACN is not liable for any lack of privacy that may be experienced with regard to your service. By signing up for the service, you authorize ACN to monitor and record calls to ACN concerning your account or the service and you consent to the use of automatic dialing equipment in order to contact you. ACN has the right to intercept and disclose any transmissions over our facilities in order to protect our rights and/or property or pursuant to court order or subpoena.
C. Caller ID
Due to federal and state rules, your telephone number may be identified to a called party if that party has Caller ID capability. Specific instructions detailing how to prevent or allow your number to be displayed on a call can be found on the ACN public website. If your local telephone company is not ACN, then you should contact them for rate and other information about such services.
XI. LIMITATION OF LIABILITY, INDEMNIFICATION AND NO WARRANTY
A. ACN'S LIABILITY FOR DAMAGES ARISING OUT OF MISTAKES, INTERRUPTIONS, OMISSIONS, DELAYS, ERRORS, OR DEFECTS IN TRANSMISSION, WHICH OCCUR IN THE COURSE OF FURNISHING SERVICE, WILL BE LIMITED TO AN AMOUNT EQUIVALENT TO THE PROPORTIONATE CHARGE TO YOU, BUT IN NO EVENT SHALL EXCEED $100, FOR THE PERIOD DURING WHICH THE FAULTS IN TRANSMISSION OCCUR.
B. ACN WILL NOT BE LIABLE FOR ANY CLAIM OR LOSS, EXPENSE OR DAMAGE (INCLUDING INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGE), FOR ANY INTERRUPTION, DELAY, ERROR, OMISSION, OR DEFECT IN ANY SERVICE PROVIDED, IF CAUSED BY ANY PERSON OR ENTITY OTHER THAN ACN, BY ANY MALFUNCTION OF ANY SERVICE OR FACILITY PROVIDED BY ANY OTHER CARRIER OR VENDOR, BY AN ACT OF GOD, NATURAL DISASTER, FIRE, WAR, CIVIL DISTURBANCE, OR ACT OF GOVERNMENT, OR BY ANY OTHER CAUSE BEYOND ACN'S DIRECT CONTROL.
C. ACN WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, INCLUDING LOST PROFITS, BY REASON OF ANY ACT OR OMISSION IN ACN'S PERFORMANCE UNDER THIS AGREEMENT. THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
D. ACN SHALL NOT BE LIABLE FOR ANY CLAIM, LOSS OR REFUND AS A RESULT OF LOSS OR THEFT OF PERSONAL IDENTIFICATION NUMBERS ISSUED FOR USE WITH ACN'S SERVICES.
E. With respect to any other factual allegation, legal claim, or dispute by you or by any others, for damages associated with the ordering (including the reservation of any specific number for use with a service), installation (including delays thereof), provision, termination, maintenance, repair, interruption, or restoration of any service or facilities offered by ACN, ACN'S LIABILITY, IF ANY, WILL BE LIMITED TO CREDIT ALLOWANCES FOR INTERRUPTIONS OF SERVICE AS REQUIRED BY LAW.
This service is offered solely and exclusively as an aid in handling assistance calls in connection with fire, police, and other emergencies. With respect to the routing of calls by ACN to public safety answering points or municipal emergency service providers, ACN is not responsible for any losses, claims, demands, suits or any liability whatsoever, whether suffered, made, instituted, or asserted by the customer or by any other party or person for any personal injury or death of any person or persons, and for any loss, damage or destruction of any property, whether owned by the Customer or others, caused or claimed to have been caused by: (1) mistakes, omissions, interruptions, delays, errors or other defects in the provision of service, or (2) installation, operation, failure to operate, maintenance, removal, presence, condition, locale or use of any equipment and facilities furnishing this service. Further, ACN is not responsible for any infringement, nor invasion of the right of privacy of any person or persons, caused by or claimed to have been caused directly or indirectly, by the installation, operation, failure to operate, maintenance, removal, presence, condition, occasion or use of emergency 911 service features and the associated equipment, or by any service furnished by ACN, including but not limited to, identification of the telephone number, address or name associated with the telephone used by the party or parties accessing E911 service, and which arise out of the negligence or other wrong wrongful act of the customer, ACN, its users, agencies or municipalities, or the employees or agents of any one of them. When a Customer with an unlisted or non-published telephone number places a call to the emergency 911 services, ACN will release the name and address of the calling party, where such information can be determined, to the appropriate local governmental authority responsible for emergency 911 services upon request of such governmental authority. By subscribing to ACN's service, the Customer agrees and acknowledges the release of the information described above.
G. Telecommunications Relay Service (TRS)
With respect to ACN's offering of TRS, any service provided by ACN that involves receiving, translating, transmitting, or delivering messages by telephone, text telephone, a Telecommunications Device for the Deaf, or any other instrument over the facilities of ACN or any connecting carriers, ACN's liability will not exceed an amount equal to ACN's charge for a one minute call to the called station at the time the affected call was made.
H. With respect to the provisioning of, or any error or omission in, data, information, or content furnished in connection with any service provided by ACN, ACN's liability, if any, is limited to the lesser of: (1). the amount of actual money damages proven by you to have been incurred as the proximate result of your reliance on such data, information, or content; or (2). $50.
I. ACN will not be liable for any act or omission of any other company or companies furnishing a portion of the service, or from any act or omission of a third party, including those vendors participating in ACN's offerings made to you, or for damages associated with service, channels, or equipment that it does not furnish, or for damages that result from the operation of customer provided systems, equipment, facilities, or services that are interconnected with ACN's services.
With respect to any other claim or suit by you or by any others, you agree to indemnify, defend, and hold harmless ACN against claims, losses or lawsuits arising from your use of ACN services, including: (i) allegations or claims of libel, slander, invasion of privacy, and/or infringement of copyright arising directly or indirectly from the material transmitted by use of ACN's services; and (ii) all other allegations or claims arising out of any act or omission by you in connection with ACN's services. Indemnification shall not apply to any such claims based on ACN's willful misconduct or gross negligence. This provision shall survive the termination of this Agreement.
K. No Warranties
ALL EQUIPMENT AND THE SERVICE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND. ACN DISCLAIMS ALL WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, AND NONINFRINGEMENT AND ANY IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. ACN DOES NOT WARRANT THAT THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE VIA THE SERVICE SHALL BE FREE OF ANY VIRUS, DISABLING CODE, WORMS, OR ANY OTHER HARMFUL COMPONENTS.
XII. DISPUTE RESOLUTION AND ARBITRATION
PLEASE READ THIS SECTION OF THE AGREEMENT CAREFULLY, AS IT PROVIDES FOR THE RESOLUTION OF MOST DISPUTES THROUGH BINDING ARBITRATION. YOU WILL CONTINUE TO HAVE CERTAIN RIGHTS TO SEEK RELIEF FROM AN APPROPRIATE GOVERNMENTAL REGULATORY AGENCY.
A. If you have a dispute covering your service, your invoice, or otherwise arising from or relating to this Agreement (a "Dispute"), please first call ACN Customer Care at 877-226-1010.
B. As evidenced by this Agreement, the Service is an interstate commerce transaction and this Section XII is therefore governed by the Federal Arbitration Act. All Disputes (in any case, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal or equitable theory) must be resolved by final and binding arbitration, pursuant to the Commercial Dispute Resolution Procedures (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as in effect at the time of the arbitration, and as modified herein. You may contact AAA in writing at one of its locations (e.g. The Rotunda, 4201 Congress Street, Suite 125, Charlotte, NC 28209). You may also obtain additional information about AAA and its procedures from AAA's website, at www.adr.org. Notwithstanding the foregoing, either you or ACN may bring an individual action against the other party in small claims court.
C. Prior to commencing an arbitration proceeding with the AAA, a party seeking to arbitrate any Dispute must send to the other party, via certified mail, a written Notice of Dispute ("Notice"). The Notice to ACN must be addressed to: ACN Customer Care, 1000 Progress Place, Concord, NC 28025-2449 ("Dispute Notice Address"). The Notice must (a) describe the nature and basis of the claim or Dispute; and (b) describe the specific relief sought. You and ACN each expressly agree to attempt to resolve any Dispute by first sending the Notice to the other party, prior to initiating or commencing an arbitration proceeding with the AAA.
D. If a Dispute is not satisfactorily resolved within sixty (60) days after the Notice is received, either party may then commence an arbitration proceeding with the AAA. Any Dispute must be brought within two (2) years after the date on which the basis for the Dispute first arises. Any arbitration proceeding shall be fully resolved within six (6) months from the date of commencement, unless otherwise agreed in writing.
E. The arbitration will be based only on written submissions of the parties, and the documents submitted to the AAA relating to the Dispute, unless either party requests that the arbitration be conducted pursuant to the AAA's in-person, telephonic, or on-line procedures. If the amount involved in the Dispute is less than $10,000, the arbitration will be conducted in the county of the last billing address of your Service. If the amount in dispute is $10,000 or more, the arbitration will be conducted in Charlotte, North Carolina. You have the right to be represented by an attorney in any arbitration.
F. In conducting the arbitration, and in making any award, the arbitrator will be bound by and must strictly enforce the terms of this Agreement, and will not expand, limit, or otherwise modify the terms of this Agreement. The arbitrator will not award damages that are not expressly authorized by this Agreement. The arbitrator will not have authority to award punitive or exemplary damages or attorneys' fees. You and ACN expressly waive any claims for an award of damages that are excluded under this Agreement.
G. You must pay the applicable AAA filing fee when you submit your written request for arbitration to the AAA. Unless otherwise provided for in the AAA rules, or in the arbitration award, all other administrative fees and expenses of an arbitration, including the fees and expenses of the arbitrator, will be divided equally between you and ACN. The prevailing party may seek to recover from the other party the AAA's fees and the expenses of the arbitrator. If you select an in-person, telephonic, or on-line arbitration process, you must pay your share of any higher administrative fees and costs for the process you select.
H. Unless applicable substantive law provides otherwise, each party will pay its own expenses to participate in the arbitration, including attorneys' fees and expenses for witnesses, document production, and evidence presentation.
I. All post-award proceedings will be governed by the Federal Arbitration Act. Any award may be confirmed and enforced in any court of competent jurisdiction. The arbitration will be confidential. Neither you nor ACN may disclose the existence, content, or results of the arbitration, except to confirm and enforce the award, or as may be required by law.
J. CLASS ARBITRATION WAIVER. Each Dispute will be resolved on an individual basis. YOU AND ACN SPECIFICALLY AGREE THAT YOU AND ACN MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A CLAIMANT OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. This Agreement does not allow class or collective arbitrations even if applicable AAA rules would. YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING ("Class Arbitration Waiver"). Notwithstanding anything else in this Dispute Resolution and Arbitration Section XII, the validity and effect of the Class Arbitration Waiver may be determined only by a court and not by an arbitrator. You and ACN acknowledge that the Class Arbitration Waiver is material and essential to the resolution of any Dispute and is nonseverable from this Dispute Resolution and Arbitration Section XII. THEREFORE, IF THE CLASS ARBITRATION WAIVER IS LIMITED, VOIDED, OR OTHERWISE FOUND UNENFORCEABLE, THEN THE ENTIRETY OF THIS DISPUTE RESOLUTION AND ARBITRATION SECTION XII (but only the Dispute Resolution and Arbitration Section XII) SHALL BE NULL AND VOID AND IF YOU CHOOSE TO PROCEED WITH YOUR CLAIM YOU MUST DO SO IN COURT PURSUANT TO SECTION XV(B).
K. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT.
XIII. CLASS ACTION WAIVER. In the event any claim proceeds in court rather than through arbitration, for any reason, both you and ACN agree that such Dispute will only be resolved on an individual basis ("Class Action Waiver"). YOU AND ACN SPECIFICALLY AGREE THAT YOU AND ACN MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
XIV. JURY TRIAL WAIVER. To the extent any claim proceeds in court rather than through arbitration, for any reason, if not prohibited by applicable law, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
A. Resale, Assignment and Transfer
You may not change any term of this Agreement. You may not resell any Service or transfer or assign this Agreement or the use of ACN service without the express prior written consent of ACN. All terms and conditions of service in this Agreement will apply to all such permitted assignees or transferees. Such transfer or assignment, when permitted, shall only apply where there is no interruption of the use or location of the service. ACN reserves the right, subject to any applicable law or regulation, to assign all or part of its rights and duties under this Agreement without notifying you. Upon such an assignment, ACN will have no further obligations to you. If subscriber is a business entity, ACN may rely on the creditworthiness of subscriber’s ownership before providing or continuing to provide any service. If subscriber’s ownership changes, Subscriber agrees to notify ACN within 5 business days and provide such information as ACN may request so that ACN may assess the creditworthiness of Subscriber’s new ownership. ACN reserves the right to suspend or terminate any service upon a change in ownership of Subscriber. Subscriber agrees that any such suspension or termination will have no effect on amounts owed by Subscriber to ACN in connection with the service and that ACN may immediately call any such amounts due. If ACN terminates service due to a creditworthiness concern or for any reason other than convenience following an ownership change, as determined by ACN, Subscriber agrees that any early termination fees for Subscriber’s early cancellation or termination of service, will still apply.
B. Governing Law/Venue
This Agreement is governed by the law of the State of North Carolina, without regard to its choice of law rules, except that the arbitration provisions of Section XII of this Agreement are governed by the Federal Arbitration Act. Unless otherwise agreed, court proceedings must be in North Carolina, provided that if you bring a small claims action you may do so in the jurisdiction of your billing address.
C. Entire Agreement
Your Agreement with ACN consists of this Business Advantage Service Agreement, information contained in the Online Order Package on ACN's website to which you agreed when you enrolled in the Service, and the current terms of any optional calling plan, promotion, and/or authorized written communication you have received from ACN. Your Agreement with ACN constitutes the entire Agreement between ACN and you and supersedes all prior agreements, representations, and understandings. No written or verbal statement, advertisement, or product description will contradict, interpret, or supplement this Agreement.
ACN reserves the right to make any amendments or adjustments it deems necessary to this Agreement without prior notice. Upon notification through ACN’s website (www.myacn.com), any such changes are incorporated as part of this Agreement. Any changes made to this Agreement by ACN may apply: (1) upon the day of execution or posting of amended Agreement on the ACN website, or (2) prospectively to some specified date in the amendment. No amendment shall apply retroactively from the date of the change.
E. Additional Pricing Terms and Customer’s Right to Terminate
If ACN increases rates (excluding taxes, fees and surcharges) under this Agreement or another existing agreement, you have up to sixty (60) days from notification of any rate increase to terminate your existing agreement, negotiate a new agreement, or accept the rate increase. Failure to provide such notice pursuant to Section XV(H), within such sixty (60) days shall be deemed your acceptance of the rate increase.
F. Local Service Freeze
In order to help prevent slamming, which is an unauthorized change in your local service from one local service provider to another, ACN offers at no charge, where available, and upon your express authorization, a Local Service Freeze. A freeze can help ensure that another telephone carrier cannot make a change to your selected local service provider without your permission. You may remove a freeze from your account at no charge any time by calling ACN at the telephone number specified in Section XVI for Business Local Services. This section only applies to your Business Advantage telephone service.
Each provision of this Agreement applies to the fullest extent permitted by applicable law. If any provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall remain valid and enforceable.
All notices required or permitted by this Agreement will be provided as follows. Notices from ACN to you will be sent to your last known address as reflected in the company records of ACN, and provided by one of the following methods: (i) by U.S. mail, postage prepaid; (ii) by a notation on, or an insert with, your billing invoice; or (iii) with your prior consent, by email. Notices from you to ACN that are required to be in writing shall be mailed to ACN Customer Care at the address specified in Section XVI. Written notifications shall be deemed given: (i) three (3) business days after deposit of the notice in the United States mail, postage prepaid; or (ii) on the same business day, if sent to you by email.
By enrolling in, using, or paying for ACN's services, you acknowledge, represent and warrant that you have the requisite authority to enter into this Agreement and to bind yourself to the terms contained herein.
ACN's services are provided without discrimination as to a customer's race, color, sex nationality, religion, marital status, income level, source of income, or from unreasonable discrimination on the basis of geographic location.
XVI. IMPORTANT CONTACT INFORMATION
Customer Service Numbers: ACN Residential and Business Long Distance: 877-226-1010 ACN Residential Local Services: 877-226-1010 Spanish speaking customers 877-226-1010 (Mon-Fri 9am-midnight). ACN Business Local Services: 877-226-1010 ACN Customer Care Mailing Address: 1000 Progress Place, Concord, NC 28025-2449 ACN Website: www.myacn.com NOTE TO MASSACHUSETTS CUSTOMERS: If you and every adult in your household are above 65+ years of age, you may be entitled to the Massachusetts' Department of Public Utilities "Elderly" status. If you do qualify for this status - ACN is required to contact the Massachusetts Department of Public Utilities before disconnecting your account. ACN annually reminds you of this benefit and you are required to respond back to ACN via the form provided annually, which identifies all adults and their corresponding ages living at your residence. ACN cannot classify you as "Elderly" status without receipt of this form. You may contact us to discuss this in more detail at: ACN Communication Services Attn: Customer Care 1000 Progress Place, Concord, NC 28025-2449 or by phone at 877-226-1010.
Revised July 3, 2014