1 THIS AGREEMENT
2 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 Provider, 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 Provider. No waiver or amendment to this contract or these terms and conditions shall be binding on Provider, unless made in writing expressly stating that it is such a waiver or amendment and signed by a duly authorized representative of Provider.
3.1 MONTHLY SUBSCRIBERS
Unless otherwise indicated, the Service is month-to-month with no term. The term of this Agreement (“Term”) begins on the date that End-User purchases Services and continues monthly for the duration of the service period. At the end of each month, the Term is automatically renewed for the following month unless End-User provides Provider, 30 days prior to the end of the current Term, notification of intention to terminate the service. End-User agrees to pay for Services for the duration of the Term. Expiration of the Term does not alleviate End-User of responsibility for paying all unpaid, accrued charges due hereunder.
3.2 PREPAY SUBSCRIBERS
A Prepay Subscriber pays upfront for a specified term (“Service Term”), including initial taxes and fees. The length of the Service Term is determined by the service package selected by the Subscriber during the sign-up or renewal process. If the Service Term is longer than twelve (12) months, additional taxes and fees will be charged after the initial twelve (12) months have passed. Following the initial Service Term, a Prepay Subscriber will automatically become a Monthly Subscriber.
4 911 EMERGENCY DIALING
4.1 911 DIALING
ACVoIP uses the same national 911 network that all traditional telephone companies use. Be aware that 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to utilizing the Service, including 911 Dialing. Service outages or suspensions or disconnections of service by your broadband provider or ISP will prevent all Service, including 911 Dialing, from functioning.
Your ISP, broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. If you suspect this has happened to you, you should alert us to this situation, and we will work with you to attempt to resolve the issue. During the period that the ports are being blocked or your Service is impeded, your Service, including 911 Dialing, may not function. You acknowledge that ACVoIP is not responsible for the blocking of ports by any third party or any other impediment to your usage of the Service, and any loss of Service, including 911 Dialing, which may result. In the event you lose service as a result of blocking of ports or any other impediment to your usage of the Service, you will continue to be responsible for payment of the Service charges unless and until you disconnect the Service in accordance with this Agreement.
If there is a Service outage for any reason, such outage will prevent all Service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement. By using this Service, you authorize us to disclose your name and address to third-parties involved with providing 911 Dialing to you, including, without limitation, call routers, call centers and local emergency centers.
4.2 REGISTRATION OF PHYSICAL LOCATION REQUIRED
For each phone number that you use for the Service, you must register with ACVoIP the physical location where you will be using the Service with that phone number. When you move the Device to another location, you must register your new location. If you do not register your new location, any call you make using the 911 Dialing feature may be sent to an emergency center near your old address. You may update a location by logging on to your online account or contacting the ACVoIP support center. For purposes of 911 Dialing, you may only register one location at a time for each phone line.
4.3 ALTERNATE 911 ARRANGEMENTS.
If you are not comfortable with the limitations of the 911 Dialing service, you should make arrangements for an alternate means of accessing traditional 911 or E911 services or disconnecting the Service. You understand that additional arrangements should be made to access emergency services. To access emergency services, you acknowledge and accept that it is your sole responsibility to purchase, with a third-party separately from ACVoIP, traditional wireless or wireline telephone service that offers access to emergency services. By agreeing to these terms of service and by your use of the Service, you acknowledge and accept that the Device/Service may not support or provide emergency service at all times. You represent and warrant to ACVoIP that you already have made additional arrangements with a third party to access emergency services.
4.4 Network Congestion
Reduced Speed for Routing or Answering 911 Dialing Calls. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Service as compared to traditional 911 dialing over traditional public telephone networks.
4.5 DISCLAIMER OF LIABILITY AND INDEMNIFICATION
We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. We expressly disclaim any and all responsibility for the conduct of such local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither ACVoIP nor any of its officers, directors, members or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 911 Dialing service unless such claims or causes of action arise from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless ACVoIP, its officers, directors, members, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel.
4.6 NOTIFY ALL USERS
You should inform all household residents, guests and other third persons who may be present at the physical location where you utilize the Service of the important differences in and limitations of 911 Dialing as compared with basic 911 or E911. The documentation that accompanies each Device will include a sticker concerning the potential non-availability of basic 911 or E911 (the “911 Sticker”). It is your responsibility to place the 911 Sticker on each Device that you use with the Service. If you did not receive a 911 Sticker with your Device, or you require additional 911 Stickers, please contact our customer care department.
4.7 UNPROVISIONED 911 CALLS
For each billing cycle, if a Subscriber places one or more 911 calls but does not have a valid 911 address on file with ACVoIP, ACVoIP shall charge $175 for each call placed. These charges are non-negotiable and Subscriber waives the right to dispute these valid charges.
ACVoIP will provide you with digital phone service, subject to the terms and conditions set forth herein (the “Service”). We recommend waiting until the Service is installed and tested for a few weeks before assuming that the Service will be available and of good quality.
5.1 0+ CALLING; MAY NOT SUPPORT X11 CALLING
ACVoIP’s Service does not support 0+ calling (including without limitation collect, third party billing or calling card calling). ACVoIP’s Service may not support 311, 511 and/or other x11 (other than 911) services in one or more (or all) service areas.
5.2 LIMITATIONS ON CALLING PLANS
Calling plans do not provide for free calls to “Premium” calling services which shall include but not be limited to services such as 700#, 900#, International Calls, Operator Assisted and other such.
6 SUBSCRIBER INFORMATION
You acknowledge that you are eighteen (18) years of age or older, and you agree that you have the legal authority to enter into this Agreement and affirm that the information you supply to us is correct and complete. You understand that ACVoIP relies on the information you supply and that providing false or incorrect information may result in Service delays or the suspension or termination of your Service. You agree to promptly notify ACVoIP whenever your personal or billing information changes, including without limitation, your name, address, telephone number, and credit card number and expiration date, if applicable.
7 GENERAL PRICING AND FEES
Upon purchase of the Service and delivery of the equipment, End-User must provide a valid form of payment. End-User authorizes Provider to charge the End-User for all charges arising from End-User’s use of the Services. End-User agrees to notify Provider of any change to the including, but not limited to, changes in account number, expiration date or billing address. Provider shall not be responsible for any charges made by the credit card issuer or bank to End-User’s account for exceeding credit limit, insufficient funds or other reasons.
There is no money back guarantee for any Services unless specifically written in a special one-time promotion. There are no pro-rated refunds for unused time. All services will be charged via automatic credit card withdrawal unless otherwise stated or agreed to by ACVoIP. End-User acknowledges and agrees that the Services are provided “as is, where is.” Credit allowances are under the sole discretion of Provider.
From time to time in its sole discretion, Provider may offer promotions or discounts on 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.
7.1 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 Provider. End-User will provide such credit information or assurance as is requested by Provider at any time. Provider, in its sole discretion and judgment, may discontinue credit at any time without notice.
Provider will send or make available to End-User a monthly on-line invoice for the Services and bill all charges invoiced to End-User’s account to the End-User. Such charges shall include activation fees, monthly service fees, shipping charges, disconnection 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. Provider reserves the right to charge the End-User for toll charges at any time if End-User’s cumulative toll charges for the current month exceed fifty dollars ($50.00). Billing for monthly service fees commences upon purchase of 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. Thereafter, billing for monthly phone services will occur in advance of the month the Services are provided, whereas billing for any toll or long-distance charges will occur in arrears.
If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment or declined End-User credit card charges, Provider may suspend or terminate the Services and all accrued charges shall be immediately due. Provider may charge End-User interest a $15 late fee per line if payment is not received within 21 days of invoice. If End-User fails to pay Provider within 60 days of billing date, Provider has the right to disconnect the Services without notice and/or send to collection. Upon disconnect, End-User agrees to immediately pay all amounts owed to Provider. Provider reserves the right to charge End-User a $50.00 re-establishment of service fee. Upon disconnect a valid credit or debit card will be required to reinstate service. ACVoIP will invoice and charge Subscribers monthly. Subscribers are responsible for paying monthly subscription fees while Services are suspended due to non-payment. In the event that an account is terminated for any reason with an outstanding balance, ACVoIP will continue to charge the payment method on file for the outstanding balance until all balances are fully resolved. Any account which goes into collection status will be transferred to a collection agency and incur a twenty-five dollar ($25.00) processing fee and all other applicable fees and charges.
7.4 OTHER CHARGES
You are responsible for all charges attributable to your account incurred with respect to the Services. You agree to notify ACVoIP immediately, in writing or by calling the ACVoIP (587)885-1060, if you become aware at any time that Services are being stolen or fraudulently used. You are responsible for all usage charges attributable to your account, even if incurred as the result of fraudulent or unauthorized use by third parties, until you report the theft or fraudulent use of the Services. You are solely responsible for securing all passwords and access numbers to guard against and prevent unauthorized access to Services by third parties. ACVoIP, may, but is not obligated to, detect or report unauthorized use or fraudulent use of Services. You agree to save, defend, indemnify and hold ACVoIP harmless from all claims, costs, liabilities and damages arising out of such fraudulent use.
7.4.1 Long Distance/International Calling
Long Distance/International calling is enabled by default. Customers may enable or disable it at anytime advising customer service. As applicable, domestic long distance calls are billed in six (6) second increments. As applicable, calls to a phone number outside the United States and Canada to a non-Provider account will be charged at the current rates published on the Provider related website. The duration of each call from Canada to international destination is to be calculated in sixty (60) second increments after a sixty (60) second minimum. As applicable, calls to Mexico are rounded to the minute.
7.4.2 Unlimited Usage Plans
Only residential addresses qualify for residential pricing. If a residential line exceeds 4,000 outbound minutes per month, from your bill date, within the continental US and Canada, ACVoIP may notify the client and bill for excess minutes at $0.04 per minute. Studies show that the average customer uses about 1000 minutes per month. Provider reserves the right to review usage of unlimited minute usage plans to ensure that there is no End-User abuse of such plans. End-User agrees to use unlimited minute plans for normal voice calls and will not employ methods or devices to take advantage of unlimited plans by using service excessively or for means not intended by Provider. Provider may terminate service immediately if, in its sole discretion, End-User is abusively using the unlimited minute plan.
7.4.3 ACVoIP Virtual PBX
Business lines qualify for advanced business features such as auto attendant, music on hold, and toll free numbers. This plan is designed for a small business. Each business line is allowed 4000 outbound minutes per month, from your bill date, within the continental US and Canada. If a business line exceeds 4000 outbound minutes, ACVoIP may notify the business and bill for excess minutes at $0.02 per minute.
7.5 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.
ACVoIP provides the option to lease the Subscriber either a new or used ATA (Phone Adapter), combination ATA and router, or other equipment for using the Service. All used equipment is provided on as-is basis and you agree to hold ACVoIP harmless for any defective equipment. Defective equipment, including the original power supply, must be returned to ACVoIP within 30 days of receiving the replacement device. In the event of Service termination by either Subscriber or ACVoIP, Subscriber must return to ACVoIP all leased equipment (ATAs, routers, phones, etc) , including the original power supplies, in undamaged, usable condition at Subscriber’s expense within thirty (30) days of termination. In the event Subscriber does not return the leased hardware to ACVoIP in working condition within such thirty (30) day period, Subscriber must pay ninety-nine dollars and ninety cents ($99.90) plus applicable taxes per unreturned device to purchase the ATA(s) or combination ATA and router(s) from ACVoIP. In the event Subscriber does not return all original power supplies to ACVoIP, Subscriber must pay a ten dollar ($10.00) Replacement Fee per unreturned power supply at the time the hardware is checked-in. Returned equipment check-in can take up to 3 business days from the date of receipt. Hardware purchased at a retail location or directly from ACVoIP is owned by the customer and is exempt from the hardware return policy.
8.1 SUBSCRIBER SUPPLIED EQUIPMENT
ACVoIP provides the option for Subscribers to supply their own ATA (Phone Adapter). If a Subscriber supplies their own ATA, the Subscriber assumes the risk of service incompatibility. Incompatible Subscriber ATAs or other Subscriber equipment shall not relieve Subscribers from any of their obligations under this Agreement while troubleshooting defective or incompatible equipment even if Subscriber’s Service is down during such periods of troubleshooting. ACVoIP reserves the right to alter the software on Subscriber’s ATA in order to guarantee compatibility with ACVoIP’s service. Any device used with ACVoIP’s service must not be locked or currently provisioned to any other provider and you must have the admin password for said device. Any device received from another VoIP provider will most likely NOT work due to this restriction.
8.2 EQUIPMENT REPLACEMENT
If any ACVoIP supplied equipment appears to be malfunctioning, the Subscriber must contact Technical Support and work with them to determine if the device needs replacement. Only a Technical Support representative has the ability to determine if a device is in need of replacement. If a device is determined to have malfunctioned due to manufacturer defect, a free replacement will be provided at ACVoIP’s expense. If a device is determined to have malfunctioned for any other reason, including but not limited to incorrect power supply, customer negligence, and damage from house wiring, Subscriber must pay a $49.95 damaged device fee.
8.3 SIP CREDENTIALS
Residential Subscribers may choose to have their SIP Credentials enabled. To enable SIP Credentials, Subscriber must understand and agree that ACVoIP will not offer any technical support for any Subscriber device(s) using hand-configured credentials. ACVoIP will continue to offer normal support for all auto-provisioning devices, including ACVoIP supplied phone adapters, softphones, zippyphones, BYOD devices that use ACVoIP’s auto provisioning system, etc. If a Subscriber is unable to configure their device(s) appropriately, SIP Credentials must be disabled before Technical Support will be provided. Subscribers using SIP Credentials have a limit of 4 registrations and 2 concurrent calls. ACVoIP makes no assertions regarding which devices may be properly configured for use on the ACVoIP network and any account may be disabled at any time if, in ACVoIP’s belief, Subscriber’s device is causing issues on or with the ACVoIP network.
9.1 TERMINATION BY SUBSCRIBER
Subscriber may terminate this Agreement at any time for any reason by providing ACVoIP with a thirty (30) day written notice in the form of a valid written termination request and paying all fees and other charges accrued or otherwise payable under the terms of this Agreement. Initial charges, including first month service and shipping and handling charges are non-refundable immediately upon submission of an order. Such thirty (30) day period begins on the date on which ACVoIP receives Subscriber’s valid written termination request. A Monthly Subscriber’s termination will be effective on the later of (a) the end of last day of the calendar month during which such thirty (30) day period ends (e.g., a valid written termination request received by ACVoIP any time during January will result in termination effective at the end of February) or (b) the end of last day of the calendar month requested by the Monthly Subscriber. A Contract Subscriber’s termination, if received by ACVoIP at least thirty (30) days prior to the end of their Contract Term, will be effective at the end of such Contract Term, unless such Contract Subscriber requests an earlier date. Notwithstanding the foregoing provisions of this section 8, if ACVoIP receives a written termination request from a Subscriber, ACVoIP may, in its sole discretion, terminate this Agreement on a date earlier than the date otherwise prescribed by this section 8. If this Agreement is terminated prior to the end of a Contract Subscriber’s Contract Term, such Contract Subscriber must pay, in addition to all fees and other charges accrued or otherwise payable under the terms of this Agreement, an early termination fee in the amount of ninety-nine dollars($99.00) (“Early Termination Fee”) or the remainder of the contract amount, whichever is less. In the event a Contract Subscriber terminates this Agreement prior to the end of their Contract Term because of a service-related problem not caused by the Subscriber that ACVoIP has failed to cure after what ACVoIP determines in its sole discretion to be a reasonable amount of time based on the circumstances, the Subscriber is entitled to a waiver of the Early Termination Fee. For such waiver to apply, the reason for the waiver stated above must have occurred before termination and the Subscriber must report such reason for termination to ACVoIP in the Subscriber’s valid written termination request. ACVoIP must in turn be given the opportunity to resolve the problem and the Subscriber must be willing and able to troubleshoot with ACVoIP. ACVoIP does not monitor Subscriber accounts for activity, and absence of activity or cancellation of a Subscriber’s Internet service will never constitute a termination request. A written termination request is valid only if it includes your VOIP phone number, main username, date you wish the service to be cancelled and is submitted using one of the following approved methods:
Via E-Mail to: firstname.lastname@example.org
Via fax to: (587) 885-1061
Via mail to: ACVoIP
Attn: Cancellation Department
736 Deercroft Way SE
Calgary, AB T2J5X3
9.2 TERMINATION BY ACVOIP
If, in ACVoIP’s sole and absolute discretion, (a) a Subscriber is in breach of any of the terms of this Agreement (including but not limited to the Acceptable Use Policy); (b) a Subscriber’s use of the Service is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Service, ACVoIP’s servers or other equipment, or the use and enjoyment of other users; (c) a Subscriber acts in an abusive or menacing manner when dealing with ACVoIP’s technical support staff, customer service staff or any other ACVoIP employees or representatives; (d) ACVoIP receives an order from a court of competent jurisdiction to terminate a Subscriber’s Service; or (e) ACVoIP for any reason ceases to offer the Service, then ACVoIP at its sole election may terminate or suspend such Subscriber’s Service immediately without notice. For a termination in accordance with this paragraph, Subscriber remains liable for all unpaid fees and other charges accrued or otherwise payable under the terms of this Agreement, including without limitation the equipment charges set forth herein, if applicable.
9.3 TERMINATED SUBSCRIBER
ACVoIP, in its sole and absolute discretion may refuse to accept a Subscriber’s application for renewal or re-subscription following a termination or suspension of such Subscriber’s use of the Service. If a Subscriber’s Service is terminated for any reason, such Subscriber, upon approval by ACVoIP, may enter into a new Agreement and must pay a new setup or activation fee as provided above. Upon the termination of a Subscriber’s use of the Service, ACVoIP has the right to immediately delete all data, files and other information stored in or for the Subscriber’s account without further notice to the Subscriber.
9.4 NUMBER TRANSFER ON SERVICE TERMINATION
Upon termination of the Service, ACVoIP will release a telephone number that was ported in from a previous service provider to ACVoIP by you and used in connection with your Service provisioned by ACVoIP 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 ACVoIP account is current including payment for all charges and disconnect fees; and (iii) you request the transfer upon terminating your account.
10 TECHNICAL SUPPORT
ACVoIP assumes that all Subscribers possess a basic understanding of their computers and their limitations. ACVoIP will not train you in basic computer skills (e.g., deleting files or creating directories). Technical support is intended to facilitate the setup of your properly functioning computer system for access to our services. Your computer must have an active working connection to the internet before any technical support will be dispensed. If you are having problems connecting to the internet, you will need to contact your Internet Service Provider (ISP) for assistance getting connected first. Our technical support staff is not trained to, has no obligation to, and will not assist you in installing and/or troubleshooting modems, network cards, routers, complex network configurations or telephone lines, neither will they provide any technical assistance or support for any third party Software. The scope of support is limited to a single line analog telephone connected directly to our device. ACVoIP is not responsible for connection problems due to a computer that is infected with viruses, spyware or malware. It is the Subscriber’s responsibility to initiate and be available for technical support during ACVoIP’s hours of operation. If a Subscriber wishes to utilize ACVoIP’s technical support, the Subscriber must be available at the same location as the hardware to help troubleshoot the connection or computer setup. ACVoIP assumes no obligation to provide support services for any third party products or services, including but not limited to the quality of the connection provided by the Internet Service Provider (ISP) or for problems with our service caused by third party products or services. It is the responsibility of the subscriber to troubleshoot any issues with third party products or services with the provider of that service. ACVoIP does not provide on-site technical support.
10.1 INCOMPATIBILITY WITH OTHER SERVICES
• (a) Non-Voice Equipment Limitations. You acknowledge that our service may not be compatible with all non-voice communications equipment, including but not limited to home security systems, TTY, medical monitoring equipment, TIVO, satellite television systems, PBX, Centrex, other private telephone networks, fax machines, and dial-up modems. You waive any claim against ACVoIP for interference with or disruption of these services and equipment, as well as any claim that ACVoIP is responsible for any disruption to your business, if applicable.
• (b) Hardware Compatibility Issues. There may be other internet services or hardware with which our service may be incompatible, including but not limited to: Fixed Wireless, Satellite, and Power over Ethernet connections. Some providers of broadband service may provide modems that prevent the transmission of communications using our service. We do not warrant that our services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of our service with any particular broadband service.
11 CHANGES TO THE AGREEMENT, SERVICES OR PLAN
ACVoIP may revise the terms and conditions of this Agreement from time to time (including any of the policies which may be applicable to usage of the Service) by posting such revisions to our website at http://acvoip.ca/terms-of-service/ You agree to visit this page and the links therein periodically to be aware of and review any such revisions. Revisions to any terms and conditions shall be effective upon posting. By continuing to use the Service after revisions are in effect, a Subscriber accepts and agrees to the revisions and to abide by them. Any Subscriber who does not agree to the revision(s) must terminate their Service immediately.
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 Disconnection Fee. End-User may request a Plan change at anytime, subject to any applicable change of service fee and additional terms and conditions. For a Plan change to a plan that requires a purchase of the Equipment, an equipment charge may apply. Provider may decrease prices for the Services or Plans without providing any prior notice to End-User.
12 WARRANTIES AND LIMITATIONS OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE, EQUIPMENT AND SOFTWARE SUPPLIED HEREUNDER ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND AS OTHERWISE SPECIFICALLY SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY SOFTWARE OR EQUIPMENT PROVIDED BY ACVoIP (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH SOFTWARE OR EQUIPMENT). ACVoIP (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES FOR THE SERVICE, SOFTWARE AND EQUIPMENT WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, TITLE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE. NO ADVICE OR INFORMATION GIVEN BY ACVoIP OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. USE OF ACVoIP TECHNICAL SUPPORT IS AT YOUR OWN RISK AND IS NOT WARRANTED.
ACVoIP DOES NOT WARRANT OR GUARANTEE THAT VOIP SERVICE CAN BE PROVISIONED TO YOUR LOCATION, OR THAT PROVISIONING WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE, EVEN IF ACVoIP HAS ACCEPTED YOUR ORDER FOR VOIP SERVICE. THE PROVISIONING OF VOIP SERVICE IS SUBJECT TO CIRCUIT AVAILABILITY AND OTHER FACTORS. IN THE EVENT YOUR LINE IS NOT PROVISIONED FOR ANY REASON, NEITHER YOU NOR ACVoIP SHALL HAVE ANY DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT (OTHER THAN YOUR OBLIGATION TO RETURN ANY PROVIDED EQUIPMENT, PURSUANT TO THE TERMS OF THIS AGREEMENT).
ACVoIP DOES NOT WARRANT THAT THE SERVICE, SOFTWARE OR EQUIPMENT PROVIDED BY ACVoIP WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED OR ERROR-FREE. ACVoIP SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE. ACVoIP MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED USING THE SERVICE, THE SOFTWARE, THE EQUIPMENT OR THE INTERNET. YOU EXPRESSLY ASSUME ALL RISK AND RESPONSIBILITY FOR USE OF THE SERVICE, THE SOFTWARE, THE EQUIPMENT AND THE INTERNET GENERALLY. YOU AGREE NOT TO USE THE SERVICE, THE SOFTWARE OR THE EQUIPMENT IN ANY HIGH RISK ACTIVITIES WHERE DAMAGE OR INJURY TO PERSON, PROPERTY, ENVIRONMENT, OR BUSINESS MAY RESULT IF AN ERROR OCCURS.
IN NO EVENT SHALL ACVoIP (OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, PARENT, SUBSIDIARIES, OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE, THE SOFTWARE OR THE EQUIPMENT, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF ACVoIP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
ALL LIMITATIONS AND DISCLAIMERS STATED IN THIS SECTION ALSO APPLY TO ACVoIP’S THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS AS THIRD PARTY BENEFICIARIES OF THIS AGREEMENT.
ANY RIGHTS OR LIMITS STATED HEREIN ARE THE MAXIMUM FOR WHICH ACVoIP (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), ACVoIP’S THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS ARE COLLECTIVELY RESPONSIBLE.
THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
ACVoIP RESERVES THE RIGHT TO PURSUE ANY AND ALL LEGAL AND EQUITABLE CLAIMS AGAINST YOU PERTAINING TO YOUR USE OR MISUSE OF THE SERVICE, THE SOFTWARE OR THE EQUIPMENT, OR FOR YOUR BREACH OF THE AGREEMENT (INCLUDING ANY POLICIES RELATING TO THE SERVICE.)
WITHOUT (A) INCREASING ANY OF THE LIABILITIES OR OTHER OBLIGATIONS ACVoIP (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS ARE OTHERWISE SUBJECT TO PURSUANT TO THIS AGREEMENT OR SUBJECTING ACVoIP (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS TO ANY ADDITIONAL LIABILITIES OR OTHER OBLIGATIONS OR (B) INCREASING ANY OF THE RIGHTS YOU ARE OTHERWISE ENTITLED TO PURSUANT TO THIS AGREEMENT OR PROVIDING YOU WITH ANY ADDITIONAL RIGHTS, THE MAXIMUM AGGREGATE LIABILITY OF ACVoIP (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES AND AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE UNUSED PORTION OF YOUR PREPAID FEES, IF ANY.
You agree to defend, indemnify and hold harmless ACVoIP and its officers, directors, members and employees from and against all liabilities, costs and expenses, including reasonable attorney’s fees, related to or arising from: (a) any violation of applicable laws, regulations or this Agreement by you (or any parties who use your account, with or without your permission, to access the Service); (b) the use of the Service, the Software, the Equipment or the Internet or the placement or transmission of any message, information, software or other materials on the Internet by you (or any parties who use your account, with or without your permission, to access the Service); (c) negligent acts, errors, or omissions by you (or any parties who use your account, with or without your permission, to access the Service); (d) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, except to the extent that such liabilities arise from the active negligence or willful misconduct of the other party; or (e) claims for infringement of any intellectual property rights arising from the use of the Service, the Software, the Equipment or the Internet.
You agree not to assign or otherwise transfer, this Agreement in whole or in part, including the Software or your rights or obligations under it. Any attempt to do so shall be void. ACVoIP may assign all or any part of this Agreement without notice and you agree to make all subsequent payments as directed.
15 DISPUTE RESOLUTION WITH ACVOIP BY BINDING ARBITRATION.
PLEASE READ THIS CAREFULLY AS IT AFFECTS YOUR RIGHTS
Most customer concerns can be resolved quickly and to the customer’s satisfaction by contacting ACVoIP customer care at (587) 885-1060. In the unlikely event that ACVoIP’s customer care department is unable to resolve a complaint you may have to your satisfaction, both parties agree to resolve such disputes through binding arbitration, for claims of $5,000 and greater, or small claims court, in the event the claim is less than $5,000, instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.
16 CHOICE OF LAW
You and ACVoIP agree that the substantive laws of the province of Alberta except to the extent such law is preempted for inconsistent with Federal law, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. In the event of a dispute between us, the law of the province of Alberta at the time the dispute is commenced, whether in litigation or arbitration, shall govern except to the extent that such law is preempted by or inconsistent with applicable Federal law. To the fullest extent permitted by law, you and ACVoIP agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
ACVoIP’s failure at any time to insist upon strict compliance with any of the provisions of this Agreement in any instance shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration clause; if that provision is found to be unenforceable, the arbitration clause (but only the arbitration clause) shall be null and void.
18 THINGS BEYOND ACVOIP’S CONTROL
ACVoIP will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes, of other things we do not control, or an inability to obtain necessary equipment or services.
19 ENTIRE AGREEMENT
This Agreement, including all policies posted on ACVoIP’s website, which are fully incorporated into this Agreement by reference, constitutes the entire agreement between you and ACVoIP with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgements or other documents, written or electronic, are void.
Notices by ACVoIP to you shall be deemed given: (a) when sent to your primary contact email address, (b) when deposited in the Canadian mail addressed to you at the address you have specified in your account options or (c) when hand delivered to your home, as applicable.
21 ACCEPTABLE USE
Subscriber agrees to use the VOIP Service in accordance with ACVoIP’s acceptable use policy (“Acceptable Use Policy”), published at http://acvoip.ca/acceptable-use-policy/ . ACVoIP reserves the right to make changes to the Acceptable Use Policy without notice.
The following are violations of ACVoIP’s Acceptable Use Policy, this may not include all unacceptable uses. For UpToDate information see the website referenced above.
• Illegal Use: As a user of ACVoIP, you agree not to use the service in a manner that violates any local, provincial or federal law.
• Harm to Others: Using the services to harm others, including but not limited to minors.
• Threats & Harassment: You agree not to use the service for abusive, profane, libelous, slanderous, threatening or otherwise harassing calls.
• Fraudulent Activity: Using the service to make or participate in fraudulent activity including financial scams.
• Copyright or Trademark Infringement: Using the service to transmit any material that infringes any copyright, trademark, patent, trade secret, or other propriety rights of a third party.
• Collection of Personal Data: Using the Services to collect, or attempt to collect, personal information about third parties without their knowledge or consent.
• Reselling the Services: Reselling the Services without ACVoIP’s authorization.
• Excessive Use on Residential and Small Business Accounts. Accounts that consistently go over the allowed minutes may be converted to a Business account or be terminated at ACVoIP’s discretion.
• No Business Purpose Whatsoever Shall Be Deemed A Valid Use Of The Residential Account Type: ACVoIP reserves the right to immediately modify your service if we determine, in our sole and absolute discretion, that your use for the Service is, or at any time was, inconsistent with normal Private usage patterns. Utilization of the Service for a business purpose may only be accomplished through ACVoIP’s Business plans.
All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination, cancellation or expiration of this Agreement, including without limitation, those provisions relating to Warranties and Limitation of Liability and Indemnification, shall survive such termination, cancellation or expiration.
23 TRANSFERRING NUMBERS
ACVoIP gives customers the option of transferring telephone numbers to or from our service. If transferring a number away from ACVoIP, it is the customer’s responsibility to cancel their service after the number has successfully transferred. Disconnected telephone numbers are not eligible for transfer to or from our service. Cancelling an order to transfer a telephone number to ACVoIP will require a $100 expedite fee to cancel.
24 CALLER ID SERVICE
ACVoIP sends current Caller ID information with every call placed. For residential customers, Caller ID information is “Last Name, First Name”, with a maximum of 15 characters. For business customers, Caller ID information is the business name, with a maximum of 15 characters. Caller ID information is not customizable. ACVoIP has no control over the information that any terminating telephone company chooses to display. All telephone carriers update their Caller ID information periodically, but many companies do not update as often as ACVoIP sends updated data. If a disparity is found between the information that ACVoIP is sending and the information that a terminating telephone company is displaying, it is the Subscriber’s responsibility to contact the terminating telephone company and request that they display the correct data. ACVoIP is not responsible for errors involving spelling, punctuation, or capitalization of Caller ID information.