These Terms and Conditions shall govern and are incorporated into all Service Agreements, Addendum(s) to Service Agreements and any other contracts or agreements entered into between ACI (“ACI”), and the Customer (the “Parties”).
Some definitions are provided here. Others are provided in the parts of these Terms and Conditions where they are first used.
1.1 “Complete Agreement” is the overall agreement of the Parties regarding the provision of Services. The Complete Agreement is, formed by these Terms and Conditions and any other applicable documents, including any Service Agreement, as described more fully in Paragraph 2 below.
1.2 “Service(s)” or “service(s)” means and includes, but is not limited to, provisioning and/or installing of managed services, Internet access, hosting/hosted services, anti-virus, remote monitoring software, server installation/co-location, hardware/software sales and all related customer support help desk functions as indicated for each section below.
1.3 “Service Agreement” means a shorter document (may be a quote, proposal, and/or separate document labeled Service Agreement) that may or may not be physically or electronically signed by the Customer that describes particular Service(s) being provided. Where a Service Agreement exists, it is part of the Complete Agreement that also includes these Terms and Conditions (“Terms”) and any other applicable documents described in Paragraph 2 below.
1.4 “MSP” or “msp” means Managed Services Provider, a support format for ACI to deliver proactive IT monitoring via RMM and remote support of client systems. “RMM” or “rmm” means Remote Monitoring and Management software that provides two-way communications on a device back to the central Network Control Center (NCC). RMM is capable of communicating various device status as implemented by ACI, and purchased by customer, such as system health, patch updates, remote restarts, asset tracking, analytics, and email alerts.
1.5 “Software” means any computer program or code, software application, and/or any other software provided by ACI to Customer pursuant to this Agreement.
2. PRIORITY OF RIGHTS AND OBLIGATIONS / MULTIPLE DOCUMENTS GOVERNING RELATIONSHIP
2.1 These Terms incorporate by reference the following documents, listed from highest to lowest priority, by which you agree to be bound, and which together make up your Complete Agreement with ACI.
2.1.1 Written Contract. Any written contract document (such as a Service Agreement) that is (i) signed by both you and ACI or (ii) signed by you without changes after being presented to you by ACI, and that is in force and applicable to the Services provided to you during the relevant time frame (“Written Contracts”). Note that some Written Contracts may provide for amendment by means (including website posting) other than by a contract amendment signed by you.
2.1.2 Website Terms. Any service descriptions, price lists, and/or terms and conditions posted on the ACI website (collectively “Website Terms”.) ACI’s website is www.acimsp.com. Note that Website Terms, including pricing, may be amended without notice to you, although they are available for inspection at ACI’s website. If posted on the website, these Terms and Conditions you are now reading are Website Terms. Visit www.acimsp.com/terms.
2.1.3 Internet Click-Through Agreement. Any relevant Internet click-through agreement, also sometimes called “click and accept” and “web-wrap” agreements. Only individuals with authority to accept on behalf of the company should “click through”.
2.1.4 Non-Website Terms. Any terms and conditions statements, service orders or product/service descriptions or other documentation supplied to you that are not in the form of a written contract and are not posted on the ACI website (“Non-Website Terms”).
2.1.5 Pricing on Invoices. If no document listed above supplies applicable pricing, the pricing stated on invoices you have paid without objection shall be deemed correct.
2.2 Conflicts between Documents. In the event of a conflict between a document of higher priority and a document of lower priority, the document with higher priority shall control as the issue on which a conflict exists. Documents with lower priority will supply supplementary terms on issues in which there is not a conflict. In the event of a conflict between two applicable documents of equal priority, the document most specific to the Service or product in question shall control as to the issue on which there is a conflict, and the less specific document will supply supplementary terms on issues on which there is no conflict.
2.3 Multiple Documents Supplying Complementary Terms. Multiple documents may govern a service relationship. For example, one document may supply pricing and service-specific terms and another document may supply general terms and conditions. Documents that relate only to Services you are not purchasing shall not apply to you.
2.4 Expiration of Written Contract. If a Written Contract expires, but service continues on an informal basis, the Written Contract shall no longer automatically have priority over Website Terms, but if the parties continue to do business in conformity with the terms of the expired Written Contract without objection, the terms of the Written Contract shall continue to have such priority until such time as a party actually asserts in writing pricing or other terms that conflict with Website Terms. As an example, ACI may assert conflicting terms by invoicing Customer (by electronic or paper invoice) at pricing different from that in the expired Written Contract.
2.5 Priority of These Terms / Posting of These Terms on ACI’s Website. In resolving any conflicts among documents making up the Complete Agreement, these Terms you are now reading are Website Terms if posted on ACI’s website and Non-Website Terms if not posted on ACI’s website, but supplied to you by some other means. Terms that are posted on an ACI Website are Website Terms, and, like any other Website Terms, may later be amended by ACI by posting on an ACI website (See “Changes to These Terms and Conditions” below), without need to give you additional notice or supply the amendment to you by other means.
3. SERVICES AND EQUIPMENT
3.1 Provision of Services and Equipment by ACI. ACI shall provide the Services to Customer as set forth in these Terms and Conditions, along with any other documents comprising the Complete Agreement with Customer. ACI’s obligations are expressly conditioned upon Customer’s providing (or, if necessary, obtaining from its landlord) permission granting ACI and/or its designated agents, contractors or representatives access to the building phone and internet (demarcation) room and IT closets as necessary in ACI’s judgment to deliver the Services and to install and maintain equipment.
3.2 Required Equipment/Software. Customer understands and agrees that the Service requires certain equipment and/or software that may be provided by Customer, such as but not limited to a router, personal computers and the appropriate operating systems, network switches, a server(s) with the appropriate operating system(s), and wireless access points (the “Customer equipment”), as well as certain equipment and/or software provided by ACI such as but not limited to the Software, an edge access device or router, personal computers with the appropriate operating systems, a server(s) with an appropriate operating system(s), wireless access points (the “ACI equipment”). Customer represents that it owns the Customer Equipment or otherwise has the right to use such equipment in connection with the Service. Customer agrees that ACI is not accountable for the performance of hardware and/or software that is no longer supported by its own manufacturer, and is therefore considered legacy hardware and/or software. ACI will only provide “best effort” to resolve any and all issues arising from or related to said legacy hardware or software provided the following: (i) ACI’s “best efforts” considers industry standards, time constraints and financial burden to determine if and when ACI’s pursuit of solution has become financially inefficient or impractical to pursue and (ii) unless stated otherwise, ACI requires the Customer to keep IT infrastructure up-to-date, as denoted in Section 3.6 below. Should hardware or software in Customer’s IT infrastructure fall out of mainstream support, ACI reserves the right to treat that hardware and software as legacy infrastructure pursuant to the same standards held to equipment that was already out of mainstream support when the Service was first introduced (as when ACI first was introduced to Customer’s IT infrastructure.
3.3 Access to Customer’s Premises. Customer authorizes ACI and its employees, agents, contractors and representatives to enter Customer’s premises (the “Premises”) to install, maintain, inspect, alter, repair and remove the ACI equipment. All such services shall be conducted at a time agreed to with Customer. If Customer is not the owner of the Premises, upon ACI’s request Customer shall supply ACI with the owner’s name and address, evidence that the Customer is authorized to grant access to the Premises on the owner’s behalf, and (if needed) written consent from the owner of the Premises. Customer also grants its consent to ACI to contact such owner for the purpose of entering into one or more Right of Access and/or Site Lease(s). If Customer does not provide access as provided herein, ACI shall, at its option, a) declare the full amount for the entire term due and payable immediately, or b) elect to terminate this agreement.
3.4 Ownership of Equipment. All ACI Equipment and Software shall at all times remain the property of ACI or its designee. Customer may not sell, transfer, lease, encumber or assign all or part of the ACI Equipment or Software, nor shall Customer relocate the ACI Equipment outside the Premises. Customer shall pay to ACI the full manufacturer’s suggested retail price for the replacement of any lost, stolen, unreturned, damaged, sold, transferred, leased, encumbered or assigned ACI Equipment or part thereof, together with any incidental costs incurred by ACI relating to the replacement of the ACI Equipment. Customer hereby authorizes ACI to invoice Customer and Customer agrees to remit payment (total amount due immediately) or be charged such amount to Customer’s Visa, MasterCard, or other credit card, if available to ACI, for any such charges. ACI may, at its option, install new or reconditioned ACI Equipment.
3.5 Back-up Requirements; Limitation of Liability for Loss of Data. The installation, use, inspection, alteration, maintenance, repair or removal of the ACI Equipment and software may result in service outage or potential damage to Customer Equipment. Customer agrees to take all reasonable steps to back-up all existing computer files by copying them to another storage medium prior to such activities. In any event, Customer understands and accepts that ACI SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF THE CUSTOMER’S EQUIPMENT, PERIPHERALS, SOFTWARE OR DATA, WHETHER OR NOT ACI OR ITS AGENTS ARE AT FAULT.
3.6 Non-Recommended Configuration. ACI may inform Customer of the recommended minimum local area network (LAN) topology, including computer hardware and software requirements, if any, (the “Minimum Requirements”) for efficiently operating or utilizing the Service(s). If Customer allows the installation of the Service utilizing software or hardware that does not meet the Minimum Requirements (a “Non-recommended Configuration”), the availability of services may be impacted, and Customer agrees that it shall not be entitled to Customer support, at ACI’s sole discretion, under the terms of the Service Agreement, relating to these non-recommended configuration issues.
3.7 Fraudulent Emails and Downloads. In the event Customer connects the Services to the public internet network, Customer is solely responsible for selection, implementation and maintenance of security features for protection against unauthorized emails and downloads, and ACI shall have no liability therefore. Customer is solely responsible for payment of all charges incurred through use of the Services being provided hereunder. Customer shall indemnify and hold ACI harmless from all costs, expenses, claims or actions arising from fraudulent emails and downloads of any nature carried by means of the Services. Customer shall not be excused from paying ACI for Services provided to Customer or any portion thereof on the basis that fraudulent emails or downloads comprised a corresponding portion of the Services. In the event ACI discovers fraudulent emails or downloads are being made, nothing contained herein shall prohibit ACI from taking immediate action, without notice to Customer that is reasonably necessary to prevent such emails or downloads from taking place. Notwithstanding, it is understood that ACI is under no obligation to investigate the authenticity of emails or downloads charged to Customer’s account and shall not be liable for any fraudulent emails or downloads processed by ACI and billed to Customer’s account.
4. INSTALLATION AND SOFTWARE LICENSES
4.1 Installation Process; ACI and/or its agents may supply ACI hardware/software to be installed within the customer premise as requested to deliver the service(s). Costs associated for the installation of services by ACI and or its agents shall be as ACI set forth in the Complete Agreement, including any additional agreements, appendix or addendum agreed to by the parties. Customer may choose to self-install the software and hardware at customer’s own risk and expense. ACI Technical and Help Desk Support for customer self-installed Equipment, Software, or other services will be charged at the then current prevailing wage for those services.
4.2 File Modification. As part of the installation process, system files on Customer’s network or personal computer(s) may be modified. ACI does not represent, warrant or covenant that such modifications will not disrupt the normal operations of Customer’s network or personal computer(s). For these and other reasons, ACI recommends, and Customer agrees, that Customer will back-up all files in accordance with Section 3.5 above prior to installation of the Service. If Customer does not back-up all existing computer files prior to installation, Customer’s chances of losing data are increased. ACI SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE RESULTING FROM THE ABOVE OR OTHER FILE MODIFICATIONS.
4.3 Viruses/Malware. ACI may run or install third party anti-virus/virus checking, malware detection and other protective software on Customer’s network (Server, Computers, Data Storage Device, etc.) as a function of its managed services offerings. ACI does not represent, warrant nor covenant that the virus check software will detect or correct any or all viruses and related harmful software. If a virus or other harmful feature is detected, and Customer does not authorize ACI to attempt to remove the same, the installation of the service may be discontinued, at ACI’s sole judgment, and the Agreement shall terminate. In addition, software or other content downloaded could contain a virus or other harmful feature, and it is Customer’s sole responsibility to take appropriate precautions to protect Customer’s network from damage to its software, files and data. ACI SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY SOFTWARE, FILES, OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE.
4.4.1 Non-exclusive License. If Software of any kind is provided by ACI, ACI grants to Customer a limited, non-exclusive license to use the Software, in object code form only, solely for the purpose of connecting Customer’s network or computer(s) to the Services. This license will permit such use by
Customer and any person authorized by Customer to use the Services, provided that Customer shall be responsible for all uses of the Services as provided in the Agreement. This license will commence upon ACI’s acceptance of Customer’s Agreement for the Service and will terminate immediately upon the expiration or termination of the Agreement for any reason. Customer will return to ACI or destroy all Software, and any related written material, together with any copies, as instructed by ACI, promptly upon the expiration or termination of the Agreement for any reason.
4.4.2 Copies. Customer may make a single copy of the Software solely for back-up purposes, provided that such copy contains the same copyright notices and proprietary markings as the original Software. Customer cannot engage in, nor 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, all of which are prohibited.
4.4.3 End User Licenses. Customer agrees to comply with the terms and conditions of all end user license agreements accompanying any software or plug-ins to such software distributed in connection with the Service. All end user licenses shall immediately terminate on the date that the Service expires or is otherwise terminated.
5.1 Fixed Monthly Service Fees. The cost for Services requiring a fixed monthly fee shall be as stated in the Service Agreement and shall be payable monthly, in advance, plus all applicable taxes and fees (collectively, the “Fixed Service Fee(s)”). The Fixed Service Fee for the first month of Service shall be due and payable prior to installation of Service and if commencement of Service occurs on other than the first calendar day of the month then the Fixed Service Fee will be prorated by the number of calendar days remaining in the month. Thereafter, the Fixed Service Fee is due and payable in advance on the first day of each month and shall be considered late if not received by ACI by the tenth calendar day of each month. Upon the expiration of the Initial Term or Agreed Renewal Term, Fixed Service Fees are subject to change by ACI in the same manner as Variable Monthly Usage Fees, as discussed below in section 5.2.
5.2 Variable Monthly Usage Fees. The cost for Services based on the usage by Customer and other variable factors shall be computed at the rates stated in the Service Agreement and shall be payable monthly, using a cut-off date selected by ACI, in arrears, plus all applicable taxes and fees (collectively, the “Usage Fee(s)”). The Services Agreement or other Written Contract Document shall be referenced to determine which rates are subject to change during the Initial Term or an Agreed Renewal Term (see Paragraph 8). If the Services Agreement or other Written Contract does not specify whether a rate is subject to change during the Initial Term or Agreed Renewal Term, rates for services ACI set forth in the Service Agreement shall be valid for the Initial Term only, and rates for these variable services, whether indicated on the Services Agreement or not, will then be subject to change at any time thereafter by ACI without prior notice, and ACI may, at its sole discretion, choose to adjust the rates for services to include the cost, if any, for bandwidth, licenses, hardware, software, taxes or fees as imposed upon ACI by any governmental agency (“Government Fees”), manufacturer or vendor. A statement in the Service Agreement or other Written Contract that “rates” are valid for the duration of the contract (or equivalent language) shall be construed to refer only to the ACI Services rates, and not Government Fees, such as sales tax, unless there is also express language stating that Government Fees shall not change. When (a) the Initial Term or Agreed Renewal Term expires, (b) a particular rate is subject to change during the Initial Term or Agreed Renewal Term, or (c) the Services Agreement or other Written Contract does not specify a particular rate, ACI may change rates by posting to the ACI website (without further notice to Customer) or by notifying Customer through some other means, in accordance with Paragraph 14. When the Initial Term or Agreed Renewal Term expires, any rate changes that did not take effect during the Initial Term or Agreed Renewal Term shall become effective. All Usage Fees are due and payable on the first day of the month billed and shall be considered late if not received by ACI by the tenth calendar day of such month. Subject to the foregoing, rate changes become effective immediately and may be posted, at ACI’s sole discretion, on the ACI website located at www.acimsp.com.
5.3 Installation Charge and Security Deposit. Charges for any hardware, software, installation labor, etc. shall be as stated in the Service Agreement as a Non-Recurring Charges “NRC” and shall be due and payable upon ordering the service and prior to installation. An equipment deposit for ACI Equipment to be used as rental or “loaner” equipment within the Customer Premises shall be as stated in the Service Agreement and shall be due prior to installation and shall be refunded, in part or full, at ACI’s sole discretion, to Customer upon termination of service, provided said ACI Equipment is returned in good working condition and in its original packaging.
5.4 Agreement to Pay. ACI will issue a statement of compensation via mail or electronic mail, at ACI’s option, due at the end of the month and Customer shall make payment by business check, cashier’s check or money order, on the first (1st) of each month, and/or within ten (10) days of the billing date, whichever is greater. Customer hereby agrees to pay all monthly Service Fees, Usage Fees, Installation Charges, NRCs and Equipment Deposits. Customer hereby authorizes ACI to charge Customer’s Visa, MasterCard, American Express or other credit card and/or to electronically debit Customer’s bank account for all such fees, charges, taxes and payment transaction processing costs, if applicable. ACI reserves the right to change the acceptable forms of payment at its sole discretion.
5.5 Late Payments/Failure to Pay. If any payment due to ACI is not received by the invoice due date, ACI may assess an administrative charge of 5% of the amount due, interest at a rate of 18.9% per annum, and/or discontinue the Service(s). If the Service is discontinued, Customer will be required to pay a reconnect and reinstatement fee of $175.00 in addition to all past due amounts before the Service is reactivated. The administrative charge is intended to be a reasonable advance estimate of ACI’s costs resulting from Customer’s late payments and non-payments, and is set in advance due to the difficulty inherent in determining the costs associated with any particular late payment or non-payment. ACI does not anticipate that Customer will fail to make payments on a timely basis. ACI does not extend credit to its Customer, and the administrative charge is not interest, a credit service charge nor a finance charge. Additionally and as a condition for reconnection and reinstatement, the Customer will be required to provide a valid credit card or bank debit authorization as an alternate form of payment. This will be used for subsequent invoice payments in the event of future account delinquencies. In the event ACI, at its sole discretion, elects to use the services of a third party collection agency, the costs of such third party collection agent shall be paid by the Customer.
5.6 Price Changes. ACI has the right to change its Service Fee(s) at any time and your continued use of the Service(s), upon expiry of 30 day period shall constitute your acceptance to be bound by the newest Service Fee(s) unless otherwise specifically stated in the Service Agreement.
5.7 Additional Charges. The Service may allow Customer to access the Internet, on-line services and other information. Customer acknowledges that Customer may incur charges while using the Service in addition to those billed by ACI. For example, Customer may incur charges as a result of accessing certain online services or purchasing or subscribing to certain other offerings. Customer agrees that all such charges, including all applicable taxes, are the sole responsibility of Customer.
5.8 Credit Inquiries. Customer authorizes ACI to make inquiries and to receive information about
Customer’s credit experience from others, enter this information in Customer’s file, and disclose such information concerning Customer to appropriate third parties for reasonable business purposes.
ACI reserves the right, in its sole discretion, to refuse to provide Service(s) based upon lack of creditworthiness, or in the alternative to require a security deposit that will be returned to Customer, without interest thereon, upon the expiration or termination of Services assuming all amounts due ACI have been paid in full. ACI shall have the right to draw against the security deposit, in part or in full, any amounts due ACI that are not paid when due.
5.9 Property of Customer. All computer programs, written procedures, and other supporting items used in the work performed for the Customer shall be the property of the Customer, provided that the corresponding compensation due ACI for the services involved in formulating such programs, procedures, and items has been paid in full by the Customer.
6. CUSTOMER CONDUCT AND FAIR USAGE OF FLAT RATE SERVICES
6.1 Prohibited Uses. Customer shall not use the Service(s) or the ACI Equipment, directly or indirectly:
6.1.1 for any unlawful purposes; use of the Service for transmission or storage of any information, data or material in violation of any United States federal, state or local regulation or law is prohibited, such limitation shall include, without limitation, posting or disseminating content which is obscene, unlawful, threatening, defamatory, or infringes upon the intellectual property rights of any third party;
6.1.2 to post, transmit or disseminate objectionable information, including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law or regulation;
6.1.3 to access any other person’s computer, software or data without the knowledge and consent of such person without authority to do so;
6.1.4 to upload, post, publish, transmit, reproduce, create derivative works of, or distribute in any way, information, software or other material obtained through the Service which is protected by copyright or other proprietary rights without obtaining permission from the owner(s);
6.1.5 to copy, distribute, or sublicense any software provided by ACI, except that Customer may make one copy of each software program for back-up purposes only;
6.1.6 to service, alter, modify or tamper with the ACI Equipment or Service or permit any other person to do the same unless such person is authorized by ACI to do so;
6.1.7 to restrict, inhibit or otherwise interfere with the ability of any other person to use or enjoy the Service, including, without limitation, posting or transmitting any information or software which contains a virus or other harmful feature, or generating levels of traffic sufficient to impede others’ ability to send or retrieve information;
6.1.8 to knowingly disrupt the Service;
6.1.9 to resell the ACI Service or otherwise charge others to use the Service; the Service is for individual use only and Customer agrees not to use the Service for operation as a Managed Services Provider or for any other business enterprise in competition with the Service;
6.1.10 to allow or provide access to adult content material to anyone under the age of 18 years;
6.1.11 to connect the Service to any computer/mobile device outside Customer’s Premises, defined network as established by ACI, or Customer’s device inventory as denoted in ACI’s approved Customer Proposal, Service Agreement, Appendix, or Addendum to the Service Agreement.
6.2 Fair Usage Policy. Where the Services Agreement or other Written Contract provides for unlimited support or other unlimited services, ACI reserves the right, at its sole discretion, to charge for unreasonable usage and the unreasonable portion of usage is subject to additional charges at ACI’s regular then prevailing usage rates. ACI also reserves the right to change the fair usage policy, derived from industry standard policies and procedures, at any time, and at ACI’s sole discretion. Your continued use of the Services after expiry of the 30-day period shall constitute your acceptance to be bound by the terms and conditions of the ACI fair usage policy.
6.3 Call Flooding. To protect the integrity of its Help Desk Support Services, ACI may, in its reasonable discretion and without liability for damages of any type to Customer, temporarily delay response to support calls, where ACI considers the number of calls to be potentially harmful to its Services. Also, frequent “call flooding” of the Help Desk Support Services, even if subscribed to unlimited help desk support or other unlimited support services, via the Services Agreement or other Written Contract, may constitute unreasonable usage as outlined in section 6.2 above.
6.4 Termination and Indemnification for Customer Conduct. ACI reserves the right to immediately suspend the Service if Customer engages in any of the activities listed in Section 6.1 above or if
Customer uses the Service or ACI Equipment contrary to any other ACI policy. Copies of such policies may be posted online at www.acimsp.com. Termination of the Complete Agreement in full or as to specific Service(s) may thereafter follow, in accordance with Paragraph 8 below.
This Section 6.4 shall in no way limit ACI’s rights of termination pursuant to Paragraph 8 of these
Terms and Conditions. Customer agrees to indemnify, defend and hold harmless ACI against all claims and expenses (including reasonable attorneys’ fees) resulting from Customer’s use of the Services, including, without limitation, the activities listed in Section 6.1 above, or from any other violation of ACI policies by Customer. This provision shall survive the expiration or other termination of this Agreement.
7. SERVICE INTERRUPTIONS
7.1 Force Majeure. ACI SHALL NOT BE IN BREACH OF CONTRACT, AND SHALL HAVE NO LIABILITY WHATSOEVER FOR INTERRUPTION OF THE SERVICE(S) DUE TO CIRCUMSTANCES BEYOND ACI’S CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, ACTS OF WAR, FLOOD, NATURAL DISASTER, REGULATION OR GOVERNMENTAL ACTS, FIRE, CIVIL DISTURBANCES, STRIKE OR WEATHER.
7.2 Completion Times. ACI will furnish the completed work to the Customer at times to be mutually agreed upon. Maintenance and troubleshooting will be predicated on normal working conditions and are subject to adjustments at any time in the event of any cause or causes beyond the control of ACI.
7.3 Service Level Agreement. ACI’s SLA (Service Level Agreement) shall be in full effect 24X7X365 to the customer and will provide a “worst case” scenario of 1-2 hour guaranteed callback to all customers and 2-4 hour onsite window for clients located within 20 miles radius of ACI’s main office, as indicated in Section 14.2 below.
8. CONTRACT DURATION AND TERMINATION
8.1 Termination by Customer. The pricing in our agreements reflects customer’s willingness to enter into a long term service arrangement, and the parties agree that company will suffer economic loss that would be difficult to quantify precisely if customer terminates the contract early. Accordingly, to provide certainty, an early termination fee equivalent to the sum of the Fixed Monthly Service Fees and Variable Monthly Service Fees that would be billed for the remainder of the agreed term of this agreement (but not to exceed twelve months’ charges) will be assessed on the customer in case of early termination of this agreement by either the customer or (in the event of default by customer) the company. The termination amount of the Variable Monthly Service Fees shall be equal to the months remaining in the Term times the average of the prior three (or if less than three months have elapsed, using the actual number of months elapsed) month’s variable usage fees. The termination fee will be billed as a lump sum upon early termination of the agreement and is in addition to charges for service provided through the date of early termination. ANY TERMINATION NOTICE RECEIVED BY ACI WHICH IS NOT ACCOMPANIED BY THE PAYMENT OF THE APPLICABLE TERMINATION FEE SHALL BE NULL AND VOID.
8.2 Other Termination Provisions. ACI may terminate this Agreement immediately should Customer violate any of the terms of this Agreement. ACI may also terminate this Agreement for any other reason by providing Customer with written notice of such termination no later than thirty (30) days before the date of termination. In the event that ACI terminates this Agreement for any reason other than Customer’s violation of the provisions of Section 6.1, Service Fees and other charges will continue to accrue through the date of termination. If termination is due to violation of the provisions of Section 6.1, the termination amount will be equal to the number of months remaining in the Term times the amount of the monthly Fixed and Variable Service Fees. The termination amount of the Variable Monthly Service Fees shall be equal to the months remaining in the Term times the average of the prior three (or if less than three months have elapsed, using the actual number of months elapsed) month’s variable usage fees. The termination fee will be billed as a lump sum upon early termination of the agreement and is in addition to charges for service provided through the date of early termination. Unless applicable law requires otherwise, a statement on an invoice that the account is past due shall constitute notice of default, and notice may also be given by other appropriate means.
8.3 Customer Obligations. Customer agrees that upon termination of the Agreement:
8.3.1 Customer will pay ACI in full for Customer’s use of the Service and ACI Equipment up to the later of (i) the effective date of termination of the Agreement or (ii) the date on which the Service and the ACI Equipment have been disconnected and returned to ACI. Customer agrees to pay ACI on a prorated basis for any use by Customer of the Service or ACI Equipment for partial months;
8.3.2 Customer will permit ACI, its employees, agents, contractors and representatives to access
Customer’s Premises during regular business hours to remove the ACI Equipment and other materials furnished by ACI that are not the property of Customer;
8.3.3 Customer will ensure the return of all ACI Equipment to ACI. Customer will return or destroy, at ACI’s sole discretion and instruction, all copies of any software provided to Customer pursuant to the Agreement. If the ACI Equipment is not returned, Customer agrees to pay the charges referred to in Section 3.4 above and ACI shall have the right to invoice Customer, and Customer hereby authorizes and agrees to remit payment (total amount due immediately), or be charged such amount to Customer’s Visa, MasterCard or other credit card, or to electronically debit Customer’s bank account, if any of those electronic options are available to ACI.
8.3.4 Customer, upon request by ACI made not more frequently than monthly, shall provide information regarding the number of desktop and/or portable computers and mobile devices connected to the ACI Service during any month.
8.4 Retention of Rights. Nothing contained in the Agreement shall be construed to limit ACI’s rights and remedies available at law or in equity. ACI reserves the right to delete all data, files, electronic messages or other information for any reason arising out of or related in any way to the use of the Service and/or ACI Equipment by Customer or otherwise arising out of the use of Customer’s network or computers.
8.5 Survival of Section 8. The terms set forth in this Section 8 shall survive the termination of the Agreement.
There may be some content on the Internet or otherwise available through the Service which may be offensive to some individuals or which may not be in compliance with all local, state, or federal laws, regulations, and other rules. ACI assumes no responsibility for the content contained on the Internet or otherwise available through the Service. All content accessed by the Customer through the Service is accessed and used by the Customer at Customer’s own risk and ACI and each of its representatives, affiliates, subcontractors, employees, and agents, shall have no liability whatsoever for any claims, losses, actions, damages, suits, or proceedings arising out of or otherwise relating to access to such content by the Customer or the Customer’s employees, affiliates, agents, or representatives. ACI specifically disclaims any responsibility for the accuracy, quality, and confidentiality of information obtained through the Service.
Customer acknowledges that Customer is executing the Agreement on behalf of all persons who use the Service and/or ACI Equipment through Customer’s computer(s), network systems, mobile devices, I-PBXs and other data or communications equipment. Customer shall have sole responsibility for ensuring that all such other users understand and comply with the terms and conditions of the Agreement. Customer further acknowledges and agrees that Customer is solely responsible and liable for any and all breaches of the terms and conditions of the Agreement whether such breach is the result of use of the Service and/or the ACI Equipment by Customer or any other user of Customer’s computer(s), network systems, mobile devices, I-PBXs and other data or communications equipment. Customer agrees to indemnify, defend and hold harmless ACI against all claims and expenses (including reasonable attorneys’ fees) arising out of the use of the Service and/or ACI Equipment by any other user of Customer’s computer(s), network systems, mobile devices, I-PBXs and other data or communications equipment.
11. GENERAL LIMITATIONS ON LIABILITY
11.1 Exclusions. UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THE AGREEMENT OR OTHERWISE PROHIBITED BY LAW, NEITHER ACI, IT’S OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS, NOR ANY OWNER OR MANAGER OF THE BUILDING OR LAND IN WHICH CUSTOMER’S PREMISES IS LOCATED SHALL HAVE ANY LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR:
11.1.1 ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF EARNINGS OR LOSS OF BUSINESS OPPORTUNITIES, RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, THE USE OF THE SERVICE BY CUSTOMER OR ANY OTHER USE OF THE ACI EQUIPMENT OR SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGE RESULTING FROM OR ARISING OUT OF CUSTOMER’S RELIANCE ON OR USE OF THE SERVICE OR ACI EQUIPMENT OR SOFTWARE, OR THE MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSION OR ANY FAILURE OF PERFORMANCE OF THE SERVICE OR ACI EQUIPMENT OR SOFTWARE; OR
11.1.2 ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES OR COSTS (INCLUDING LEGAL FEES) RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE ACI EQUIPMENT OR SOFTWARE, OR SERVICE OR A THIRD PARTY INFRINGES UPON THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY OR OTHER INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY.
11.2 Application of Liability Limitations. The liability limitations set forth in this Section 11 apply to the acts, omissions and negligence of ACI (and its officers, directors, employees, agents, contractors and representatives) which, but for this provision, would give rise to a cause of action in contract, tort or any other legal doctrine. However, the liability limitations set forth in this Section 11 shall apply to liability for personal injury or death only to the extent applicable law does not prohibit such limitation.
11.3 No Third Parties. Unless a document within the Complete Agreement states otherwise, there are no third-party beneficiaries. Furthermore, no third-party owner or manager of Customer’s building or land is a party to the Agreement. Thus, no such owner or manager shall be responsible for or liable to Customer for the quality of the Service(s) or ACI Equipment, nor shall ACI be liable to such person in relation to the Service(s) or ACI Equipment.
11.4 Sole Remedies. Except where otherwise required by law, Customer’s sole and exclusive remedies under the Terms and Conditions are as set forth in the Complete Agreement, and Customer hereby agrees that its remedies for breach of the Complete Agreement are limited as set forth herein.
12. GENERAL INDEMNIFICATION PROVISION
Customer shall defend (with counsel reasonably acceptable to ACI), indemnify and hold harmless ACI and ACIs officers, directors, employees, agents, contractors and representatives from and against any and all claims and expenses, including reasonable attorneys’ fees, arising out of ACI’s installation, provisioning, usage, or removal of Service to Customer, or destruction of ACI Equipment, Software, or Services in connection with Service to Customer. This indemnification obligation shall apply where Customer is or is alleged to be (by the third party claimant or ACI) at fault or partially at fault.
Customer agrees that ACI and/or its agents may, from time to time, collect information regarding Customer’s use of the Service and activities on the Internet or local area network. Customer agrees that such information may be shared with third parties provided that (i) ACI does not disclose any personally identifiable information to others except, as allowed by law and (ii) otherwise complies with applicable privacy laws. However, the foregoing obligation does not apply to any data that has become publicly available or that is rightfully obtained from third-parties. Customer expressly grants ACI the right to disclose information relating to Customer and/or Customer’s account in response to a subpoena issued in a civil or criminal investigation, litigation, court order or a civil investigation by a governmental entity. ACI will not be obligated to keep confidential any concepts or techniques relating to electronic data processing, integrated systems and network consulting, that may be developed solely by ACI or jointly with the Customer during the term of the Agreement.
14. MISCELLANEOUS PROVISIONS AND NOTICES AND AMENDMENTS OF THESE TERMS AND CONDITIONS
14.1 Controlling Law; Venue. The validity, performance, and interpretation of the Terms and Conditions, Service Agreement and other Written Contract Documents will be governed and construed in accordance with the laws of the United States and the Commonwealth of Pennsylvania, without regard to its conflicts of law provisions. Although the parties have agreed in Paragraph 16 below to binding arbitration, where court proceedings are necessary and are consistent with the arbitration provisions (for example, in actions to enforce arbitration awards, or where there is an exception to the duty to arbitrate disputes), the parties will voluntarily appear before and hereby consent and submit to the exclusive jurisdiction of the state and federal courts located in Lehigh and Northampton Counties, PA. If any dispute, litigation, or other action arises between the parties with respect to the matters covered by the Agreement, the prevailing party in such proceeding shall be entitled to receive its reasonable attorneys’ fees, expert witness fees and out of pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
14.2 Notices. All notices permitted or required under these Terms and Conditions shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally, (ii) by commercially established courier service upon delivery or, if the courier attempted delivery on a normal business day and delivery was not accepted, upon attempted delivery, (iii) by facsimile transmission when confirmed by facsimile transmission, or (iv) by certified or registered mail, return receipt requested, ten (10) calendar days after deposit in the mail. Such notices shall be sent to the addresses set in the Services Agreement or such other address as a party hereto shall notify the other party of in writing.
Unless customer is directed to send notices to ACI to a different address, notices hereunder to ACI shall be sent to the following address (the “Notice Address”):
USPS: 167 N. Commerce Way, Suite 125
Bethlehem, PA 18017
Attn: Ken Abboud
14.3 Amendments. ACI may amend these Terms and Conditions (including rates) prospectively by (a) updating them on its website, or (b) notifying customer of the changes by some other means. During an Initial Term, amendments are limited to the subject matters discussed in Paragraph 5 regarding rates. After the expiration of an Initial Term, ACI may change these Terms and Conditions by posting to the ACI website (without further notice to Customer) or by notifying Customer through some other means, in accordance with Paragraph 14. When the Initial Term expires, any changes that did not take effect during the Initial Term shall become effective. Where amendment by website posting or other notice is permitted, the amendment shall take effect as the date it is posted to the website or otherwise distributed to Customer, unless Customer notifies ACI of his, her or its rejection of the amendment within 30 days after the posting or other notice occurs. If Customer notifies ACI of his rejection of the amendment, ACI may elect between continuing to provide service to the affected Customer without the amendment, or terminating the service on 30 days’ notice. No amendment shall be binding on ACI unless either (a) posted or otherwise distributed in writing by ACI, or (b) signed by an authorized representative of ACI.
14.4 Hiring ACI’s Employees, Agents, or Independent Contractors. The Customer agrees that it will not, either during the term of the Agreement or for a period of two (2) years following its termination, hire for its own employment any of the employees, agents and/or independent contractors of ACI who have performed any type of services at any time in carrying out the terms of the Agreement. Customer recognizes and agrees that ACI does not have a remedy at law adequate to protect its rights and interests in its practice, employees, confidential information, trade secrets and commercial assets, and therefore, agrees that ACI shall have the right to an injunction in joining Customer and each and every other person concerned thereby violating any of the said provisions pursuant to this covenant not to hire in the Agreement. Customer covenants and agrees that ACI may seek a preliminary injunction against Customer for a breach hereof, such additional remedy being considered cumulative and in no way limiting ACI’s other remedies hereunder or at law.
14.5 Counterparts. The Service Agreement and other Written Contracts may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
14.6 Headings. The headings in these Terms and Conditions are inserted for convenience only and are not intended to constitute a part of the Terms and Conditions, or modify or limit any of the provisions herein.
14.7 Waiver; Amendment; Modification. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed by the party against whom such waiver or consent is asserted. The waiver by either party of, or consent of either party to, a breach of any provision of these Terms and Conditions by the other party shall not operate or be construed as a waiver of, consent to, or excuse of any other or subsequent breach by the other party.
14.8 Severability. To the extent any provision or portion of these Terms and Conditions, Service Agreement or other Written Contract Documents are determined to be invalid, illegal or unenforceable, such provision or portion shall be severed or deleted from this Agreement or limited so as to give effect to the intention of the parties insofar as possible. The invalidity or unenforceability of any provision or portion hereof shall not affect the validity or enforceability of any other provision or this Agreement as a whole.
14.9 Assignment. ACI may assign its rights and obligations under the Agreement to any party without the consent of Customer. Customer may not assign or otherwise transfer its rights or obligations under the Agreement without the prior written consent of ACI.
14.10 Entire Agreement. No representation, warranty, term or condition, other than as expressly set forth in a document within the Complete Agreement defined in Paragraph 2 above, shall be binding.
15. DISPUTE RESOLUTION
By utilizing ACI’s Services, you agree to the following dispute resolution procedures:
15.1 WAIVER OF JURY TRIAL AND CLASS PARTICIPATION. YOU AND ACI AGREE TO WAIVE
ANY RIGHT TO A TRIAL BY JURY IN A COURT OF GENERAL JURISDICTION AND ANY RIGHT
TO PARTICIPATE IN A CLASS ACTION OR CONSOLIDATED ACTION REGARDING A DISPUTE AS DEFINED BELOW. SPECIFICALLY, YOU AND ACI AGREE TO WAIVE ANY RIGHT TO PURSUE A DISPUTE BY JOINING YOUR DISPUTED CLAIM(S) WITH THE DISPUTED CLAIM(S) OF ANY OTHER PERSON OR ENTITY OR TO ASSERT A DISPUTED CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
15.2 Notification of Disputes. If you have a dispute with ACI, please notify ACI’s Customer Care Department at 610-332-0317. The Billing Manager will work to resolve any disputes. If the Billing Manager is unable to resolve your dispute, you must submit your dispute to us in writing at the address listed in Section 14.2 for notices, generally, Attn: Ken Abboud, within 60 days of the date on the affected bill, regardless of whether you are disputing a bill or raise some other dispute with us. You must describe your dispute and provide enough detail to allow us to understand it. You must provide any supporting documentation with your written dispute. If we have a dispute with you, we will send you written notice at your billing address to attempt to resolve the dispute.
15.3 Scope of Disputes. You and ACI agree that a dispute as that term is used herein is any claim or controversy related in any way to ACI’s Services, charges for Services, ACI Equipment, Service Order(s), these Terms and Conditions, any other agreements, or your relationship with ACI, whether or not the dispute arises in tort, under contract, by statute or under any other legal theory and whether or not the dispute arises under this or any other agreement with us, or arises after your Services with ACI are terminated.
15.4 Forum Selection for Resolution of Customer-Initiated Disputes. If you and ACI are unable to resolve the dispute after 60 days from the date of receipt of the written dispute, you may file a proceeding to seek relief. However, you shall be limited to either (1) filing a claim for relief in small claims court, if appropriate under the applicable court’s rules and governing law, in the city or county of the billing address reflected on your bill; or (2) filing a claim in arbitration, as set forth in Section 16 herein.
15.5 Time Limitation for Disputes. All disputes, whether or not subject to mandatory arbitration, must be submitted within the time limits specified in Section 16.
15.6 Suspension or Termination of Service; Actions by ACI to Recover Costs. Nothing in these Terms and Conditions is intended to prevent ACI from suspending or terminating service or filing a case in court to collect charges, even where you have timely disputed charges and ACI has denied your dispute.
16.1 Arbitration Required for Certain Claims. You and ACI specifically agree to finally resolve all claims by arbitration before an American Arbitration Association (“AAA”) arbitrator, whose decision will be final and binding on both you and ACI, subject to applicable law. However, this agreement to arbitrate shall not apply to (a) actions filed by us in any court against you to collect charges due or recover possession of our property from you, (b) actions filed by you against us in small claims court, or (c) any motion for emergency or preliminary injunctive relief, provided the remainder of the proceeding is subject to arbitration if not otherwise exempt from the arbitration requirement;
16.2 Applicable Law. The interpretation and enforceability of the arbitration provisions hereunder, including whether a given dispute is subject to arbitration, is subject to the Federal Arbitration Act (“FAA”).
16.3 Applicable Rules. ACI and you agree that the arbitration will be conducted by the AAA. The rules governing the arbitration proceeding will be the current Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes (“AAA Rules”) from the AAA. The AAA rules are available at www.adr.org or can be obtained by calling 1.800.778.7879.
16.4 Method of Arbitration. If you initiate arbitration of a claim for $10,000 or less, you may choose whether the arbitration will be conducted solely on the written documents submitted, by telephone or in person in a suitable location in the County of Northampton, PA. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA rules and the appointed arbitrator(s).
16.5 Injunctive relief. Any declaratory or injunctive relief awarded in arbitration shall be narrowly tailored and shall be limited to that necessary to provide the relief warranted by the individual claims in the arbitration.
16.6 No Consolidation of Claims with Other Customers. The arbitrator may not consolidate your claims with those of any other ACI customer, nor shall the arbitrator preside over any form of representative or class proceeding.
16.7 Confidentiality. All arbitrations hereunder shall remain confidential. During the arbitration, the amount of any settlement offer made by ACI or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or ACI is entitled. Neither you nor ACI may disclose the existence, content or result of any arbitration or award, except as may be required by law, or to confirm and/or enforce an award.
16.8 Exceptions. Nothing in this Section 16 shall prevent ACI from issuing notices, including take-down notices for alleged trademark or copyright infringement pursuant to the Digital Millennium Copyright Act, or terminating service pursuant to ACI’s Acceptable Use Policy due to your abuse of your internet access services.
16.9 Limitations on Liability. This Section 16 and all disputes between you and ACI, are subject to the
Limitations of Liability appearing in various places in these Terms and Conditions.
16.10 Limitations Period for Disputes. No claim or dispute by you or ACI shall be considered valid if filed more than 6 months after the date the basis for the claim or dispute first arises; provided, however, that, if the dispute is brought by you against ACI, you must also comply with the notice provisions of Section 14.2 herein.
16.11 Future Amendments to Arbitration Provisions. Notwithstanding any provision in these Terms and Conditions to the contrary, you and ACI agree that if ACI makes any future change to Part 16 herein governing dispute resolution (other than a change to the notice addresses), you may reject such change by sending ACI written notice within 30 days of the change to the Notice Address provided in Section 14.2 herein. By rejecting any such change, you are agreeing that you will seek to resolve any dispute between us in accordance with the language of Section 16 existing prior to such change.
16.12 Waiver of Jury Trial. YOU AND ACI WAIVE, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THESE TERMS AND CONDITIONS AND SERVICE AGREEMENT RELATED TO THE SERVICES PROVIDED BY ACI.