ACN Communication Services, Inc. (“ACN”)
Terms and Conditions for Digital Subscriber Line Service

GENERAL

This document sets for the terms and conditions (“Agreement”) under which ACN will provide Digital Subscriber Line Service (“DSL Service”) to its customers. This Agreement incorporates by reference those pricing, product specifications and other details regarding ACN services and charges set forth in ACN’s Guide for DSL Service (“Guide”) which you can view at ACN’s website, www.acninc.com/web/us/Dsl.jsp, or you may request a copy of ACN’s Guide from ACN Customer Service by calling 1-888-ACN-9013, or by writing to: ACN Customer Service, 411 Third Street, Gwinn, MI 49841. In the event of a conflict between the terms of this Agreement and the Guide, the terms of this Agreement shall prevail.

SERVICE

DSL Service is comprised of digital subscriber line service, Internet access (accompanied by certain related services such as electronic mailboxes and Web space) and certain basic telephone assistance. The Guide sets forth in more detail the various service offerings and features available under the DSL Service. ACN may extend from time to time certain promotional offerings and Customer understands it must sign a promotion addendum to this Agreement in order to be eligible for such promotional offerings.

In some circumstances, professional, on-site installation will be required but the DSL Service will generally be completed by Customer’s own installation of software and completion of certain connections, including the appropriate modem. Any equipment provided to the Customer in connection with the DSL Service may have been previously used but will have been certified by the supplier as being equivalent in function and appearance to new units, all such equipment will belong to the Customer and will be deemed accepted by Customer upon delivery.

AVAILABILITY

The DSL Service is available only to ACN customers who are also purchasing ACN Advantage service (ACN's bundled local and long distance service). Availability of DSL Service is subject to various technical, geographic and “speed” (data transfer rate) restrictions. The DSL Service is available only to residential customers. While the DSL Service works with all major PC operating systems, there are differing technical adjustments and preparations that a Customer may need to make to his system in order to fully utilize the DSL Service. These technical modifications are discussed in more detail in the Guide and those materials delivered to each DSL Customer. In some cases, the Customer’s premises may not be able to attain the Customer’s requested data transfer rates and in such cases, customer will be provided the option of purchasing DSL Service at a lower data transfer rate or discontinuing the DSL Service.

RATES

The price for DSL Service is a function of the features selected by each Customer. ACN reserves the right to increase the price charged to Customer on thirty (30) days notice to Customer. Any continued use of the affected DSL Services (30) thirty days after the notice of a price increase shall be deemed acceptance of the new prices. ACN’s rates for DSL Service are available at www.acninc.com or by calling ACN Customer Service at 1-888-ACN-9013.

CREDIT AND DEPOSIT INFORMATION

Customer authorizes ACN to check Customer’s credit from time to time. Depending upon a Customer’s (or a potential Customer’s) credit or payment history, ACN may require a Customer to provide some form of security to obtain or retain DSL Service. Security may be provided in the form of a Pre-Authorized Payment (PAP), where a Customer provides ACN written authorization to directly debit a credit card or checking account for charges incurred. Other forms of security, such as a deposit, may be accepted at ACN’s sole discretion.

BILLING AND PAYMENT

The fee for the DSL Service to which the Customer has subscribed will be billed monthly with the recurring fees being billed in advance and all non-recurring charges being billed in arrears. Charges for installation and for equipment will be billed in advance and are non-refundable. All charges for the DSL Service will appear on your regular monthly ACN bill and will have the same due date as other billed items as set forth in the same invoice for other services. Any amount not paid within ten (10) days of the due date therefore, will accrue interest at the lesser of 1.5% per month or the highest rate permitted by law. Any taxes which are based or imposed upon or arise from, the provision of the DSL Service or any related materials, shall be the obligation of the Customer and shall be added to the monthly bill.

You will be charged a $25.00 returned check charge on all checks issued to ACN which are returned by your bank for non-sufficient funds. Checks returned by your bank will be charged electronically to your checking account through the ACH Network for the face value of the check and are subject to the additional returned check charge that will also be charged electronically to your checking account. At ACN’s sole discretion, the returned check charge may be waived under appropriate circumstances (e.g. a bank error). If ACN bills you through a billing agent (such as your local telephone company), that company’s returned check charge shall apply. Partial payments will be applied to services in the following order: regulated services (local) first, deregulated (long distance, DSL, Inside Wiring) second.

Any objections to billed charges must be reported to ACN or its billing agent within twenty (20) days of the invoice date. Adjustments to your account shall be made to the extent that circumstances exist which reasonably indicate that such changes are appropriate.

You must notify ACN of any change in your invoicing address, or if applicable, in the credit card used for payment, by calling ACN Customer service at 1-888-ACN-9013, or by writing to: ACN Customer Service, 411 Third Street, Gwinn, MI 49841. Please include your account number with any correspondence. If you have questions or concerns about your bill from ACN, please call ACN Customer Service at 1-888-ACN-9013.

ORDERING AND COMMENCEMENT OF SERVICE

The provisioning of DSL Service will require actions on the part of both ACN and the Customer. The timing and completion of such provisioning will be carried out on a commercially reasonable basis.

For self-installed DSL Service, DSL Service will be deemed to have commenced and billing will begin upon the earlier to occur of the following: (a) when ACN can verify that the Customer’s circuit passes traffic or (b) (i) ACN has provisioned the network elements under its control, and (ii) at least five (5) days have elapsed since ACN has confirmed with the Local Exchange Carrier the set up of the Customer’s telephone circuit is capable of carrying line shared data services. Provided, that, if a Customer subscribes to the DSL Service along with its initial purchase of ACN Advantage services, then the DSL Service will not be effective until the ACN Advantage service has commenced.

If professional installation is required, then DSL Service will be deemed to have commenced and billing will begin upon completion of the professional installation.
All orders requiring non-standard service are subject to acceptance by ACN. If Customer requests changes to the original order or has special requirements not communicated to ACN at the time of the original order and such changes or special requirements affect ACN’s ability to meet its obligations under the original order, or require special invoicing or documentation support beyond standard ACN practices, then prices or the commencement date for DSL Service as specified by ACN with respect to the original order shall be subject to change.

TERM AND CANCELLATION OF SERVICE

DSL Service is only available for a minimum term of twelve months; after the original term, the DSL Service may be continued only on a month to month basis, subject to the terms of this Agreement. Customer may cancel any DSL Service upon thirty (30) days written notice to ACN but in the case of a cancellation prior to the expiration of the original term, Customer shall be liable for all fees for the DSL Service up to the date of cancellation, plus a termination fee of $150. Customer acknowledges that this early termination fee is a liquidated damage and not a penalty and that the fees for DSL Service would be substantially higher but for this provision.

SUSPENSION AND TERMINATION

A “Payment Default” shall occur if Customer fails to make full and timely payment for all DSL Services as required under this Agreement and such failure remains uncorrected for five (5) calendar days from the due date. In the event of a Payment Default, ACN may, in addition to its rights available to it at law or in equity: (i) suspend any or all DSL Services to Customer immediately upon written notice; (ii) cease accepting or processing any orders for any service for Customer; and/or (iii) terminate this Agreement upon written notice. If this Agreement is terminated because of a Payment Default, a termination fee as described in Section 8 shall be assessed. If the Service is suspended, Customer is still liable for the regular monthly fees.

A “Non-Payment Default” shall occur if either party fails to perform or observe any material term or obligation, excluding payment terms, contained in this Agreement, and any such failure remains uncorrected for thirty (30) calendar days after written notice from the non-defaulting party. In the event of a Non-Payment Default by Customer, ACN may upon ten (10) days written notice to Customer and in addition to its rights available to it at law or in equity: (i) suspend any or all DSL Services to Customer; (ii) cease accepting or processing orders; and/or (iii) terminate this Agreement. If this Agreement is terminated because of a Non-Payment Default by Customer, a termination fee as described in Section 8 shall be assessed.

In the event of a Non-Payment Default by ACN, Customer’s remedies are limited to its proven direct damages with the amount of direct damages recoverable being subject to the limitations in Section 17, and the right to terminate any or all affected DSL Service, unless this Agreement provides for exclusive remedies in the applicable provisions in which case Customer’s remedies are exclusively as described therein.
Upon termination, Customer is responsible for paying all amounts and charges that have accrued for DSL Service as of the date of termination.

Restoration of suspended DSL Service shall be made only if Customer pays all amounts due, plus any interest owing, any reactivation fees and provides any additional security reasonably required by ACN as a condition for restoration of DSL Service.

CHANGES TO THESE TERMS AND CONDITIONS AND DISCONTINUATION OR MODIFICATION OF THE SERVICE

ACN may, at any time, upon thirty (30) days prior written notice thereof to the Customer, change all or any of the provisions of this Agreement including any rates being charged for DSL Service and/or discontinue the provision of the DSL Service; and in the case of such a change, the notice will set forth the new provisions which will apply to any future DSL Service.

SUBCONTRACTING

ACN may subcontract all or part of the performance of the DSL Service to third parties. In such event, the third party contractor may be the person to contact the Customer with regards to the scheduling and the nature of any installation or other work to be performed and shall carry out the work on behalf of ACN.

USE OF SERVICE

ACN may refuse or discontinue your DSL Service without prior notice: (i) in the event you, or any authorized or unauthorized users, use the DSL Service in such a manner as to adversely affect ACN’s services to others; (ii) in the event of tampering with the services of ACN; (iii) in the event of fraudulent use of service (ACN may, before restoring service discontinued for fraudulent use, require Customer to pay an amount reasonably estimated as the loss in revenues resulting from such fraudulent use) ; (iv) any violation of ACN’s Acceptable Use Policy (“AUP”) which is incorporated herein by reference, and a copy of which can be found at www.acninc.com and (v) by reason of an order or decision of a court or other government authority having jurisdiction that prohibits ACN from furnishing such services.

PRIVACY POLICY

To inform you of other company-affiliated products and services that may interest you, ACN may access information related to your account(s), particularly information known as CPNI (Customer Proprietary Network Information). Information constituting CPNI includes the kinds of services you have, how you use them and how they are billed. Federal law restricts the use of CPNI for purposes other than providing service, without the Customer’s approval. It is ACN’s policy not to sell or rent its personally identifiable Customer information to unaffiliated companies or organizations. In the future, should ACN decide to sell or rent such information to those entities, we will provide notification and the opportunity for you to indicate that they would prefer ACN not to sell or rent such information about them to such third parties.

SERVICE PROBLEMS

If you are experiencing problems or otherwise need assistance with respect to the DSL Service, call ACN at 1-888-ACN-9013; telephone service is available 24 hours a day, seven days a week, and 365 days a year.

ACCEPTANCE OF THESE TERMS AND CONDITIONS

Your acceptance of, and agreement to, these terms and conditions regarding the DSL Service is indicated by your payment of the fee for the DSL Service or your request for, or your use of, the DSL Service.

CUSTOMER RESPONSIBILITIES

Customer will be required to install certain software in his computer system and to make certain connections, including those with the appropriate modem, in order to complete provisioning of the DSL Service.

If professional installation (installation by ACN representatives) is required, then the Customer must be available at the times scheduled with Customer for the professional installation to occur; failure to be available for such appointments may result in additional charges to the Customer.

In the event of either self-installation or professional installation, Customer must supply information necessary to enable ACN to successfully provision the DSL Service ordered.

Customer understands that the Internet is not owned, operated, managed by, or in any way affiliated with, ACN and that all content, services, information and other materials that may be offered, made available, or are accessible on the Internet are offered, made available or made accessible solely by third parties who are not affiliated with ACN. Use of the Internet by Customer is solely at the Customer’s own risk. Customer further understands that the Internet contains unedited materials, some of which may be sexually explicit or may be offensive to some people and that Customer’s access to such materials is at Customer’s own risk.

You agree that your username and password and changes to both of these items are your responsibility.

You acknowledge that the registration of a domain name confers no legal right (including any trademark right) to that name, as set forth in InterNIC regulations or similar regulations. Any domain name associated with a closed account for which no alternative name service has been arranged will be unregistered.

LIMITATION OF LIABILITY

ACN’s liability for any direct damages arising from the acts or omissions of ACN or its subcontractors will be limited to the aggregate amount paid to ACN by the Customer under this Agreement as of the date of the damage occurs.
In no event, shall ACN have any liability for any (a) damages arising out of mistakes, degradations, disruptions, interruptions, omissions, delays, errors, or defects in the DSL Service nor for any loss of data or failure of the data transfer rates to meet the levels set forth in the Guide; or (b) indirect, special, incidental, consequential, exemplary, or punitive loss or damage of any kind, including lost profits or lost business, even if ACN has been advised of the possibility of such damages.

INDEMNIFICATION

You agree to indemnify, defend, and hold harmless ACN against claims, losses or lawsuits arising from your use of the DSL Service, including: (i) allegations or claims of libel, slander, invasion of privacy, and/or infringement of copyright arising directly or indirectly from the material transmitted by use of the DSL Service; and (ii) all other allegations or claims arising out of any act or omission by you in connection with the DSL Services. Indemnification shall not apply to any such claims based on ACN’s willful misconduct or gross negligence.

WARRANTIES

ACN shall use reasonable commercial efforts to provide the DSL Services. ALL EQUIPMENT AND THE DSL SERVICE ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND. ACN DISCLAIMS ALL WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, AND NONINFRINGEMENT AND ANY IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. ACN DOES NOT WARRANT THAT THE DSL SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE VIA THE DSL SERVICE SHALL BE FREE OF ANY VIRUS, DISABLING CODE, WORMS, OR ANY OTHER HARMFUL COMPONENTS.

DISPUTE RESOLUTION

Any dispute arising out of ACN’s provision of the DSL Service and/or this Agreement may be submitted to the American Arbitration Association (“AAA”) for final and binding arbitration. Any claim or dispute arising out of ACN’s provision of the DSL Service and/or this Agreement must be brought within two (2) years after the date on which the basis for the claim or dispute first arises. Any such arbitration shall be conducted in Concord, North Carolina. Any award may be confirmed and enforced in any court of competent jurisdiction.

MISCELLANEOUS

A. Assignment and Transfer: You may not transfer or assign this Agreement or the use of the DSL Service without the express written consent of ACN. All terms and conditions in this Agreement shall apply to, and be binding upon, all such permitted assignees or transferees. ACN reserves the right, subject to any applicable law or regulation, to assign all or part of its rights and duties under this Agreement without notifying you. Upon such an assignment, ACN shall have no further obligations to you.

B. Governing Law: This Agreement is governed by the law of the State of Michigan, without regard to its choice of law rules, except that the arbitration provisions of this Agreement are governed by the Federal Arbitration Act.

C. Entire Agreement: This Agreement including the Guide, constitutes the entire agreement between ACN and you and supercedes all prior agreements, representations, and understandings regarding the subject matter hereof. This Agreement can only be amended by ACN, as provided in this Agreement. No written or verbal statement, advertisement, or product description shall be deemed to have amended, or supplemented this Agreement.

D. Severability: If any provision of this Agreement is determined to be invalid or unenforceable by a court or agency of competent jurisdiction, the remainder of this Agreement shall remain valid and enforceable.

E. Notices: All notices required or permitted by this Agreement shall be provided as follows. Notices from ACN to you shall be sent to your last known address as reflected in the company records of ACN, and provided by one of the following methods: (i) by U.S. mail, postage prepaid; (ii) by a notation on, or an insert with, your billing invoice; or (iii) with your prior consent, by email. Notices from you to ACN that are required to be in writing shall be mailed to ACN Customer Service, 411 Third Street, Gwinn, MI 49841 with a copy to the ACN Attn:General Counsel 1000 Progress Place, Concord, NC 28025-2449, Facsimile: (248) 489-8901.

Written notifications shall be deemed given: (i) three (3) business days after deposit of the notice in the United States mail, postage prepaid; or (ii) on the same business day, if sent to you by email.

F. Force Majeure: Either party may adjust or suspend its performance (other than the obligation to make payment) to the extent performance is beyond its reasonable control for reasons including, without limitation, acts of God, fire, explosion, atmospheric conditions such as rain fade, cable cut caused by a third party, governmental action, national emergencies, war, riot, insurrection, terrorism, vandalism, or labor difficulties such as work stoppages, strikes, or lockouts.

G. Compliance with Law and Restrictions on Use: Customer agrees it shall not violate any applicable laws or regulations relating to the use of the DSL Service. The DSL Service is to be used solely by the Customer for his/her own use and not made available or sold to third parties. Customer agrees that his/her use of the DSL Service will be in compliance the then current ACN AUP, a copy of which can be found at www.acn.net/acn/aup.pdf. ACN’s AUP prohibits, among other things, such activities as: (i) gaining or attempting to gain unauthorized access to another account, host or network; and (ii) distributing, posting, or collecting unsolicited duplicative messages to persons or entities who do not expressly request such messages (a practice commonly know as “spamming”). Customer shall not obstruct, interfere or adversely affect the provision of DSL Services by ACN to Customer or others and upon request from ACN Customer shall promptly remove any such obstruction, interference or other item which adversely affects the provision of DSL Services by ACN. If Customer engages in any activity which violates: (i) any applicable law; (ii) the AUP; or Customer’s obligation to not obstruct, interfere or adversely affect the provision of DSL Service by ACN to Customer or others, ACN shall have the right immediately to suspend and/or terminate any or all DSL Services hereunder and/or this Agreement without notice to Customer.

H. Waiver: A failure of ACN to insist upon a strict compliance with any provision of this Agreement in any instance shall not be construed as a waiver of such provisions in the future.

J. Survival: The following clauses shall survive the termination or expiration of this Agreement: Sections 13, 17, 18 and 19.