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.