VoIP - Voice over Internet Protocol

This agreement ("Agreement") is between ACD Telecom, Inc. and ACD.net, Inc. ("ACD") and an end user ("End User") of the ACD.net Voice and Video Communications Service ("ACD.net VoIP"). Any ACD.net VoIP services or products ("Services") provided by ACD to End User shall be governed by the terms and conditions herein. By activating the Services, End User acknowledges receiving, reading and understanding this Agreement and accepts the terms and conditions herein. End User acknowledges that they are of legal age to enter into this Agreement.

1. TERMS AND CONDITIONS. The terms and conditions stated herein are in lieu of and replace any and all terms and conditions set forth in any documents issued by End User, including, without limitation, purchase orders and specifications. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY END USER AT ANY TIME ARE HEREBY OBJECTED TO BY ACD, AND ANY SUCH DOCUMENTS SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE OR SERVICE RENDERED HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON ACD. No waiver or amendment to this contract or these terms and conditions shall be binding on ACD unless made in writing expressly stating that it is such a waiver or amendment and signed by a representative of ACD.
2. TERM. Service is offered on a monthly basis for a term which begins on the date that ACD activates your Service and ends on the day before the same date in the following month.  Subsequent terms of this Agreement automatically renew on a monthly basis without further action by you unless you give ACD written notice of non-renewal at least ten (10) days before the end of the monthly term in which the notice is given.  You are purchasing the Service for full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you will be responsible for the full month's charges to the end of the then-current term, including without limitation unbilled charges, plus any disconnect fee, all of which immediately become due and payable.  Expiration of the term or termination of Service does not excuse the Customer from paying all unpaid, accrued charges due in relation to the Agreement.
3. 911 AND SERVICE REQUIREMENTS.

a.      911. ACD.net is subject to an FCC requirement to provide notification of any E911 limitations that may be associated with the service provided to you and/or your company, as is the case with E911 service provided by a traditional telephone service provider, you are advised that the E911 service provided by ACD.net: 1) may not function with the loss of electrical power, including the loss of power to telephone equipment or other equipment necessary to route E911 calls to the appropriate emergency call center; 2) may not function if the broadband connection is not operational; 3) will not function at a remote location or may transmit incorrect physical location information for the caller if internal users are allowed to use their IP-based phones remotely; 4) will not function if the telephone equipment or other equipment necessary to place calls is not correctly configured; 5) may not transmit the correct physical address for the E911 call due to incorrect information provided by you, use of a non-native telephone number or delays in loading or updating automatic number identification and location information into the E911 database; 6) may not be capable of being received and/or processed by an emergency call center do to the center's technical limitations; and )7 may be affected by other factors or force majeure events, such as quality of the broadband connection and network congestion. Your signature on this agreement will serve as your acknowledgement that ACD.net has advised you of these potential limitations. ACD.net will also provide labels, at your request, to alert users to the limitations discussed above. The FCC has suggested that these labels be placed on or near the telephone and/or equipment associated with your service. The physical location which you provided to us prior to the initiation of service and at which our services are first installed shall be the registered location that will be provided to the emergency call center when you place a E911 call and will remain the registered location until ACD.net is notified in writing of any change.

d.      NON-VOICE SYSTEMS. END USER ACKNOWLEDGES THAT THE SERVICES ARE NOT INITIALLY SETUP TO FUNCTION WITH OUTDIALING SYSTEMS INCLUDING HOME SECURITY SYSTEMS, FAX MACHINES, AND SATELLITE TELEVISION SYSTEMS. END USER HAS NO CLAIM AGAINST ACD FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES. YOU MUST INFORM US THAT YOU WILL BE USING THIS FEATURE FOR IT TO BE ACTIVATED.

4. EQUIPMENT. To provide the Services, ACD may provide Equipment to End User. All Equipment shipments are F.O.B. ACD's facility. ACD's liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to End User upon delivery to carrier. End User will be provided a twelve (12) month manufacturer's warranty from the date of purchase of Equipment or Service. End User shall be required to obtain authorization from ACD to return any Equipment. ACD will provide replacement Equipment only if the Equipment is deemed to be defective and covered under the warranty. ACD will not cover replacement for lost, stolen or modified equipment. Equipment returned by End User that is not covered under warranty may be refused by ACD, and End User will be responsible to pay return shipping charges.



5. BILLING, CHARGES AND PAYMENT.

a.      PAYMENT. Upon purchase of the Service, End User must provide ACD with a valid credit card number from an accepted issuer (Visa, MasterCard, or Discover). End User authorizes ACD to charge the credit card number provided by End User ("Credit Card") for all charges arising from End User's use of the Services. End User agrees to notify ACD of any change to the credit card information including, but not limited to, changes in account number, expiration date or billing address. ACD shall not be responsible for any charges made by the Credit Card issuer to End User's Credit Card account for exceeding credit limit, insufficient funds or other reasons.

b.      CREDIT TERMS. All Services provided to End User and covered by the Agreement shall at all times be subjected to credit approval or review by ACD. End User will provide such credit information or assurance as is requested by ACD at any time. ACD, in its sole discretion and judgment, may discontinue credit at any time without notice.

c.       BILLING. ACD will provide End User with a monthly on-line invoice for the Services and bill all charges invoiced to End User's account to the Credit Card. Such charges shall include activation fees, monthly service fees, shipping charges, termination fees, equipment charges, toll charges, taxes and any other applicable charges. Monthly service fees are paid in advance of each month's service; toll charges and any other applicable charges are billed at the end of each month's service. ACD reserves the right to charge the Credit Card for toll charges at any time if End User's cumulative toll charges for the current month exceed two hundred and fifty dollars ($250.00). Billing for monthly service fees commences upon receipt of the equipment for the Services, and the first month’s monthly service fee shall be prorated to take into account any partial month that may occur as the result of the date monthly service fees are initiated.

d.      LATE/NON-PAYMENT. If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment or declined Credit Card charges, ACD may suspend or terminate the Services and all accrued charges shall be immediately due, plus a late fee of the lesser of 1.5% per month or the maximum allowed by law accrued from the date of invoice until payment in full is received by ACD. If charges cannot be processed to the Credit Card, End User will be given 10 days email notice prior to suspension. No suspension or termination of the Services or of this Agreement shall relieve End User from paying any amounts due hereunder and leaves End User FULLY LIABLE to ACD for ALL CHARGES ACCRUED BEFORE TERMINATION and for all costs incurred by ACD in collecting such amounts, such as (but not limited to) collection costs and attorney’s fees.

e.      TAXES. Prices for the Services do not include any customs duties, sales, use, value added, excise, federal, state, local, public utility or other similar taxes. All such taxes shall be paid by End User and will be added to any amounts otherwise charged to End User unless End User provides ACD with an appropriate exemption certificate. If any amounts paid for the Services are refunded by ACD, applicable taxes may not be refundable.

f.      CREDITS. End User acknowledges and agrees that the Services are provided "as is, where is." Credit allowances for interruption of the Services shall not be provided.

g.      DISCOUNTS. From time to time in its sole discretion, ACD may offer promotions or discounts of activation or other fees. Any promotion or discount codes must be entered by End User upon purchase of the Services. End User shall not be entitled to a subsequent credit for such promotions or discounts, if not requested at the time of account creation or change of service.

h.      BILLING DISPUTES. End User must dispute any charges for the Services within thirty (30) days of receipt of the monthly on-line invoice or End User waives any objection.

6. TOLLS. Every call to or from Equipment using the Services that originates or terminates in the Public Switched Telephone Network ("PSTN") is subject to the then applicable toll charges that are associated with the Plan. Every call to or from Equipment using the Services that originates or terminates with a SIP service provider that is not affiliated or associated with ACD will also count as PSTN minutes and be subject to the then applicable toll charges that are associated with the Plan. Calls to a phone number outside the United States to a non-ACD account or IP partner will be charged at the current rates published on the ACD web site. The duration of each call is to be calculated in thirty (6) second increments and rounded up to the nearest thirty (6) second increment with minimum call duration of thirty (30) seconds.
7. CHARGES FOR DIRECTORY CALLS. ACD will charge 99 cents for each call made to ACD directory assistance.
8. TELEPHONE NUMBER. Any telephone number provided by ACD ("Number") to the End User shall be leased and not sold. End User is not to use the Number with any other device other than the Equipment without the express written permission of ACD. ACD reserves the right to change, cancel or move the Number at its sole discretion.
9. LOST, STOLEN, ALTERED OR BROKEN EQUIPMENT. End User shall not modify the Equipment in any way without the express written permission of ACD. End User shall not use the Equipment except with the Services provided hereunder. Except as otherwise provided for hereunder, End User is responsible for all lost, stolen or broken Equipment and may be required to purchase a replacement to continue service. Replacement charges will be based on the fair retail price of equipment, plus applicable shipping costs and taxes. End Users who have existing Equipment belonging to ACD shall pay ACD for any such lost, stolen or broken Equipment in an amount equal to the retail price of the Equipment less amounts End User had previously paid specifically for said Equipment. End User shall immediately notify ACD of any lost or stolen Equipment and shall cooperate with ACD in all reasonable aspects to eliminate actual or potential unauthorized use of the Equipment. At ACD's sole option, failure to report lost or stolen equipment in a timely manner will cause End User to be responsible for all service fees accrued until the time that ACD is informed of the loss or theft and can effect a termination of the Services.
10. PROHIBITED USES. Any use of the Services or any other action that causes a disruption in the network integrity of ACD or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services. End User understands that neither ACD nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. End User agrees that it will NOT use the Services in ways that violate laws, infringe the rights of others, or interfere with the users, services, or equipment of the network. End User agrees and represents that it is purchasing the Services and/or the Equipment for its own internal use only, and shall not resell, transfer or make a charge for the Services or the Equipment without the advance express written permission of ACD. ACD's Service Plans for residential subscribers that offer unlimited minutes of local calls ("Unlimited local Plans") are for the reasonable personal residential use of End User only. Such use shall not include certain activities including, but not limited to, any autodialing, continuous or extensive call forwarding, continuous connectivity, fax broadcast, fax blasting, telemarketing or any other activity that would be inconsistent with personal, residential and reasonable business use patterns. End User agrees to notify ACD if usage of the Unlimited local Plans changes from personal residential use. ACD reserves the right to immediately terminate or modify the Services of any End User using Unlimited local Plans if ACD determines, in its sole discretion, that End User is not using the Unlimited local Plans for End User's reasonable personal residential use. Any usage in excess of five thousand (5,000) minutes per month shall be presumed to be inconsistent with these restrictions and shall be subject to the conditions above. The ACD Plans are limited to persons whose primary residence is within the United States.
11. COMMERCIAL USE. End User agrees that the use of the Service and/or Equipment for activities other than reasonable personal residential (unless otherwise contracted as commercial service) use will obligate End User to pay ACD’s higher rates for business services for all periods of such use, including past periods, in which End User used the Service for commercial or governmental purposes. ACD reserves the right to immediately terminate or modify the Service, if ACD determines, in its sole discretion that End User's use of the Service is for non-residential or commercial use. If End User subscribes to ACD Virtual Office or another Business Plan, the Service and Equipment are provided to End User as a small business user. This means that End User is not to resell or transfer the service or device to any other person for any purpose, without express written permission from ACD in advance. End User agrees that ACD Business Plans do not confer the right to use the service for auto-dialing, continuous or extensive call forwarding, telemarketing (including without limitation charitable or political solicitation or polling), fax broadcasting or fax blasting. ACD reserves the right to immediately terminate or modify the Service, if ACD determines, in its sole discretion, that End User's Service is being used for any of the aforementioned activities.
12. CHANGES TO THE AGREEMENT, SERVICES OR PLAN. ACD reserves the right to make changes to the terms and conditions of this Agreement, the Services and/or the Plan ("Change of Service"). In the event of a Change of Service, ACD will post to the Web Site currently located at http://www.ACD.net/voip/termsandconditions.htm. Notice will be considered received by End Users and such changes will become binding to End Users, on the date the changes are posted to the Web Site (Change Date), and no additional notice will be required. ACD will post all changes thirty (30) days in advance of the effective date of change. If End User does not send ACD notification of their desire to terminate this agreement or uses the Service after the Change Date, End User is deemed to have accepted and consented to the change of terms and conditions of the Service. If End User does not consent to the change of service and terminates this agreement, End User will be responsible for any sums due hereunder in addition to any applicable Termination Fee. End User may request a Plan change at anytime, subject to any applicable change of service fee and additional terms and conditions. In no case will an activation fee be credited after thirty (30) days from the initial purchase of the Services for a Plan change or cancellation. For a Plan change to a plan that requires a purchase of the Equipment, an equipment charge will apply. ACD may decrease prices for the Services or Plans without providing any prior notice to End User.
13. TERMINATION. End User agrees to provide ACD with ten (10) days notice of termination. End User shall be responsible for the full monthly service fee for the month during which the notice of termination of service is provided to ACD. In accordance with section 5.f, a termination fee may apply. ACD reserves the right, at its sole discretion, to suspend, terminate or change the Services without advanced notice for any reason, including without limitation, misuse of the Services in any way, End User's breach of this Agreement, End User's failure to pay any sum due hereunder, suspected fraud or other activity by End User that adversely affects the Services, ACD, ACD's network or other End User's use of the Services. ACD reserves the right to determine, at its sole discretion, what constitutes misuse of the Services and End User agrees that ACD's determination is final and binding on End User. ACD may require an activation fee to change or resume a terminated or suspended account.
14. PRIVACY. ACD utilizes the public Internet and third party networks to provide voice and video communication services. Accordingly, ACD cannot guarantee the security of voice and video communications of End User. ACD is committed to respecting an End User's privacy. Once End User chooses to provide personally identifiable information, it will only be used in the context of the End User's relationship with ACD. ACD will not sell, rent, or lease End Users' personally identifiable information to others. Unless required by law or subpoena or if End User's prior permission is obtained, ACD will only share the personal data End User provides with other ACD entities and/or business partners that are acting on ACD's behalf to complete the activities described herein. Such ACD entities and/or national or international business partners are governed by ACD's privacy policies with respect to the use of this data. ACD reserves the right to use personally identifiable information to investigate and help prevent potentially unlawful activity that threatens either ACD or any company affiliated with ACD. Moreover, upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, ACD may disclose personally identifiable information.
15. RETURNS AND ADJUSTMENTS. No Equipment may be returned by End User for any reason without prior approval of ACD. All returns shall be in original packaging or equivalent. End User shall be responsible for all costs related to shipping to ACD any Equipment that is being returned. Any Equipment returned to ACD without prior authorization for its return or proper packaging may be refused. In order to obtain an appropriate refund, upon cancellation End User must immediately obtain a return material authorization number from ACD, return to ACD any Equipment provided hereunder, undamaged and in good working condition, in its original packaging and with its original content or otherwise will be immediately responsible for paying to ACD an amount equal to the fair retail price of the equipment minus any payments End User had previously paid specifically for said Equipment.
16. TECHNICAL SUPPORT. ACD provides technical support to End Users via telephone and e-mail for the Services and the Equipment provided hereunder. Support for other applications and uses is not provided or implied.
17. BREACH. In the event of End User's breach of the terms of the Agreement, including without limitation, failure to pay any sum due hereunder, End User shall reimburse ACD for all attorney, court, collection and other costs incurred by ACD in the enforcement of ACD's rights hereunder and ACD may keep any deposits or other payments made by End User.
18. INDEMNIFICATION. End User agrees to defend, indemnify and hold ACD, its affiliates and its vendors harmless from any claims or damages relating to this Agreement.
19. DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL ACD OR ITS VENDORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE SERVICES OR PRODUCTS PROVIDED HEREUNDER WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF ACD OR ITS VENDORS OR OTHERWISE.
20. WARRANTY AND LIABILITY LIMITATIONS. ACD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER ACD NOR ITS VENDORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO ACD'S OR END USER'S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF END USER'S 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 ACD'S OR ITS VENDORS? NEGLIGENCE. ANY CLAIM AGAINST ACD MUST BE MADE WITHIN 90 DAYS OF THE EVENT OF THE CLAIM OR 90 DAYS FROM THE TERMINATION OF SERVICE, WHICHEVER IS EARLIER AND ACD HAS NO LIABILITY THEREAFTER. ACD'S LIABILITY IS LIMITED TO REPAIR, REPLACEMENT, CREDIT OR REFUND. ACD MAY ELECT TO PROVIDE A REFUND IN LIEU OF CREDIT, REPLACEMENT OR REPAIR. ALL WARRANTIES COVER ONLY DEFECTS ARISING UNDER NORMAL USE AND DO NOT INCLUDE MALFUNCTIONS OR FAILURES RESULTING FROM MISUSE, ABUSE, NEGLECT, ALTERATION, MODIFICATION, IMPROPER INSTALLATION, OR REPAIRS BY ANYONE OTHER THAN ACD. IN NO EVENT SHALL ACD'S TOTAL LIABILITY HEREUNDER EXCEED THE AMOUNTS PAID BY END USER TO ACD IN THE PRIOR TWELVE (12) MONTHS FROM DATE OF CLAIM.
21. EXPORT COMPLIANCE. End User agrees to comply with U. S. Export laws concerning the transmission of technical data and other regulated materials via the Services. End User agrees to comply with applicable local, state and federal regulations governing the locality in which the Equipment and Services are used.
22. PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE. Upon expiration, cancellation or termination of the Services, End User shall relinquish and discontinue use of any Numbers, voice mail access numbers and/or web portals assigned to End User by ACD or its vendors.
23. NUMBER TRANSFER ON TERMINATION. Upon termination of the Service, ACD may, at its sole discretion, release a telephone number that was ported in from a previous service provider to ACD by you and used in connection with your Service provisioned by ACD to your new service provider, if such new service provider is able to accept such number, and provided that (i) your account has been terminated;  (ii) your ACD account is completely current including payment for all charges and disconnect fees; and (iii) you request the transfer upon terminating your account. 
24. COPYRIGHT, TRADEMARK, UNAUTHORIZED USAGE OF DEVISE, SOFTWARE, or FIRMWARE. The Service and Device and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on ACD's website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions.  All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") of ACD are and shall remain the exclusive property of ACD and nothing in this Agreement shall grant you the right or license to use any of such marks.  You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement.  You expressly agree that the Device is exclusively for use in connection with the Service and that ACD will not provide any passwords, codes or other information or assistance that would enable you to use the Device for any other purpose.  If you decide to use the Service through an interface device not provided by ACD, which ACD reserves the right to prohibit in particular cases or generally, you warrant and represent that you possess all required rights, including software and/or firmware licenses, to use that interface device with the Service and you will indemnify and hold harmless ACD against any and all liability arising out of your use of such interface device with the Service.  You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
25. NOTICES. ACD communicates with End Users primarily via email. Notices to End User shall be sent to the email address specified by End User at the time of registration for the Services or as subsequently specified by End User ("Email Address"). End User is responsible for notifying ACD of any Email Address changes. End User agrees that sending a message to the Email Address is the agreed upon means of providing notification. Email is used to communicate important information about the Services, billing, changes to the Services and other information. The information is time-sensitive in nature. It is required that End User read any email sent to the Email Address in a timely manner in order to avoid any potential interruption in the Services provided hereunder.
26. FORCE MAJEURE (EVENTS BEYOND OUR CONTROL). ACD 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 ACD as may occur in spite of ACD's best efforts.
27. GOVERNING LAW / RESOLUTION OF DISPUTES.

a.      Mandatory Arbitration. Any dispute or claim between End User and ACD arising out of or relating to the Service or Equipment provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules . The arbitration shall take place in Lansing, Michigan and shall be conducted in English. The arbitrator's decision shall follow the plain meaning of the relevant documents, and shall be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and Customer will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. CUSTOMER ACKNOWLEDGES THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.

b.      Governing Law. The Agreement and the relationship between you and ACD shall be governed by the laws of the State of Michigan without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 26.1, End User and ACD agree to submit to the personal and exclusive jurisdiction of the courts located within the state of Michigan, to the extent possible in Santa Clara County, and waive any objection as to venue or inconvenient forum. The failure of ACD 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. End User agrees 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.

28. ENTIRE AGREEMENT. The terms and conditions of this Agreement constitute the entire agreement with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to the Services. This agreement shall be binding upon the heirs, successors, and assigns of ACD and End User.