1.These High Speed Internet Service Terms and Conditions (this "Agreement") set forth additional, specific terms and conditions applicable to ACN's High Speed Internet Service ("HSI Service"). HSI Service may be offered in connection with any of the following primary services to which you subscribe (each, a "Primary Service"):
You ("you" or "Customer") are a customer of, and as used herein, "ACN" means ACN Communication Services, LLC. This Agreement is between you and ACN for HSI Service to which you subscribe and is incorporated by reference into the terms and conditions of your Primary Service, where applicable. You must enter into this Agreement by selecting the checkbox under terms and conditions and clicking the 'Continue' button during the online registration process in order to use the Service. If you do not affirmatively agree to be bound by the Agreement online by selecting the checkbox and clicking 'Continue' during registration, you will not be permitted to continue with the registration process. You understand that by selecting the terms and conditions box, or any button or link required during the sign-up process, you approve of the text preceding, as may be modified through online posting of such modifications on myacn.com from time to time, and are entering into a legally binding agreement with ACN under these terms. You hereby agree to the use of electronic communication in order to enter into contracts and to place orders, and agree to the electronic delivery of notices, policies and records of transactions initiated or completed with respect to the Service. You further waive any rights or requirements under any laws or regulations in any jurisdiction, to the extent permitted under applicable law, which require an original (i.e., non-electronic) signature or delivery or retention of non-electronic records.
If you are residing in a jurisdiction which restricts the use of Internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age and you are under such age limit, you may not enter into this Agreement or use the Service. Furthermore, if you are residing in a jurisdiction where it is forbidden by law to use the Service, you may not enter into this Agreement and you may not use the Service. By entering into this Agreement, you explicitly state that you have verified in your own jurisdiction that your use of the Service is allowed.
HSI Service is comprised of High Speed Internet access (and may be accompanied by certain basic telephone-based technical assistance. HSI Service is available to both residential and commercial customers. Your HSI Service is for residential use only if ordered in connection with DPS, LLD, or as standalone HSI. Your HSI Service is for commercial use only if ordered in connection with DigitalTalk or BA. In some circumstances, professional, on-site installation will be required but the HSI Service will generally be completed by Customer's own installation of software and completion of certain connections, including the appropriate modem. If professional, on-site installation is required then you may be charged a missed appointment fee of up to $100 if you fail to cancel or reschedule any set installation appointment at least 24 hours in advance by calling ACN customer care at 877-876-8767. Any equipment provided to the Customer in connection with the HSI Service may have been previously used but will have been certified by ACN as being equivalent in function and appearance to new units, all such equipment will belong to the Customer and will be deemed accepted by Customer upon delivery.
3. Service Conditions
The following conditions apply to the HSI Service. ACN may suspend, terminate, or limit use of your service if you violate any of these conditions.
3.1. Limits on Use
You agree to adhere to the HSI Service Acceptable Use Policy ("AUP") found here: https://www.myacn.com/acceptableuse_highspeed.html. The terms and conditions of the AUP are incorporated herein by reference. Not in limitation of the AUP, you also agree to the provisions of this Section 3.1. You agree not to use the HSI Service for high volume or excessive use (as determined by ACN), in a business or for any commercial purpose (if your Primary Service is a residential service), or in a way that impacts ACN's ability to provide services. If you have residential HSI Service, you will limit use to typical individual, family, or household use. You agree not to: (i) offer public information services (unlimited usage or otherwise), or (ii) permit more than one high-speed Internet log-on session to be active at one time. A log-on session represents an active connection in your location, a single unit within a multiple dwelling unit, or a single office within an office building or complex, to your modem and/or router to access the HSI Service. You may use your HSI Service for purposes of establishing a wireless fidelity ("Wi-Fi hotspot"), provided that you may not use a Wi-Fi hotspot in violation of this Agreement or in a way that circumvents ACN's ability to provide HSI Service to another customer. You may not use a Wi-Fi hotspot to provide HSI Service outside your location, single unit within a multiple dwelling unit, or single office within an office building or complex, and you may not resell HSI Service provided over a Wi-Fi hotspot or otherwise. If your HSI Service is residential, your Wi-Fi hotspot must be limited to your individual, family, or household use. If your HSI Service is commercial, your Wi-Fi hotspot must be limited to on-site use by you, your employees, your contractors, and your customers. You may not use more than one IP address for each log on session. HSI Service may only be used in the U.S. HSI Service may be used to host a server, personal or, if your HSI Service is commercial, commercial, as long as such server is used pursuant to the terms and conditions of this Agreement applicable to HSI Service and not for any malicious purposes. Malicious purposes include without limitation Spam, viruses, worms, Trojans, etc. Your use of the HSI Service may be restricted or interrupted without notice for: (i) maintenance activities; (ii) equipment, network, or facility upgrades or modifications; or (iii) to ensure the provision of acceptable service levels to all ACN customers. ACN is not responsible or liable for any Service deficiencies or interruptions caused by such events.
3.2. Monitoring and Testing the HSI Service
ACN may, but is not obligated to, monitor the HSI Service. You are responsible for monitoring your accounts for access to newsgroups and or websites that may contain improper material. You will notify ACN of the continual receipt of email that you view as illegal or that unsolicited. You must not design or provide systems used for the collection of information about others without their express knowledge and consent. ACN may also test HSI Service for maintenance purposes to detect and/or clear trouble.
HSI Service may be used in a wireless network environment at your own risk. Wireless networking devices use public radio channels to transmit voice and data communications. ACN cannot guarantee the security, privacy, or confidentiality of any transmissions made via such devices, and ACN makes no assurances or warranties relating to their use by you. You are responsible for all use of your HSI Service regardless of the source of a transmission, whether by you or an authorized or unauthorized third-party, over your HSI Service.
3.4. Data Management and Security
ACN STRONGLY RECOMMENDS USE OF COMMERCIAL ANTI-VIRUS AND FIREWALL SOFTWARE. You are responsible for the management and security of your data, including without limitation backing up and restoring your data, managing file and print sharing, implementing procedures for accuracy of data and its transmission and implementing security such as anti-virus and firewalls. ACN is not responsible or liable for the management or security of your data, including without limitation loss of your data or back-up restoration of your data regardless of whether your data is maintained on ACN servers or your computer or server.
3.5. Intellectual Property Rights
Unless otherwise expressly provided in this Agreement, all aspects of the HSI Service are the property of ACN or its providers and are protected by trademark, copyright or other intellectual property laws and international treaty provisions. ACN grants you a personal, revocable, limited, nonexclusive, nontransferable, non-assignable right and license to use the HSI Service in accordance with the terms and conditions of this Agreement. No other license or rights are granted by ACN or will be implied or arise by estoppel, with respect to any HSI Service.
3.6. ACN may offer email boxes for certain HSI Service packages. If any of your email boxes is deemed by ACN to be dormant, then ACN will suspend the email box. This means your email will be inaccessible. You may call ACN Customer Care to reactivate the email box. An email box is considered dormant if it has not been accessed within the last 90 days.
Once an email box has been suspended for 30 days and you have not contacted Customer Care to reactivate your email box, ACN will consider it to be abandoned. At this point, ACN will permanently delete the email box and all associated emails. You may contact Customer Care to establish a new email box if you so desire.
Availability of HSI Service is subject to various technical, geographic and "speed" (data transfer rate) restrictions and may not be available in all areas or at the rates or speed generally marketed. While the HSI Service works with all major PC operating systems, there are differing technical adjustments and preparations that you may need to make to your system in order to fully utilize the HSI Service. These technical modifications are discussed in more detail in the HSI Price Schedule and Technical Requirements on myacn.com and those materials delivered to each HSI Customer. The speed and availability of HSI Service are not guaranteed and may be limited by a variety of factors, including but not limited to the physical condition of your line and wiring at your location, your service location, phone line qualifications, computer performance/ configuration and network/internet congestion. In certain cases, as determined by ACN in its sole discretion, where you are not able to attain the requested data transfer rates, you may be provided the option of purchasing HSI Service at a lower data transfer rate or discontinuing the HSI Service. If you move to another location (including a move within the same building) you may not have access to HSI Service at your new location. You must be re-qualified for HSI service and different rates and/or charges may apply.
5. Ordering and Commencement of Service; Billing, Charges, and Payment
5.1 The provisioning of HSI Service will require actions on the part of both ACN and the Customer. The timing and completion of such provisioning will be carried out on a commercially reasonable basis. For self-installed HSI Service, HSI Service will be deemed to have commenced and billing will begin upon the earlier to occur of the following: (a) when ACN can verify that the Customer's circuit passes traffic or (b) (i) ACN has provisioned the network elements under its control, and (ii) at least five (5) days have elapsed since ACN has confirmed with the underlying service provider that Customer's HSI Service has been provisioned. If professional installation is required, then HSI Service will be deemed to have commenced and billing will begin upon completion of the professional installation. All orders requiring non-standard service are subject to acceptance by ACN. If Customer requests changes to the original order or has special requirements not communicated to ACN at the time of the original order and such changes or special requirements affect ACN's ability to meet its obligations under the original order, or require special invoicing or documentation support beyond standard ACN practices, then prices or the commencement date for HSI Service as specified by ACN with respect to the original order shall be subject to change.
5.2 Billing and Payment. You must establish a valid payment method (credit card or debit card number from Visa, MasterCard, American Express, Discover or any other issuer, or other payment provider, then-accepted by ACN ) when the HSI Service is activated. ACN reserves the right, in its sole discretion, to stop accepting credit cards as other payment methods from one or more issuers and/or payment providers. If your payment method becomes invalid for any reason, including without limitation if your card expires, you close your account, your billing address changes, or the card is cancelled and replaced owing to loss or theft, you must advise ACN promptly by either updating your payment information within the "Manage Bill Payments" section of your online account, contacting ACN Customer Care, or updating your funding source directly through your payment provider. Failure to maintain a valid payment method or to update your information could result in your HSI Service being suspended. Upon subscription of the HSI Service or when adding new HSI Service(s), ACN will charge you for the first month of HSI Service(s) upon activation and make necessary adjustments on the first or subsequent invoices, prorating the monthly charge(s) based on the actual bill cycle date of the HSI Service(s). ACN will bill all charges, including without limitation, applicable taxes and surcharges monthly in advance except for usage-based charges in arrears, and any other charges which ACN bills in arrears to your select payment method, including but not limited to: activation fees, monthly service fees, advanced feature charges, equipment purchases, disconnect fees and shipping and handling charges. Any usage-based charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found on ACN's website, myacn.com. The HSI Service is intended for typical residential usage. Non-typical usage may result in additional charges. ACN reserves the right to bill out of cycle for non-typical usage. You understand and agree that charges may vary month to month depending on usage, any applicable taxes and fees, and other amounts that become due from you to ACN. You understand that you have a right to receive notice of the amount and date of each payment due to ACN, but by your acceptance of these terms you hereby agree that you waive your right to such notice, and you agree that ACN is under no obligation to provide you with prior notice as to any charges.
5.3 Billing Disputes
You must notify ACN in writing within 7 days after receiving your credit card or other payment method statement if you dispute any ACN charges on that statement or such dispute will be deemed waived. Monthly bill itemization detail can be found at your Customer online account. You will not receive a separately itemized paper bill in the mail. Please visit http://www.acnservices.com/, click on Contact Customer Care, select the product, and then select Email Us!
ACN accepts payments only by credit card or debit card or other payment method acceptable to ACN as set forth in Section 5.2. The initial placement of your order by clicking the "Continue" button and accepting terms and conditions authorizes ACN to charge the credit or debit card account number or other payment method on file with ACN, including any changed information you have given ACN, if the card or other payment method expires or is replaced, or if you substitute a different card or payment method, for ACN charges as set forth in Section 5.2 for all amounts due from you to ACN. This authorization will remain valid until receipt by ACN and effectiveness of your written notice terminating ACN's authority to charge your payment method. Your written notice terminating ACN's authority to charge your payment method will become effective when ACN has received payment in full from you of all amounts due and owing in connection with your Service or any Device (including, if applicable, an Early Termination Fee and any costs for non-returned Devices). ACN may terminate your Service and this Agreement at any time in its sole discretion if you revoke ACN's authority to charge your payment method on file, if any charge to your credit or debit card or other payment method on file with ACN is declined or reversed, your credit or debit card or other payment method expires and you have not provided ACN with a valid replacement credit or debit card or other payment method or in case of any other non-payment of account charges. In connection with any termination, ACN may charge you for, without limitation, any unbilled usage or other amounts owed in connection with your HSI Service, applicable Early Termination Fee, and non-returned Device costs. Any termination of HSI Service leaves you FULLY LIABLE TO ACN FOR ALL CHARGES ACCRUED BEFORE OR IN CONNECTION WITH TERMINATION and for all costs incurred by ACN in collecting such amounts, such as (but not limited to) collection costs and attorneys' fees.
5.5 Termination/Discontinuance of HSI Service
ACN reserves the right to change, suspend or discontinue providing the HSI Service generally, or to terminate your HSI Service, at any time in its sole discretion. If your HSI Service is terminated for any stated reason, including without limitation violation of this Agreement, or because of any improper use of the Service (such as, but not limited to, your attempts to hack, disrupt, or misuse the HSI Service or your acts or omissions that violate any acceptable use policy of ACN or of a third-party provider to which ACN is subject), you will be responsible for, in addition to ACN 's other rights and remedies, the full month's charges to the end of the current term, including without limitation unbilled charges, plus the disconnect fee set forth in Section 5.2, all of which immediately become due and payable.
You are responsible for, and shall pay, any applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the HSI Service and Devices. Such amounts are in addition to payment for the HSI Service and will be billed to your credit or debit card or other payment method as set forth in this Agreement. If you are exempt from payment of such taxes, you must provide ACN with an original certificate that satisfies applicable legal requirement attesting to tax exempt status. Tax exemption will only apply from and after the date ACN receives such valid certificate.
5.7 Fees Associated with Collection of Outstanding Balance
If your HSI Service is canceled or suspended for any reason, you are still responsible for all the outstanding charges for that service, including payment of any bills that remain outstanding after that date of cancellation or suspension. In the event that ACN incurs any fees or expenses, including attorney's fees or collection agencies fees, collecting or attempting to collect, any charges owed ACN, ACN may collect from you all such fees and expenses reasonably incurred, including a Late Payment Fee on the unpaid charges.
5.8 Account Updater Service
ACN has implemented an "Account Updater Service" through a certified PCI compliant third party. The Account Updater Service allows ACN to obtain through a third party updated cardholder account information from participating card issuing banks. 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.
The following fees/surcharges may be imposed by ACN and are being specifically incorporated into this Agreement for additional clarification to you.
5.9.1 Network Access Surcharge. A surcharge is not a tax or charge required or assessed by any government. The amount may be found on the Support section of myacn.com and is subject to change from time to time without prior notice to you. This fee is used to offset costs incurred by ACN in expanding its network capacity to support the continued increase in customers’ average internet consumption.
6. Term and Cancellation of Service
6.1. Minimum Term Commitment
If your HSI Service is residential, the early termination fee is applicable if you cancel service prior to the end of your minimum term commitment. If your HSI Service is commercial, an early termination fee is applicable if you cancel service prior to the end of your minimum term commitment or any renewal term. If you established service after January 1, 2014, the minimum term commitment is: (a) 24 months if your HSI Service is residential or (b) 36 months if your HSI Service is commercial. The early termination fee is: (x) $240 and will decrement by $10.00 for each month that your HSI Service account remains in good standing during the minimum commitment term if your HSI Service is residential or (y) $360 and will decrement by $10.00 for each month that your HSI Service account remains in good standing during the minimum commitment term if your HSI Service is commercial. Notwithstanding the foregoing in this Section 6.1, if you established HSI Service prior to January 1, 2014, HSI Service is available for a minimum term and subject to an early termination fee specified in Addendum A below. After your minimum commitment term, the HSI Service will be continued on a month to month basis if your HSI Service is residential, or an annual basis if your HSI Service is commercial, in each case subject to the terms of this Agreement. If you are a commercial HSI Service customer and you cancel your HSI Service during but prior to the end of any annual renewal term, you will be responsible for payment of an early termination fee of $120, reduced by $10 for each month that your HSI Service account remains in good standing during the applicable renewal term. Customer may cancel any HSI Service upon thirty (30) days written notice to ACN but Customer shall be liable for all fees for the HSI Service up to the date of cancellation, and, in addition, any applicable early termination fee. Customer acknowledges that the early termination fee is a liquidated damage and not a penalty and that the fees for HSI Service would be substantially higher but for this provision. As stated in the Section titled "Billing and Payment", monthly recurring charges are charged in full as of the first day of a billing cycle and will not be prorated if service is disconnected prior to the end of that billing period.
6.2. Stand-alone HSI Service
If you have a bundled plan with HSI and your Primary Service, it is possible to terminate your Primary Service but not terminate your HSI Service at the same time if your overall account is in good standing. If your account is not in good standing and you terminate your Primary Service, your HSI Service will be deemed by ACN as terminated at the same time as your Primary Service. Any applicable early termination fee for HSI Service as described in this Agreement (in addition to any applicable early termination fee for your Primary Service) will apply. If your account is in good standing when you cancel your Primary Service, any applicable early termination fee for your Primary Service will apply and your HSI Service will remain in place; HOWEVER, your HSI Service will be converted to a Stand-Alone HSI Service. Stand-Alone HSI Service has a higher monthly recurring charge than HSI Service when bundled with Primary Service and such higher charge as in effect will apply to your HSI Service. All provisions in the Terms and Conditions of your Primary Service (including without limitation billing, dispute resolution and arbitration, class action waivers, indemnification, limitation of liability, governing law, and venue) shall remain in full force and effect following the termination of your Primary Service except those provisions related specifically to such cancelled phone service and not to your HSI (including without limitation emergency phone services (E911), unlimited calling plans, voicemail, caller ID, and telecommunications relay service).
You are deemed the owner of any device (including related equipment) purchased by you for use of the HSI Service and you bear all risk of loss of, theft of, or damage to the equipment, from the time it is received by you. Any replacement equipment will be charged to you at the then current price for such equipment. If no identical replacement device is available, ACN reserves the right to provide similar equipment at the same price. All device shipments are F.O.B. ACN's facility or the facility of any third party contracted to fulfill device orders. ACN's liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to Customer upon delivery to carrier. Customer will be provided with the device manufacturer's warranty from the date of purchase of the device. Customer may return any device within the manufacturer's warranty period at no cost other than Customer's shipping costs, provided that (i) Customer must first obtain a return materials authorization ("RMA") from ACN to return any device by calling ACN customer care at 877-226-1010, and (ii) such device must be returned to the location specified in the RMA in new condition in the original packaging or equivalent within twenty-one (21) calendar days of receipt of RMA shipping label and in no event later than the manufacturer's warranty period. ACN is not responsible for any late returns resulting from any Customer delay in obtaining a RMA or otherwise. Any returns not in compliance with (i) and (ii) above may be refused and shall be subject to restocking, non-returned device and/or refurbishment fees up to the full retail price of the device. Customer shall be responsible for all costs related to shipping to ACN any device that is being returned.
Use of the HSI Service may require or enable you to download or otherwise install or use certain software that is owned by ACN or by third parties (the "Software"). By installing the Software and using the HSI Services or using equipment with imbedded Software, you are agreeing to abide by all the terms and conditions of this Agreement that related to the Software , including without limitations the terms and conditions of this Section.
If the Software is accompanied by an end user license agreement (EULA), your use of the Software is governed by the terms of that agreement and by the terms of this Agreement where applicable. You must accept and agree to the terms of the EULA before installing the Software and using the HSI Service.
You may not modify the Software in any way or change or delete any notices of any kind that appear on or are used in connection with the Software or the HSI Service.
You acknowledge and agree that ACN or a third-party licensor or supplier of the Software, as applicable, owns all right, title and interest in the Software and related documentation.
The Software may only be used in the United States.
8.6. Updates, Upgrades or Changes
You agree to cooperate with ACN for any updates, upgrades or changes to the Software from time to time.
ACN may discontinue provision of the Software for any reason, including without limitation if ACN's agreement with a Software supplier is terminated. Upon ACN notice to you or discontinuance of your HSI Service, you must immediately stop using the Software, remove it from your computer and destroy any copies.
9. Warranty and Liability Limitations/Indemnification
9.1 Limitation of Liability
IN ADDITION TO THE DISCLAIMERS OF LIABILITY ELSEWHERE IN THIS AGREEMENT, IN NO EVENT SHALL ACN, ITS AFFILIATES, SUBSIDIARIES, PARENT COMPANIES, AGENTS, PARTNERS, SUPPLIERS, OFFICERS, DIRECTORS OR EMPLOYEES (COLLECTIVELY, "PROVIDER PARTIES") BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICE, AT ANY TIME OR FROM TIME TO TIME, OR ANY INTERRUPTION OR DEGRADATION OF SERVICE THAT IS CAUSED IN WHOLE OR IN PART BY ANY OF THE FOLLOWING: 1.) ACT OR OMISSION OF AN UNDERLYING SERVICE PROVIDER, VENDOR OR OTHER THIRD PARTY, INCLUDING BUT NOT LIMITED TO SUCH CARRIER, SERVICE PROVIDER, OR VENDOR’S UNDERLYING NETWORK MANAGEMENT PRACTICES; 2.) EQUIPMENT, NETWORK OR FACILITY FAILURE; 3.) EQUIPMENT, NETWORK OR FACILITY UPGRADE OR MODIFICATION; 4.) FORCE MAJEURE EVENTS SUCH AS (BUT NOT LIMITED TO) ACTS OF GOD; TERRORISM, STRIKES; FIRE; WAR; RIOT; GOVERNMENT ACTIONS; 5.) EQUIPMENT, NETWORK OR FACILITY SHORTAGE; 6.) EQUIPMENT OR FACILITY RELOCATION; 7.) SERVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER; 8.) OUTAGE OF CUSTOMER'S ISP OR BROADBAND SERVICE PROVIDER; 9.) ACT OR OMISSION OF CUSTOMER OR ANY PERSON USING THE SERVICE PROVIDED TO CUSTOMER; 10.) ANY OTHER CAUSE THAT IS BEYOND ACN'S CONTROL, INCLUDING WITHOUT LIMITATION A FAILURE OF OR DEFECT IN ANY SERVICE, THE FAILURE OF AN INCOMING OR OUTGOING COMMUNICATION, THE INABILITY OF COMMUNICATIONS TO BE CONNECTED OR COMPLETED, OR DEGRADATION OF QUALITY. ACN'S AGGREGATE LIABILITY FOR (I) ANY FAILURE OR MISTAKE; (II) ANY CLAIM WITH RESPECT TO ACN'S PERFORMANCE OR NONPERFORMANCE HEREUNDER OR (III) ANY ACN ACT OR OMISSION IN CONNECTION WITH THE SUBJECT MATTER HEREOF SHALL IN NO EVENT EXCEED SERVICE CHARGES WITH RESPECT TO THE SERVICE AFFECTED FOR AFFECTED TIME PERIOD. IN NO EVENT SHALL ANY PROVIDER PARTY BE LIABLE FOR ANY, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT, INFRINGEMENT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT ACN WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES. THIS SECTION 9.1 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
Customer agrees to defend, indemnify and hold harmless each Provider Party (and, at ACN's option, either defend ACN and/ or its service providers or pay ACN and/or its service providers cost of defense) from and against all claims, losses, damages, fines, liabilities, penalties, costs and expenses of any nature whatsoever ("Liability"), including reasonable attorneys' fees, related to or arising from: (a) the use of the Service by Customer or any User; (b) any violation of applicable laws, regulations or this Agreement by you or any User; (c) negligent acts, errors or omissions by you or any User; (d) injuries to or death of any person, and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, except to the extent that such liabilities arise from the gross negligence or willful misconduct of ACN; (e) claims for infringement of any intellectual property rights arising from your or any Users' use of the Service, Software, the Internet, Personal Data or Content (as defined in Section 13.2.1 below); (f ) claims arising from Content transmitted by or to you or Users; (g) the use of the Services with any interface devices not provided by ACN; or (h) the absence, failure or outage of the Service. This Section 9.2 shall survive termination of this Agreement.
9.3 Disclaimer of Warranties
9.3.1 You will receive the manufacturer’s warranty on any Device described in Section 7. This limited warranty does not apply to any defect or failure other than a manufacturing defect, and, without limiting the generality of the foregoing, does not apply to any defect caused by damage in transit, retailer handling or Customer handling. A Customer's sole remedy for any breach of this limited warranty is to obtain a repaired or replacement Device, by following the return procedures set forth in Section 7.
9.3.2 OTHER THAN WARRANTIES EXPRESSLY SET FORTH IN SECTION 9.3.1 ABOVE, THE SERVICE AND THE DEVICES ARE PROVIDED "AS IS" AND PROVIDER PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE OR THE DEVICE WILL MEET CUSTOMER'S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, PROVIDER PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICE OR THE DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION, OR THAT THE SERVICE OR DEVICE ARE FREE FROM ANY VIRUS OR OTHER CODE THAT IS CONTAMINATING, MALICIOUS OR DESTRUCTIVE BY NATURE. NONE OF THE PROVIDER PARTIES WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO ACN 'S OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S CONTENT, DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF ACN'S OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENT STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY ACN OR ACN'S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
10. DISPUTE RESOLUTION AND ARBITRATION.
PLEASE READ THIS SECTION OF THESE TERMS 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.
10.1 If you have a dispute arising from or relating to your Service, Device or invoice, or otherwise arising from or relating to this Agreement (a "Dispute"), please first call ACN Customer Care at 877-876-8767.
10.2 As evidenced by this Agreement, the Service is an interstate commerce transaction and this Section 10 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 and the Supplementary Procedures for Consumer Related Disputes (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.
10.3 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.
10.4 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.
10.5 In conducting the arbitration, and in making any award, the arbitrator will be bound by and must strictly enforce the terms of the Agreement, and will not expand, limit, or otherwise modify the terms of the Agreement. The arbitrator will not award damages that are not expressly authorized by the 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 the Agreement.
10.6 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.
10.7 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 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.
10.8 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.
10.9 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.
10.10 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 10, 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 10. THEREFORE, IF THE CLASS ARBITRATION WAIVER IS LIMITED, VOIDED, OR OTHERWISE FOUND UNENFORCEABLE, THEN THE ENTIRETY OF THIS DISPUTE RESOLUTION AND ARBITRATION SECTION 10 (but only the Dispute Resolution and Arbitration Section 10) SHALL BE NULL AND VOID AND IF YOU CHOOSE TO PROCEED WITH YOUR CLAIM YOU MUST DO SO IN COURT PURSUANT TO SECTION 13.4.
10.11 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.
11. 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.
12. 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.
13.1 No Third Party Beneficiaries
There are no third party beneficiaries to this Agreement. No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
13.2.1 You are responsible for any and all liability that may arise out of the content transmitted by or uploaded to you or Users using the Services ("Content"), including Family Plan customers. Customer hereby grants a non-exclusive, non-transferable, license to ACN and its third-party providers to use such Content, but solely in connection with and only for the term of the Service.
In the event of a conflict between this Agreement and any applicable tariff, the tariff shall prevail. In accordance with Section 13.9, ACN reserves the right to modify the Service at any time to reflect any change in any governing law, applicable tariff or underlying network service or component affecting the Service.
13.4 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 10 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. Subject to arbitration requirements in Section 10, for any court action in connection with this Agreement brought in a jurisdiction consistent with the foregoing sentence, ACN and you agree to submit to the personal and exclusive jurisdiction of such court and waive any objection as to venue or inconvenient forum. The failure of ACN or you to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. Except for billing disputes as provided for under Section 5.3 above, End User and ACN each agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
13.5 Entire Agreement
Your Agreement with ACN constitutes the entire Agreement between ACN and you and supersedes all prior agreements, representations, and understandings. This Agreement can only be amended by ACN, as provided in this Agreement. No written or verbal statement, advertisement, or product description will contradict, interpret, or supplement this Agreement. This agreement shall be binding upon the heirs, successors, and assigns of ACN and End User.
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.
13.7 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 the opening paragraph to this Agreement. 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. If you have any questions, complaints or claims regarding your Service, please contact ACN Customer Care at 877-876-8767.
The provisions of Sections 3.5, 5.2, 6.1, and 8 through 13 shall survive any termination of the Agreement.
13.10 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.
13.11 Force Majeure (Events Beyond our Control)
ACN shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties of ACN as may occur in spite of ACN's best efforts.
ADDENDUM A (Service Start Date Prior to January 1, 2014)
|Term Period||Original Term||Early Termination Fee|
|Markets served by Qwest for Residential||24 months||$200|
|Markets served by Verizon for Residential||12 months||$165 minus $13.75 for each complete month of HSI Service|
|Commercial HSI Service|
ADDENDUM B (Network Management and Performance Disclosures)
ACN, as a reseller of the HSI Service, does not perform any network management such as blocking, throttling, affiliated prioritization, paid prioritization, congestion management, rate controlling, or any other similar practices that may influence your access to lawful content or services or inhibit or favor certain applications or classes of applications, nor does ACN have reasonable access to certain performance characteristics of the HSI Service beyond what is disclosed on ACN’s website. Notwithstanding the foregoing, the underlying service provider may perform network management in accordance with the applicable service provider’s policies and business practices.
Revised June 8, 2018