ACI Solutions (ACI) reserves the right to remove any content posted to its system that it deems offensive, inappropriate, or that violates any of its policies. It also reserves the right to suspend or cancel your account for engaging in inappropriate conduct or for violating the following Acceptable Use Policy. You remain legally responsible for your own conduct and the conduct of those whom you have permitted to use our services.

Any use of ACI’s resources that disrupts the normal use of the system for others is deemed unacceptable. Accordingly, you shall accept the following restrictions for your employees or authorized users. As a customer, you agree to not use or allow others to use access to the Internet in the following manner:

  • For illegal purposes;
  • To copy or transmit any material that violates any federal law, state law, or local regulation which may include (but is not limited to) copyrighted material, threatening, obscene, libelous, harassing, or defamatory material, or material protected by trade secret laws;
  • To transmit content that is legally obscene or violates child pornography statutes or contains graphic visual depictions of sexual acts, visual depictions of sexually explicit conduct involving children, or depictions of children, the primary appeal of which is prurient;
  • To transmit any other sexually oriented material that, in the specific context, is offensive or inappropriate;
  • To interfere with or to disrupt network user, services or equipment (disruptions include, but are not limited to, distribution of unsolicited advertising, propagation of computer viruses or worms, and using the network to make unauthorized entry to any other machine accessible via the network);
  • To send unsolicited e-mail messages, including, without limitation, commercial advertising and information announcements;
  • To use another site’s mail server to relay mail without the express permission of the site;
  • To post the same or similar message to one or more newsgroups (excessive cross-posting or multiple-posting, also known as SPAM);
  • To alter, modify, or tamper with the IP address or those of any other person;
  • To forge any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting;
  • To engage in conduct which interferes with ACI’s ability to provide service or interferes with the rights of others including, but not limited to hacking, circumvention of user authentication or security of any host, network, or account (cracking), “denial of service” attacks (port scans, “flooding” of networks, deliberate overload attempts, etc.), libel, invasion of privacy, consumer fraud, unauthorized dissemination of trade secrets, violation of trademark laws;
  • To perform the unauthorized monitoring of data or traffic on any network or system without the express authorization of the owner of the system or network;
  • To scan or probe the security of the network for any purpose whatsoever by the use of packet sniffers, siphons, decoders, analyzers, password gathers, Satan, etc.

ACI reserves the right to change this Acceptable Use Policy from time to time. Any changes will be posted on its web site, sent to you via e-mail or sent to you via U.S. Mail.

Complaints may be sent to abuse@acisolutions.net

1. General

a. By using ACI Solutions’ (ACI) service you agree to the terms and conditions in this Terms and Conditions agreement. The terms “customer,” “you” or “your” refers to you, your employees and those you have authorized to use the service provided by ACI.

b. This agreement contains the terms and conditions that apply to your use of ACI’s IP Intranet, Internet access and Voice over Internet Protocol (VoIP) services and products. No representation, warranty, term or condition, other than as specifically set forth in this agreement or the service order, shall be binding on ACI.

c. This agreement shall be in effect during any period you use ACI service. The initial term for each service provided to you by ACI shall be specified on the service order for the service. Upon expiration of the initial term or any subsequent terms, the service term shall automatically renew for consecutive ninety (90) day terms. If you desire to terminate the service upon expiration of the initial term or any subsequent terms, you must send written notice to ACI at least thirty (30) days prior to the expiration of the term. ACI will also notify you in writing at least thirty (30) days prior to the expiration of the initial term or subsequent terms if we plan to terminate the service upon expiration of the term.

d. ACI’s VoIP services are provided as ancillary services to the customer’s primary local and long distance service. Such services do not replace the customer’s local and 1+ service provider. If you make a request to ACI in writing and provide a letter of agency, we may act as your agent in securing local and 1+ services from local exchange carriers and/or Interexchange carriers for you. The respective provider will bill these services directly to you, but ACI will be your one point of contact for these services and interface with these providers on your behalf.

e. You agree not to resell ACI’s voice services, nor permit these services to be used by anyone other than your employees, guests and customers of your business.

f. Because of variations in the telephone company wiring infrastructure, ACI cannot guarantee that a particular service or speed will be available until we actually complete the service set-up, even if we believe that it should be available and accept an order for it. All orders are subject to downgrade or cancellation as a result of unforeseen problems with the wiring infrastructure. If ACI cannot deliver the service as ordered, you may cancel the order without penalty and receive a full refund of any prepaid amounts for the order.

g. ACI shall have the right at any time to change or discontinue any aspect or feature of its service, including, but not limited to changes required by changes in government regulations. ACI shall have the right to add to, modify or delete any provision of this agreement, or any other Terms of Use at any time. ACI will notify you of any change by e-mail or U.S. Mail. You agree that any one of the foregoing will constitute sufficient notice of such changes. If you do not agree to the changes, you shall notify ACI no later than ten (10) days after our notice of your objection and the impact on your use of the service. If we cannot accommodate your objection, and the change materially affects your use of our service, we will agree to terminate the service without penalty within forty-five (45) days of such notification.

h. You are responsible in all respects (including payment obligations) for all use of the services provided to you, including under any screen name or password by any person, and all use by others. All use of your account, whether or not authorized by you, shall be deemed your use. Accordingly, you are responsible for protecting the confidentiality of its passwords.

i. If you want to transfer your account to any other person or entity, or to a different location, you must obtain ACI’s prior written approval; such approval will not be unreasonably withheld. You agree to pay for any charges associated with the move or transfer.

j. You understand that the service connects to the Internet and may be filtered to ensure compliance with our Acceptable Use Policy, and that ACI can neither control nor assume responsibility for any content on the Internet or content that is posted by a user.

k. The security of your computers is your responsibility. Neither ACI nor a third party will be responsible for any breach or break-in on your system or network.

2. Charges

a) You agree to pay for your services and all use of your account, including charges for installation and all local, state and federal fees and taxes. Charges for the service are on a separate price list that has been provided to you. ACI’s prices, except as provided by a long term contract, are subject to change from time to time; accordingly, ACI will notify you of any changes by e-mail or U.S. Mail. You agree that any one of the foregoing will constitute sufficient notice of such changes.

b) Recurring monthly charges will be billed monthly in advance. Usage charges for services will be billed in the next monthly billing cycle following such use, or as otherwise specified in the price list. All charges are payable on the due date specified on the bill, normally thirty (30) days from the date of billing.

c) You should send your payments in sufficient time for ACI to receive them on or before the due date stated on the monthly bill. A fair and reasonable fee may be charged on accounts that are past due. The current late fee is listed in the list of charges or can be provided upon request. ACI reserves the right to change the late fee at any time in the future upon notice to customer.

d) If you discontinue service other than as provided in this agreement, or the service is discontinued for account past due, you will be required to pay all outstanding and remaining term balances. If you want to reconnect you will be required to pay all outstanding balances and you may be required to pay a reconnect charge or trip charge before re-connection. Such charges include charges charged ACI by its vendors and your local exchange service provider to re-connect service.

e) ACI may charge a service fee for all returned checks and bankcard or charge card charge backs. The current late fee is listed in the list of charges or can be provided upon request.

f) You are responsible for all expenses, including reasonable attorneys’ fees, incurred by ACI in collecting any amounts due and unpaid.

3. Equipment and Software

a) The charges for the service include rental of the equipment to be operated at the customer’s premises to connect to ACI’s service. If you require additional premise equipment, then ACI may provide premise equipment for an additional fee.

b) ACI or its authorized agents will install any cabling necessary to connect the service to its equipment. You will be responsible for any cabling and/or equipment required connecting ACI equipment to your phone system and/or local computer network.

c) ACI and its authorized agents may enter your premises with prior notice and during normal business hours and have access to your computers periodically to install, connect, inspect, maintain, repair, or replace its equipment or software, or to disconnect and remove its equipment. If you are not the owner of the premises upon which equipment and software are to be installed, you must obtain the consent of the premises’ owner for ACI personnel or its agents to enter the premises with reasonable notice and scheduling.

d) ACI may upgrade, modify, enhance and replace the equipment and software from time to time through downloads from the network or otherwise.

Equipment

I. The rental equipment provided by ACI is and shall remain ACI’s personal property. You shall not acquire an ownership interest in this equipment by virtue of the payments for service, unless specifically written in your individual contract.

II. ii. You shall not alter, misuse, tamper with or remove ACI’s equipment, or remove any markings or labels from the equipment including serial or identity numbers. You will take all reasonable steps to safeguard ACI’s equipment from loss or damage, and will not permit anyone other than ACI’s authorized representative to perform any work on it.

III. iii. Upon termination of the service, you must return the equipment to ACI in the same condition as when it was received, ordinary wear and tear excepted.

IV. iv. If the equipment is damaged, destroyed, lost or stolen while in your possession, you are liable for the cost of repair or replacement of the equipment. If the equipment is not returned to ACI upon termination of the service, you agree to pay ACI the equipment’s replacement cost without any deduction for depreciation, wear and tear or on the physical condition of the equipment or you agree to provide ACI with equipment in working order of similar make, model and specifications as equipment provided for use with service.

Software

I. If software is provided, ACI grants you a limited, non-exclusive license to use the software, in object code form only, solely for the purpose of connecting your computers to ACI ‘s service. This license will permit such use by you and any person you authorize to use your account, under any password, provided that you shall be responsible for all use of the account. This license will commence upon your acceptance of service, and will terminate immediately upon termination of the service. ACI and its licensors retain all rights and interests in and to the software.
II. ii. You are permitted to make a single copy of any such software solely for back-up purposes, provided that such copy contains the same copyright notices and proprietary markings as the original software. You will not copy, and will not permit any other copying, or any translation, reverse engineering or reverse compiling, disassembly or modification of or preparation of any derivative works based on the software.
III. iii. You agree to destroy all software and any related written material together with any copies promptly upon termination of the service.

4. Customer Conduct

a) You may use the service for lawful purposes only, and in accordance with this agreement and ACI ‘s Acceptable Use Policy. You shall not upload, post, transmit or otherwise make available any material that violates or infringes in any way upon the rights of others, that is unlawful, threatening, abusive, obstructive, harassing, libelous, invasive of privacy or publicity rights, that in the circumstances would be obscene or indecent, that constitutes hate speech, that is otherwise offensive or objectionable, or that encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law. You may not link personal home pages to material or content that violates the standards of conduct in this agreement or its Acceptable Use Policy. ACI may remove content that in its judgment violates these standards, or require that you remove such content.

b) You may not upload, post, transmit or otherwise make available any material protected by copyright, trademark, patent, trade secret or other proprietary right in a manner that infringes or violates any such right. ACI’s policy is to terminate any customer’s service where there is a repeat infringement after reasonable notification. This policy does not affect any other rights ACI may have under law or under any agreement between you and ACI. ACI also reserves the right to suspend or terminate your service for a single violation of any provision of agreement, its Acceptable Use Policy or its tariffs.

c) You may use, copy and distribute the information found on ACI ‘s web sites for personal, internal, noncommercial, educational purposes only. All copies that you make of the information must bear any copyright, trademark or other proprietary notice located on the site, which pertain to the information being copied. Except as authorized in this paragraph, you are not being granted any right or license under any copyright, trademark, service mark, patent or other intellectual property right in the information, services, processes or technology described therein or under any other intellectual property right of ACI or its affiliates. ACI, its affiliates, and any third party owner of such rights retain all such rights.

d) ACI’s names and logos and all related product and service names, design marks and slogans are the trademarks or service marks of ACI or one of its affiliates. You must obtain ACI’s written authorization before using any ACI name or mark in any advertising, publicity or in any other commercial manner.

e) You shall not:

I. Post or transmit any unsolicited bulk e-mail (SPAM);

II. Breach or attempt to breach security of another user or attempt to gain access to any other person’s computer, software or data without the knowledge and consent of such person; or use ACI’s equipment or service in any attempt to circumvent the user authentication or security of any other person’s host, network or account without the knowledge and consent of such person; or use or distribute tools designed for compromising any other person’s security without the knowledge and consent of such person;

III. Restrict, prohibit or otherwise interfere with the ability of any other person to use or enjoy the service including, but not limited to, posting or transmitting any information or software which contains a virus that was known of at the time of transmission or other harmful feature or deliberately overloading or flooding any other person’s computer; or

IV. Use an IP address or client ID not assigned to you as a customer. You acknowledge that you are responsible for and assume all risks with respect to whether materials uploaded, posted or otherwise made available on or via ACI’s service through your account may violate any laws or rights.

5. Review and Enforcement

a) ACI shall have the right, but not the obligation, to review content on public areas of the service, including chat rooms, bulletin boards and forums, to determine compliance with this agreement and our Acceptable Use Policy.

b) ACI has the right to edit, refuse to post, request removal of, or remove any material submitted to or posted on its service, including personal home pages and links to other sites. Without limiting the foregoing or ACI’s other rights, ACI has the right to remove any material that ACI in its individual discretion determines to be unacceptable or to violate the terms of this agreement, any bandwidth use limitations or its Acceptable Use Policy. If ACI finds any violation or objectionable material, it may suspend your service, take other action to prevent you from using certain account privileges (e.g., home pages) or cancel your account without prior notification. ACI may also suspend or cancel your account for posting content to the Internet that violates this agreement or its Acceptable Use Policy. If your service is suspended, you will not be charged for services during the suspension. If your account is canceled, ACI may refund any pre-paid fees minus any amount due.

c) You agree that ACI shall have the right to take any reasonable and professional action that it deems appropriate to protect its service, its reputation, its facilities and equipment.

d) ACI has the right to monitor your bandwidth use (i.e. volume of data transmitted) at any time and on an on-going basis but will not limit use of bandwidth lower than rate specified in the Service Order.

6. Republication

a) Material posted or transmitted through the Internet may be copied, republished or distributed by third parties, and you will indemnify and hold ACI harmless for any harm resulting from such actions.

b) You grant to ACI the right and license to use, reproduce, modify, publish, distribute and display all material posted on the public areas of the service via your account for purposes consistent with operation and promotion of ACI’s services. You represent and warrant that you have all necessary rights to grant this license.

c) ACI will not use your logo, information, or material highlighting the business relationship between ACI and you without your prior written consent.

7. Service and Repairs

At ACI’s expense, it will repair or replace damaged equipment, modify software, and otherwise attempt to correct interruptions of the service, due to reasonable equipment wear and tear or technical malfunction of the system or network operated by ACI. At your expense, ACI may repair or replace damaged equipment, modify software, and otherwise attempt to correct interruptions of the service due to your, your agents’, and your employees’ actions or omissions, You are solely responsible for the operation, security, repair and maintenance of your own equipment and software.

8. Force Majeure

ACI is not liable for interruption of the service due to circumstances beyond its control, including without limitation, acts of God, flood, natural disaster, regulation or governmental acts, fire, civil disturbance, strike or weather.

9. Disclaimer of Warranty; Limitation of Liability

I. EXCEPT AS SET FORTH IN THE SERVICE LEVEL AGREEMENT ATTACHED HERETO AS EXHIBIT A, YOU AGREE THAT THE SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES THAT ARE IMPLIED BY, AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER, THE LAWS APPLICABLE TO THIS AGREEMENT. YOU FURTHER AGREE THAT ALL USE OF THE SERVICE (INCLUDING BUT NOT LIMITED TO THE ACCESSING AND USE OF CONTENT, INFORMATION AND SERVICES, THE EQUIPMENT AND SOFTWARE, THE PURCHASE OF MERCHANDISE AND SERVICES, THE TRANSMISSION OF INFORMATION AND OTHER COMMUNICATIONS BY AND TO YOU AND THE DOWNLOADING OF COMPUTER FILES) IS AT THE YOUR SOLE RISK. Without limiting the foregoing:

a. ACI makes no warranties as to the performance, including, but not limited to, any warranty that any data, files or other communications by or to you will be transmitted in uncorrupted form or within a reasonable period of time, that the service will be uninterrupted or error free or as to the results that may be obtained from use of the service.

b. ACI neither endorses or warrants, nor shall it be responsible in any regard for, any merchandise or services ordered through the Internet or any securities trading or other commercial transactions, whether or not such merchandise or services or the providers of any transactional services are promoted or marketed on the Internet.

c. ACI does not warrant the security of the customer’s communications via its services. ACI does not warrant that third parties will not gain unauthorized access to or monitor the customer’s computers or online communications. ACI is not liable for any such unauthorized access.

d. Software and other content downloaded via the Internet may contain harmful or disabling features or codes such as viruses. ACI does not warrant, nor undertake to ensure, that computer files received via the Internet will not contain any virus or other harmful or disabling code or feature, and each expressly disclaims any liability for damage to or loss or destruction of software, files or data resulting from the same.

II. YOU UNDERSTAND THAT THE INSTALLATION, USE, INSPECTION, MAINTENANCE, REPAIR, REPLACEMENT OR REMOVAL OF THE SERVICE, EQUIPMENT AND SOFTWARE COULD RESULT IN DAMAGE TO YOUR COMPUTERS OR OTHER HARDWARE, INCLUDING SOFTWARE AND DATA FILES. YOU ARE SOLELY RESPONSIBLE FOR BACKING UP ALL EXISTING COMPUTER FILES PRIOR TO THE PERFORMANCE OF ANY OF THE FOREGOING ACTIVITIES. ACI IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY WHATSOEVER, FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY SOFTWARE, HARDWARE, DATA OR FILES EXCEPT FOR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE BY ACI, OR IT’S EMPLOYEES.

III. Except for the refund or credit as expressly provided under this agreement, in no event will either party, its employees or agents who are involved in creating, producing or distributing the service including the content, the equipment or the software, be liable for any direct, indirect, incidental, special or consequential damages arising out of the use of or inability to use the service, action taken to protect the service or the breach of any warranty.

IV. The customer acknowledges that the provisions of this section applies to all content and services included in, or accessible through, ACI, and are for the benefit of, and may be enforced by, ACI.

10. Indemnification

You agree to defend, indemnify and hold ACI harmless from and against any and all claims and expenses, including reasonable attorneys’ fees, arising out of or related in any way to your use of the service or otherwise arising out of the use of your account or the equipment or the software,. You shall not be obligated to indemnify ACI for any costs or expenses arising out of or related to the willful misconduct or gross negligence of ACI.
11. Privacy
ACI and its affiliates are committed to protecting the privacy and security of its customers. The customer’s privacy interests, including its ability to limit disclosure of certain information to third parties, are addressed by, among other laws, the Electronic Communications Privacy Act.
a. ACI uses private information for billing and operations purposes.

b. ACI will not disclose information on a customer’s account to any unaffiliated third party for marketing purposes.

c. ACI may disclose customer information without the customer’s consent to comply with a subpoena, court order, or legal reporting requirement.

d. ACI may disclose customer information to protect accounts against fraud and unauthorized transactions, to resolve customer disputes, and as necessary to our accountants, attorneys, regulators and auditors.

e. In addition to actions and disclosures specifically authorized by statute or authorized elsewhere in this agreement, ACI shall have the right (except where prohibited by law notwithstanding your consent), but not the obligation, to monitor content on its service and to disclose any information to protect its rights, property or operations, and where circumstances suggest that individual or public safety is in peril. You agree to allow ACI to release any and all information about you to comply with a legal process, such as a subpoena, search warrant, court order, or in very special cases, such as a physical threat.

f. When you use ACI’s Internet access to transmit information, the Electronics Communications Privacy Act permits ACI to access such information, including the content of communications. It also permits ACI to disclose such information to an addressee or intended recipient (or his or her agent); to a person involved in forwarding such information to its destination; when it is necessarily incident to providing service or to protect our rights or property; to others with the consent of the customer or an addressee or intended recipient (or his or her agent); to law enforcement if such information appears to be evidence of child pornography or was inadvertently obtained and appears to pertain to a crime; or as otherwise provided by law. You agree that ACI may monitor content on the service; and may disclose any information in the possession of either to protect their respective rights, property or operations, or where circumstances suggest that individual or public safety is in peril.

12. Arbitration

Any controversy or claim arising out of or related to this agreement (but not any claims arising out of commercial activities or the theft or other unauthorized receipt of any ACI service by the customer) shall be resolved by binding arbitration commenced within one year under the then-current commercial arbitration rules of the American Arbitration Association (or any consumer rules adopted by the American Arbitration Association to which both parties agree), except that either ACI or you may seek equitable or injunctive relief only in an appropriate court of law or equity. No claim subject to arbitration under this agreement may be combined with a claim subject to resolution before a court of law or equity. The arbitrator shall determine the arbitration of disputes. Any award of the arbitrator shall be in writing and shall state the reasons for the award. Any court having competent jurisdiction may enter judgment upon an award. The arbitrator shall not have the power to award any damages in excess of the limits set forth in or excluded under other sections of this agreement. The Federal Arbitration Act, 9 U.S.C. Sections 1 to 16, shall govern the interpretation and enforcement of this paragraph. ACI and you shall each bear their own expenses and the cost of arbitrator shall be shared except that the arbitrator may award arbitrator costs to the prevailing party. You expressly waive any entitlement to attorneys’ fees or punitive damages to the fullest extent permitted by law. Consolidated or class action arbitrations shall not be permitted. The arbitrator shall not have the power to order pre-hearing discovery of documents or the taking of depositions, but may compel attendance of witnesses and the production of documents at the hearing.
13. Entire Agreement
This agreement, the customer’s service order, and the Acceptable Use Policy constitute the entire agreement between ACI and the customer, and supersede all previous written or oral agreements between ACI and the customer. Acceptance of ACI’s service shall constitute acceptance of its terms and conditions. This Agreement shall not be construed in favor of, or against, either party.

14. Choice of Law and Forum

These Terms of Use are to be governed and construed under the laws of the State of Virginia, excluding its conflicts of law rules. Subject to the arbitration provisions contained herein, you expressly agree that the exclusive jurisdiction for any claim or action arising out of or relating to this agreement, or which arises from any use or misuse of this or any other site by you, shall be filed only in the courts of Sterling, Virginia. You further agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.

15. Severability

If any provision of this agreement is found by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the web site Terms of Use and Acceptable Use Policy shall continue in full force and effect.

16. Amendment

ACI reserves the right to change these web site Terms of Use and its general policies at any time and will immediately post the updated policy on its web site and send notice via e-mail of the changes. Your continued use of ACI’s services after thirty (30) days notice of such changes shall be deemed your acceptance to such modifications. If you do not agree with the changes you must immediately notify ACI in writing and give notice of termination of your agreement with ACI pursuant to the termination provisions contained herein.

17. Termination

Customer may terminate this Agreement and all service orders issued under this Agreement if ACI breaches any of the material terms of this Agreement, which breach shall not have been cured after thirty (30) days’ receipt of written notice thereof by Customer. For purposes of this Section 17, a breach of a material term shall include without limitation failure to achieve any of the service level agreements, as documented by the appropriate requests for credits, for any two consecutive months in a calendar year during the term of this Agreement or any service order hereunder.

Terms and Conditions of Product Sales and Service Projects
THE TERMS AND CONDITIONS OF PRODUCT SALES AND SERVICE PROJECTS ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY YOU (“CUSTOMER”) ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN. BY ACCEPTING DELIVERY OF THE PRODUCTS OR BY ENGAGING ACI COMMUNICATIONS, LTD (“ACI”) TO PROVIDE PRODUCT OR PERFORM OR PROCURE ANY SERVICES, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS UNLESS CUSTOMER AND ACI HAVE SIGNED A SEPARATE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN. ANY GENERAL DESCRIPTION OF THE TYPES OF PRODUCTS OR SERVICES AND RESULTS THEREOF POSTED ON THE WEBSITE DO NOT CONSTITUTE PART OF THE AGREEMENT BETWEEN ACI AND CUSTOMER.

Important Information About These Terms and Conditions

These Terms and Conditions constitute a binding contract between Customer and ACI and are referred to herein as either “Terms and Conditions” or this “Agreement”. Customer accepts these Terms and Conditions by making a purchase from or placing an order with ACI or shopping on ACI’s Website (the “Site”) or otherwise requesting products (the “Products”) or engaging ACI to perform or procure any Services (as this and all capitalized terms are defined herein). These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on the Site at the time Customer places an order or signs a Statement of Work will govern the order in question, unless otherwise agreed in writing by ACI and Customer.?

Customer consents to receiving electronic records, which may be provided via a Web browser or e-mail application connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting ACI. In addition, Internet connectivity requires access services from an Internet access provider, such as ACI. Contact ACI or your local access provider for details. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.??

Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any purchase order or invoice, or any document in electronic or written form that is signed and delivered by each of the parties for the performance of Services other than Third Party Services (each, a “Statement of Work”). This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.

Governing Law

THESE TERMS AND CONDITIONS, ANY STATEMENTS OF WORK, THE SERVICES HEREUNDER AND ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF VIRGINIA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN LOUDON COUNTY, VIRGINIA, AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions more than one (1) year after the cause of action has arisen. The rights and remedies provided ACI under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.??

Title; Risk of Loss

If Customer provides ACI with Customer’s carrier account number or selects a carrier other than a carrier that regularly ships for ACI, title to Products and risk of loss or damage during shipment pass from ACI to Customer upon shipment from ACI’s facility (F.O.B. Origin, freight collect). For all other shipments, title to Products and risk of loss or damage during shipment pass from ACI to Customer upon receipt by Customer (F.O.B. Destination, freight prepaid and added). Notwithstanding the foregoing, title to software will remain with the applicable licensor(s), and Customer’s rights therein are contained in the license agreement between such licensor(s) and Customer. ACI retains a security interest in the Products until payment in full is received.

Services

Customers may order services (collectively, “Services”) from or through ACI from time to time. Certain Services, such as extended warranty service by manufacturers, are sold by ACI as a distributor or sales agent (“Third Party Services”).
In the case of Third Party Services, the third party shall be the party responsible for providing the services to the Customer and Customer will look solely to the third party for any loss, claims or damages arising from or related to the provision of such Third Party Services. Customer hereby releases ACI and the entities that control, are controlled by, or are under common control with ACI (“Affiliates”) from any and all claims arising from or relating to the purchase or provision of any such Third Party Services. Any amounts, including, but not limited to, taxes, associated with Third Party Services which may be collected by ACI will be collected solely in the capacity as an independent sales agent.
Where Services are ordered in a Statement of Work, each Statement of Work hereby incorporates these Terms and Conditions and constitutes a separate agreement with respect to the Services performed. In the event of an addition to or a conflict between any term or condition of the Statement of Work and these Terms and Conditions, the terms and conditions of this Agreement will control, except as expressly amended in the applicable Statement of Work by specific reference to this Agreement. Each such amendment will be applicable only with respect to such Statement of Work and not to future Statements of Work. Changes to the scope of the Services described in a Statement of Work will be made only in a writing executed by authorized representatives of both parties. ACI will have no obligation to commence work in connection with any such change, unless and until the change is agreed upon in that writing executed by both parties. All such changes to the scope of the Services will be governed by these Terms and Conditions and the applicable Statement of Work. Each Statement of Work may be signed in separate counterparts each of which shall be deemed an original and all of which together will be deemed to be one original.??

Cooperation

In addition to any specific Customer duties set forth in any applicable Statement of Work, Customer agrees to cooperate with ACI in connection with performance of the Services by providing (i) timely responses to ACI’s inquiries and requests for approvals and authorizations, (ii) access to any information or materials reasonably requested by ACI which are necessary or useful as determined by ACI in connection with providing the Services, including, but not limited to, physical and computer access to Customer’s computer systems, and (iii) all Required Consents necessary for ACI to provide the Services. “Required Consents” means consents or approvals required to give ACI, its Affiliates, and its and their subcontractors the right or license to access, use and modify all data and third party products. Customer acknowledges and agrees that the Services are dependent upon the completeness and accuracy of information provided by Customer and the knowledge and cooperation of the agents, employees or subcontractors (“Personnel”) engaged or appointed by Customer who are selected by Customer to work with ACI.??
ACI will follow all reasonable Customer security rules and procedures, as communicated in writing by Customer to ACI from time to time.

Access

ACI may perform the Services at Customer’s place of business, at ACI’s own facilities or such other locations as ACI and Customer deem appropriate. When the Services are performed at Customer’s premises, ACI will attempt to perform such Services within Customer’s normal business hours unless otherwise jointly agreed to by the parties. Customer will also provide ACI access to Customer’s staff and any other Customer resources (and when the Services are provided at another location designated by Customer, the staff and resources at such location) that ACI determines are useful or necessary for ACI to provide the Services. When the Services are provided on Customer’s premises or at another location designated by Customer, Customer agrees to maintain adequate insurance coverage to protect ACI and Customer’s premises and to indemnify and hold ACI and its Affiliates, and its and their agents and employees harmless from any loss, cost, damage or expense (including, but not limited to, attorneys fees and expenses) arising out of any product liability, death, personal injury or property damage or destruction occurring at such location in connection with the performance of the Services, other than solely as a result of ACI’s gross negligence or willful misconduct.

Payment?

Orders are not binding upon ACI until accepted by ACI. Customer agrees to pay the total purchase price for the Products plus shipping (to the extent shipping is not prepaid by Customer). Terms of payment are within ACI ‘s sole discretion. In connection with Services being performed pursuant to a Statement of Work, Customer will pay for the Services in the amounts and in accordance with any payment schedule set forth in the applicable Statement of Work. If no payment schedule is provided, Customer will pay for the Services as invoiced by ACI. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice, subject to continuing credit approval by ACI. ACI may invoice Customer separately for partial shipments, and ACI may invoice Customer for all of the Services described in a Statement of Work or any portion thereof. Customer agrees to pay interest on all past-due sums at the lower of one and two-half percent (2.5%) per month or the highest rate allowed by law. Customer will pay for, and will indemnify and hold ACI and its Affiliates harmless from, any applicable sales, use, transaction, excise or similar taxes and any federal, state or local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of, or otherwise associated with any Statement of Work, the Products or the Services. Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide ACI with the necessary supporting documentation. In the event of a payment default, Customer will be responsible for all of ACI’s costs of collection, including, but not limited to, court costs, filing fees and attorneys’ fees. In addition, if payments are not received as described above, ACI reserves the right to suspend Services until payment is received.??Except as otherwise specified on an applicable Statement of Work, Customer will reimburse ACI for all reasonable out-of-pocket expenses incurred by ACI in connection with the performance of the Services, including, but not limited to, travel and living expenses.

Export Sales

If this transaction involves an export of items (including, but not limited to commodities, software or technology) subject to the Export Administration Regulations, such items were exported from the United States by ACI in accordance with the Export Administration Regulations. Customer agrees that it will not divert, use, export or re-export such items contrary to United States law. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government. The list of such countries subject to United States economic sanctions or embargoes may change from time to time but currently includes Cuba, Iran, Sudan, and Syria. Customer also expressly acknowledges and agrees that it will not export, re-export, or provide such items to entities and persons that are ineligible under United States law to receive such items, including but not limited to, any person or entity on the United States Treasury Department’s list of Specially Designated Nationals or on the United States Commerce Department’s Denied Persons List, Entity List, or Unverified List. In addition, manufacturers’ warranties for exported Products may vary or may be null and void for Products exported outside the United States.

Warranties?

Customer understands that ACI is not the manufacturer of the Products purchased by Customer hereunder and the only warranties offered are those of the manufacturer, not ACI or its Affiliates. In purchasing the Products, Customer is relying on the manufacturer’s specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the Products that may be provided by ACI or its Affiliates. ACI AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER’S WARRANTY. Customer expressly waives any claim that it may have against ACI or its Affiliates based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to any Product and also waives any right to indemnification from ACI or its Affiliates against any such Claim made against Customer by a third party. Customer acknowledges that no employee of ACI or its Affiliates is authorized to make any representation or warranty on behalf of ACI or any of its Affiliates that is not in this Agreement.
ACI warrants that the Services will be performed in a good and workmanlike manner. Customer’s sole and exclusive remedy and ACI’s entire liability with respect to this warranty will be, at the sole option of ACI, to either (a) use its reasonable commercial efforts to reperform or cause to be reperformed any Services not in substantial compliance with this warranty or (b) refund amounts paid by Customer related to the portion of the Services not in substantial compliance; provided, in each case, Customer notifies ACI in writing within five (5) business days after performance of the applicable Services.
EXCEPT AS SET FORTH HEREIN OR IN ANY STATEMENT OF WORK THAT EXPRESSLY AMENDS ACI’S WARRANTY, AND SUBJECT TO APPLICABLE LAW, ACI MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, TITLE, ACCURACY OR NON-INFRINGEMENT) ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY RELATING TO THIRD PARTY SERVICES, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN PERFORMING SERVICES AND ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIVE OF ACI OR OF ITS AFFILIATES IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF ACI OR ANY OF ITS AFFILIATES THAT IS NOT IN THIS AGREEMENT OR IN A STATEMENT OF WORK EXPRESSLY AMENDING ACI’S WARRANTY.

Customer shall be solely responsible for daily back-up and other protection of its data and software against loss, damage or corruption. Customer shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted during the performance of Services. ACI, ITS AFFILIATES, AND ITS AND THEIR SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED TO OR RESULTING FROM THE SERVICES.

ACI will not be responsible for and no liability shall result to ACI or any of its Affiliates for any delays in delivery or in performance which result from any circumstances beyond ACI’s reasonable control, including, but not limited to, Product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, embargo, acts of God or acts or laws of any government or agency. Any shipping dates or completion dates provided by ACI or any purported deadlines contained in a Statement of Work or any other document are estimates only.

Pricing Information; Availability Disclaimer

ACI reserves the right to make adjustments to pricing, Products and Service offerings for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, manufacturer price changes, supplier price changes and errors in advertisements. All orders are subject to Product availability and the availability of Personnel to perform the Services. Therefore, ACI cannot guarantee that it will be able to fulfill Customer’s orders. If Services are being performed on a time and materials basis, any estimates provided by ACI are for planning purposes only.

Limitation of Liability

UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL ACI, ITS AFFILIATES OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABILE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS , EVEN IF ACI HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY ACI OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS OR SERVICES; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY INCURRED BY ACI OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF ACI AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM; OR (B) $50,000.00.

Limited License?

Customer’s sole rights to the work product, materials and other deliverables to be provided or created (individually or jointly) in connection with the Services, including but not limited to, all inventions, discoveries, methods, processes, formulae, ideas, concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary tools, methods of analysis and other information (whether or not capable of protection by patent, copyright, trade secret, confidentiality, or other proprietary rights) that is created (individually or jointly) or discovered in the course of performance of this Agreement that are embodied in such work or materials (“Work Product”) will be, upon payment in full, a non-transferable, non-exclusive, royalty-free license to use such Work Products solely for Customer’s internal use. Customer will have no ownership or other property rights thereto and Customer shall have no right to use any such Work Product for any other purpose whatsoever. Customer acknowledges that ACI may incorporate intellectual property created by third parties into the Work Product (“Third Party Intellectual Property”). Customer agrees that its right to use the Work Product containing Third Party may be subject to the rights of third parties and limited by agreements with such third parties.?

Confidential Information

Each party anticipates that it may be necessary to provide access to information of a confidential nature of such party, the Affiliates or a third party (hereinafter referred to as “Confidential Information”) to the other party in the performance of this Agreement and any Statement of Work. “Confidential Information” means any information or data in oral, electronic or written form which the receiving party knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement, including but not limited to the terms and conditions of each Statement of Work. Confidential Information will not include information which: (a) becomes known to the public through no act of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by agents, employees or subcontractors of the receiving party who have not had access to such information. To the extent practicable, Confidential Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Confidential Information will not be evidence that such information is not confidential or protectable.

Each party agrees to hold such Confidential Information confidential for a period of three (3) years following the date of disclosure and to do so in a manner at least as protective as it holds its own Confidential Information of like kind. Disclosures of Confidential Information will be restricted (i) to those individuals who are participating in the performance of this Agreement and need to know such Confidential Information for purposes of providing or receiving the Products or Services or otherwise in connection with this Agreement, or (ii) to its business legal and financial advisors, each on a confidential basis. Upon the written request of a party, the other party will either return or certify the destruction of the Confidential Information of the other party.

If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose the Confidential Information, the receiving party will give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or similar protective measure.

Return Privileges

To obtain ACI’s return policy, Customer should contact ACI Customer Support at 866.964.1960 Option 2 or e-mail at support@acisolutions.net Customer must notify ACI Customer Support of any damaged Products within ten (10) days of receipt.

Termination

Either party may terminate performance of a Service or a Statement of Work for cause if the other party fails to cure a material default in the time period specified herein. Any material default must be specifically identified in a written notice of termination. After written notice, the notified party will, subject to the provision of warranties herein, have thirty (30) days to remedy its performance except that it will only have ten (10) days to remedy any monetary default. Failure to remedy any material default within the applicable time period provided for herein will give cause for immediate termination, unless such default is incapable of being cured within the time period in which case the defaulting party will not be in breach (except for Customer’s payment obligations) if it used its reasonable efforts to cure the default. In the event of any termination of the Services or a Statement of Work, Customer will pay ACI for all Services performed and expenses incurred up to and including the date of termination plus any termination fee if one is set forth in the applicable Statement of Work. Customer will also pay ACI for any out-of-pocket demobilization or other direct costs resulting from termination. Upon termination, all rights and obligations of the parties under this Agreement will automatically terminate except for any right of action occurring prior to termination, payment obligations and obligations that expressly or by implication are intended to survive termination (including, but not limited to, limitation of liability, indemnity, confidentiality, or licensing of Work Product and this survival provision).

Provisions Related to Custom Imaging

If in connection with the provision of Products or Services, Customer desires to have ACI provide installation of custom software images, Customer will be required to execute an Installation Indemnity Agreement.

Arbitration

Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims) arising from or relating to the Products, the Services, the interpretation or application of these Terms and Conditions or any Statement of Work or the breach, termination or validity thereof, the relationships which result from these Terms and Conditions or any Statement of Work (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or ACI’s or any of its Affiliates’ advertising or marketing (collectively, a “Claim”) WILL BE RESOLVED, UPON THE ELECTION OF ANY OF ACI, CUSTOMER OR THE THIRD PARTIES INVOLVED, EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the Rules of the American Arbitration Association. If arbitration is chosen by any party with respect to a Claim, neither ACI nor Customer will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. Further, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in these Terms and Conditions, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will take place exclusively in Sterling, Virginia. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to ACI arising out of the Products or Services will be exclusively litigated in court rather than through arbitration.

Miscellaneous

ACI may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or the performance of Services or assign the right to receive payments, without Customer’s consent. Customer may not assign these Terms and Conditions, or any of its rights or obligations herein without the prior written consent of ACI. Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No provision of this Agreement or any Statement of Work will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. The relationship between ACI and Customer is that of independent contractors and not that of employer/employee, partnership or joint venture. If any term or condition of this Agreement or a Statement of Work is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement or the applicable Statement of Work. Notices provided under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.