DigitalTalk®
Terms & Conditions

Welcome to ACN DigitalTalk (the "Service") which includes related products, ACN Companion, "Device" or "Equipment," such as routers and telephones that are used in conjunction with the services, which includes but is not limited to hosted PBX, high speed internet, email, e-fax and VoIP faxing, domain registration offered by ACN Communication Services, LLC., a Michigan limited liability company with offices at 1000 Progress Place, Concord, NC 28025-2449 ("ACN").

These Terms of Service ("Agreement") are between you ("you" or "End User") and ACN for the use of the Service. If you also subscribe to ACN High Speed Internet service ("HSI Service") in connection with your Service, the High Speed Internet Terms and Conditions ("HSI Terms") will apply and are incorporated by reference into this Agreement. The HSI Terms can be found here: https://www.myacn.com/internet/terms.html. For purposes of this Agreement, references to "Service" shall include HSI Service, if applicable, except to the extent the terms conflict with the HSI Terms (in which case the HSI Terms will control with respect to the HSI Service). You must enter into this Agreement by selecting the checkbox under terms and conditions and clicking the "Continue" button during the online registration process in order to use the Service. If you do not affirmatively agree to be bound by the Agreement online by selecting the checkbox and clicking "Continue" during registration, you will not be permitted to continue with the registration process. You understand that by selecting the terms and conditions box, or any button or link required during the sign-up process, you approve of the text preceding, as may be modified through online posting of such modifications on www.myacn.com from time to time, and are entering into a legally binding agreement with ACN under these terms. You hereby agree to the use of electronic communication in order to enter into contracts and to place orders, and agree to the electronic delivery of notices, policies and records of transactions initiated or completed with respect to the Service. You further waive any rights or requirements under any laws or regulations in any jurisdiction, to the extent permitted under applicable law, which require an original (i.e., non-electronic) signature or delivery or retention of non-electronic records.

If you are residing in a jurisdiction which restricts the use of Internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age, and you are under such age limit, you may not enter into this Agreement or use the Service. Furthermore, if you are residing in a jurisdiction where it is forbidden by law to use the Service, you may not enter into this Agreement and you may not use the Service. By entering into this Agreement, you explicitly state that you have verified in your own jurisdiction that your use of the Service is allowed.

1. TERMS AND CONDITIONS
The terms and conditions stated herein are in lieu of and replace any and all terms and conditions set forth in any documents issued by End User, including, without limitation, purchase orders and specifications. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY END USER AT ANY TIME ARE HEREBY OBJECTED TO BY ACN, 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 ACN. No waiver or amendment to this contract or these terms and conditions shall be binding on ACN unless made in writing expressly stating that it is such a waiver or amendment and signed by an authorized signatory of ACN.

2. TERM
The term of this Agreement begins on the date that End User purchases Services and shall continue for a term as specified below based on date of purchase ("Initial Term"), unless otherwise indicated in the terms stated in the online order process for the service plan that is selected by End User ("Plan"). At the end of the Initial Term, the Agreement is automatically renewed for a one (1) year term ("Renewal Term"), unless End User provides ACN with thirty (30) days written notice for any End User that purchased Services prior to December 5, 2012 and sixty (60) days written notice for any End User that purchases Service on or after December 5, 2012 prior to the end of the Initial Term or any Renewal Term of its intention to cancel the Service. For the purpose of termination notification, written notice is defined as the completion and return of the termination email form which is available through ACN Customer Care. Expiration of the Term does not alleviate End User of responsibility for paying all unpaid, accrued charges due hereunder. If End User transfers or ports their phone number to another service provider, End User must contact ACN to cancel the Services provided to End User by ACN. If End User chooses to cancel the Service before the end of the current Initial or Renewal Term, Disconnection fees and/or Early Termination Fees may apply as set forth below.

Initial Term
The Initial Term for any End User that purchased Services prior to December 5, 2012, shall be two (2) years.
The Initial Term for any End User that purchased Services on or after December 5, 2012, shall be three (3) years.

3. 911/E911 DIALING
The Federal Communications Commission (FCC) requires that ACN provide E911 Service to all End Users who use  VoIP Services within the United States. This Section 3 applies to VoIP Service.

3.1 Limited Availability of Traditional 911/E911 Services
You acknowledge that ACN does not offer access to emergency services in a manner similar to that provided by wireline telephone services that are commonly referred to as either basic 911, or Enhanced 911 ("E911"). There are important limitations associated with this Service detailed throughout this Section 1. In some areas, the Service will provide the emergency operator with automatic location and call-back information if you dial the digits 9-1-1. This is E911. In other areas, the Service will not provide the emergency operator with automatic location and call-back information if you dial the digits 9-1-1. This is basic 911. The type of service offered to each subscriber will be based on the type of service available at the subscriber's location. The type of service offered to the subscriber will be indicated in the welcome email provided to the subscriber after the subscriber's service has been activated. Given the Service's limitations, you should have an alternative means of accessing 911 services. The 9-1-1 service on military installations does not function in the same manner as 9-1-1 for non-military base addresses. You should NOT rely on the ability to use your ACN Digital Phone Service to contact emergency services while on a military installation.

3.2 Notice
You should inform household residents, guests and other third parties that may be present at the location where you make use of the Service of the limitations associated with the Service's access to emergency services when the digits " 9-1-1 " are dialed. Specifically, you should advise such people of the potential unavailability and other limitations on basic 911 and/or E911, as detailed in this Agreement. Any Device that you use with the Service, along with any traditional telephone handsets connected to the Device, should include a warning sticker that informs any person who uses your account, with or without your permission, to access the Service (each a "User") of the potential unavailability of 911 or E911 services. Warning stickers should have been included with the Device and it is your responsibility to ensure that the labels are properly affixed to all Devices and handsets. Should you need additional or replacement stickers, please contact our Customer Care at the number found on www.myacn.com.

3.3 Registration of Physical Location Required
When you register for the Service, you must provide ACN with the physical location where you will be using the Service (the "Service Address"). THE SERVICE IS AVAILABLE ONLY AT THE SERVICE ADDRESS YOU PROVIDE TO ACN WHEN YOU SIGN UP FOR THE SERVICE. YOU WILL NOT HAVE ACCESS TO EMERGENCY SERVICES UNTIL YOU RECEIVE CONFIRMATION VIA EMAIL FROM ACN THAT YOUR EMERGENCY SERVICES FUNCTIONALITY HAS BEEN SUCCESSFULLY ACTIVATED. For each additional phone number that you add to your service, it will be for the Service Address on the account. The Service Address does not vary by phone number. You will receive separate confirmations for each phone number that you register for emergency services functionality. Further, in the event that you use your Service at a location other than the Service Address associated with the phone number of the Service, any call you make to emergency services may be sent to an emergency center near your originally registered address and not your actual physical location. In this situation, the emergency center may not be able to transfer your call to the appropriate emergency operator and may not be able to contact the relevant parties to provide you with assistance. Given these limitations, you should have an alternative means of accessing 911 services.

3.4 E911 Arrangements
ACN contracts with third parties to provide access to emergency services that includes call-back and location information in some locations. This type of access to emergency services is not offered in all areas of the country, but instead depends on the capabilities of each individual Public Safety Answering Point ("PSAP") as well as the ability of our third-party provider to offer such capabilities with VoIP calls. In those areas where offered and subject to the limitations of its third party providers, ACN, will route your emergency call to the PSAP with your telephone number and Service Address information (as provided at the time of Service sign-up). You hereby authorize ACN to disclose your name, telephone number, Service Address information, and other relevant identifying information to third-party service providers, including, but not limited to, call routers, call centers and PSAPs, for the purpose of dispatching emergency services personnel to your Service Address.

3.5. 911 Service Outages
3.5.1 Service Outages Due to Power Failure or Disruption
The Service, including 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. You acknowledge that ACN is not responsible for Service outages due to power failure or disruption 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 power failure or disruption 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 terminate the Service in accordance with this Agreement. In the event of outages due to a power failure or disruption, you agree that ACN is not required to provide you any credits or any other form of remuneration for the disruption of your Service.

3.5.2 Service Outages Due to Internet Outage or Suspension or Termination of Broadband Service or Internet Service Provider ("ISP") Service
Service outages or suspensions or terminations of service by your broadband provider or ISP will prevent all Service, including 911 dialing, from functioning. You acknowledge that ACN is not responsible for Service outages due to Internet outage or suspension or termination of broadband or ISP service by your ISP or broadband provider or any other impediment to your usage of the Service, and any loss of Service, including 911 dialing, that may result. In the event you lose Service as a result of an Internet outage or suspension or termination of your broadband or ISP service provider 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 terminate the Service in accordance with this Agreement. You agree that ACN is not required to provide you any credits or any other form of remuneration for the disruption of your service in the event of outages resulting from outages, suspensions or termination of service by your broadband provider or ISP.

3.5.3 Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts
Your ISP or 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. In that event, provided that you alert us to this situation, ACN will attempt to work with you to resolve the issue. During the period that the ports are being blocked or your service is impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Service, including 911 dialing, may not function. You acknowledge that ACN is not responsible for the blocking of ports by your ISP or broadband provider or any other impediment to your usage of the Service, and any loss of service, including 911 dialing that 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 terminate the Service in accordance with this Agreement. In the event of outages due to your broadband provider or ISP blocking the ports over which Service is provided, you agree that ACN is not required to provide you any credits or any other form of remuneration for the disruption of your Service.

3.5.4 Service Outage Due to Suspension or Termination of Your ACN Account
Service outages due to suspension or termination of your account will prevent all Service, including 911 dialing, from functioning.

3.5.5 Other Service Outages
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.

3.6 Network Congestion: Reduced Speed for Routing or Answering 911 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.

3.7 Alternate 911 / E911 Arrangements
IF YOU CARE TO AVOID THE LIMITATIONS OF ACN'S SERVICE WITH RESPECT TO 911 DIALING, YOU SHOULD OBTAIN AN ALTERNATE MEANS OF ACCESSING TRADITIONAL 911 OR E911 SERVICES, DEPENDING ON THE CAPABILITIES OF THE EMERGENCY RESPONSE CENTER RESPONSIBLE FOR YOUR LOCATION.

3.8 911 / E911 Limitation of Liability
IN NO EVENT SHALL ACN ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS OR ANY OTHER THIRD-PARTY PROVIDER OR ITS OFFICERS, DIRECTORS OR EMPLOYEES WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE HELD LIABLE FOR ANY CLAIM, DAMAGE, OR LOSS. YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION, ARISING FROM OR RELATING TO 911 DIALING UNLESS IT IS PROVEN THAT THE ACT OR OMISSION PROXIMATELY CAUSING THE CLAIM, DAMAGE, OR LOSS CONSTITUTES GROSS NEGLIGENCE, RECKLESSNESS, OR INTENTIONAL MISCONDUCT ON THE PART OF ACN.

ACN DOES NOT HAVE ANY CONTROL OVER WHETHER, OR THE MANNER IN WHICH, 911 CALLS USING OUR SERVICE ARE ANSWERED OR ADDRESSED BY ANY LOCAL EMERGENCY RESPONSE CENTER. ACN DISCLAIMS ALL RESPONSIBILITY FOR THE CONDUCT OF LOCAL EMERGENCY RESPONSE CENTERS AND THE NATIONAL EMERGENCY CALLING CENTER. ACN RELIES ON THIRD PARTIES TO ASSIST US IN ROUTING 911 CALLS TO LOCAL EMERGENCY RESPONSE CENTERS. ACN DISCLAIMS ANY AND ALL LIABILITY OR RESPONSIBILITY IN THE EVENT SUCH THIRD PARTY DATA USED TO ROUTE CALLS IS INCORRECT OR YIELDS AN ERRONEOUS RESULT.

3.9 ACN COMPANION

NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (i) ACN COMPANION IS NOT INTENDED, DESIGNED OR FIT FOR PLACING, CARRYING OR SUPPORTING EMERGENCY CALLS; (ii) THAT THE SOFTWARE IS NOT INTENDED, DESIGNED OR FIT FOR PLACING, CARRYING OR SUPPORTING ANY CALL TO ANY EMERGENCY SERVICE OR ANY CALL FOR THE PURPOSE OF OBTAINING ASSISTANCE, HELP OR AID IN THE EVENT OF AN EMERGENCY; and (iii) NEITHER ACN NOR ANY OF ITS AFFILIATES, SUBSIDIARIES, PARENT COMPANIES, AGENTS, PARTNERS, OR EMPLOYEES ARE OR WILL BE LIABLE TO YOU OR ANY THIRD PARTY IN ANY RESPECT FOR ANY COSTS OR DAMAGES ARISING EITHER DIRECTLY OR INDIRECTLY FROM THE USE OF THE SOFTWARE FOR EMERGENCY CALLS, INCLUDING CALLS TO EMERGENCY SERVICES AND CALLS FOR THE PURPOSE OF OBTAINING ASSISTANCE, HELP OR AID IN THE EVENT OF ANY EMERGENCY.

4. EQUIPMENT AND SERVICE
4.1 RETURNS
To provide certain Services, ACN may provide certain Devices to End User. All Equipment shipments are F.O.B. ACN's facility or the facility of any third party contracted to fulfill Equipment orders. ACN's liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to End User upon delivery to carrier. End User will be provided with the Equipment manufacturer's warranty from the date of purchase of Equipment. End User may return any Equipment within the manufacturer's warranty period at no cost other than End User's shipping costs, provided that (i) End User must first obtain a return materials authorization ("RMA") from ACN to return any Equipment by calling ACN customer service at 866-643-0010, and (ii) such Equipment must be returned to the location specified in the RMA in new condition in the original packaging or equivalent within twenty-one (21) calendar days of receipt of RMA shipping label and in no event later than the manufacturer's warranty period. ACN is not responsible for any late returns resulting from any End User delay in obtaining a RMA or otherwise. Any returns not in compliance with (i) and (ii) above may be refused and shall be subject to restocking, non-returned equipment and/or refurbishment fees up to the full retail price of the Equipment. End User shall be responsible for all costs related to shipping to ACN any Equipment that is being returned. 

4.2 SHIPPING FEES
ACN standard method of shipping is via ground transportation. ACN may impose additional shipping fees for expedited equipment shipments, additional shipments due to End User refusing deliveries, and/or special handling requests.

4.3 SERVICE REQUIREMENTS
You acknowledge and understand that the Service does not function in the event of power failure. You also acknowledge and understand that the VoIP Service requires a fully functional broadband connection to the Internet (which may not be provided by ACN) and that, accordingly, in the event of an outage of, or termination of service with or by, your ISP and/or broadband provider, the VoIP Service will not function, but that you will continue to be billed for the VoIP Service unless and until you or ACN terminate the VoIP Service in accordance with this Agreement. Furthermore, certain Services require a static Internet Protocol (IP) address for maintenance and diagnostics. End User will be instructed whether a static IP address is required for Service during the ordering process. The static IP address is provided by the high-speed internet provider. End User is responsible for obtaining, maintaining and paying for the static IP address. Should there be an interruption in the power supply or Internet outage, the Service will not function until power is restored or the Internet outage is cured. A power failure or disruption may require the Customer to reset or reconfigure equipment prior to utilizing the Service. Power disruptions or failures or Internet outages will also prevent dialing to emergency service numbers including the E911 calling feature. Should ACN suspend or terminate your Service, the Service will not function until such time as ACN restores your Service (which may require payment of all invoices and reconnection fees owed by you or cure of any breach by you of this Agreement). In the event of outages due to Internet or power failure, you agree that ACN is not required to provide you any credits or any other form of remuneration for the disruption of your Service. If ACN terminates your Service for the foregoing reason, you agree to be responsible for the full month's charges to the end of the current term, including without limitation unbilled charges (including any overage charges), plus a disconnect fee. You acknowledge and agree that all of such charges will immediately become due and payable and you consent to ACN, at ACN's discretion, immediately charging such amounts to your credit card or other payment method or electronically withdrawing such amounts from your bank account.

5. BILLING, CHARGES AND PAYMENT
5.1. PAYMENT
Upon purchase of the Service, End User must provide ACN with a valid credit card number from an issuer that is accepted by ACN. End User authorizes ACN to charge the credit card number provided by End User ("Credit Card") for all charges arising from End User's use of the Services. End User agrees to notify ACN of any change to the credit card information including, but not limited to, changes in account number, expiration date or billing address. ACN shall not be responsible for any charges made by the Credit Card issuer to End User's Credit Card account for exceeding credit limit, insufficient funds or other reasons. Estimated ship dates of Equipment are approximate and are not guaranteed.

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

5.3. BILLING
ACN will provide End User with a monthly on-line billing statement for the Services and bill all charges invoiced to End User's account to the Credit Card. Such charges shall include activation fees, monthly service fees, shipping charges, 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 subsequent to the end of each month's service. ACN reserves the right to charge the Credit Card for charges, due if at any time End User's cumulative charges for the current month exceed fifty dollars ($50.00). Billing for monthly service fees commences upon purchase of the Services on the web site, 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. All fees, including service fees, payable under the applicable term Plan shall be non-refundable and non-creditable. 

5.4. LATE/NON-PAYMENT
If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment or declined Credit Card charges, ACN may suspend or terminate the Services and all accrued charges shall be immediately due, plus a late fee of the lesser of 1.5% per month or the maximum allowed by law accrued from the date of invoice until payment in full is received by ACN and Disconnection and/or Early Termination Fees. If charges cannot be processed to the Credit Card, End User will be charged a fee of twenty-five dollars ($25.00). The fee will also be charged to activate a suspended account. No suspension or termination of the Services or of this Agreement shall relieve End User from paying any amounts due hereunder. 

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

5.6. REGULATORY RECOVERY FEE
A Regulatory Recovery Fee will be charged monthly to offset costs incurred by ACN in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The Regulatory Recovery Fee will apply to every telephone line assigned, including toll free and virtual numbers.

5.7. TRIAL PERIOD
ACN may offer a limited term trial period ("Trial Period") to certain End Users ("Trial End Users") as indicated in their online application for the Services. The Trial Period commences upon the purchase of Services by Trial End User on the DigitalTalk web site. If Trial End User is not satisfied with the Services during the Trial Period, Trial End User may obtain a refund of the Equipment and activation fee but not the monthly service fee. Applicable taxes will be refunded to the extent allowed by law. Shipping charges will not be refunded. To obtain a refund, Trial End User must: a) Notify ACN within (i) thirty (30) days of purchase of the Services, if you ported your number to ACN in connection with your Service Activation, in any other case, (ii) notify ACN within ten (10) days of purchase of The Services b) comply with ACN's return policy set forth in Section 4 above, and c) return the Equipment within seven (7) days of cancellation of the Services. Disconnection fees shall not apply if Trial End User cancels service during the Trial Period.

5.8. DISCONNECTION, OVERAGE AND CONVERSION FEES
If you terminate the VoIP or fax Services within the first thirty (30) days, of placing your order, you will receive a full refund if you return the Device(s) pursuant to the RMA process. However, if during the Initial Term, you terminate the VoIP Service after thirty (30) days of placing your Order, ACN may charge you an early termination fee ("ETF") of $150.00 per extension. If you terminate high speed internet, prior to installation you will receive a full refund; however, if you cancel after installation you will be responsible for an ETF as specified in the HSI Agreement. ETFs may apply to individual phones or extensions added in the middle of the term that have not themselves been activated for a period equal to the fixed term of the Agreement, even if the term of End User's Agreement has been completed in full.

5.9. ACCEPTABLE USAGE POLICY
ACN reserves the sole right to apply an additional "high-usage" fee to, to disconnect, or to switch to another plan, any user who abuses the Acceptable Usage Policy set forth in this Section. DigitalTalk End Users with a service plan that includes unlimited calling requires that such End Users have a typical business calling pattern, as defined by ACN. Unlimited Calling is not available to End Users with excessive call behavior, which is to be exclusively determined by ACN. By using the DigitalTalk services, End User agrees to comply with this Acceptable Usage Policy. When ACN becomes aware of an alleged violation of its Acceptable Usage Policy, ACN will conduct an internal investigation. During the investigation ACN may restrict the End User's access in order to prevent further possible unauthorized activity. Depending on the severity of the violation, ACN may, at its sole discretion, restrict, suspend, or terminate the End User's service. ACN does not issue service credits for any outages incurred through service disablement resulting from Acceptable Usage Policy violations nor does ACN accept any responsibility and/or liability with respect to any damages whatsoever incurred due to a violation of this Acceptable Usage Policy.

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

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

5.12. BILLING DISPUTES
End User must dispute any charges for the Services in writing within thirty (30) days of the date of the charge by ACN or End User waives any objection and further recourse. Written statements disputing charges must be sent to: Billing Department ACN, Inc. Attn: DigitalTalk Disputes, 1000 Progress Place, Concord, NC 28025.

6. TOLL CHARGES
Every call to or from Equipment using the Services that originates or terminates in the Public Switched Telephone Network ("PSTN"), including other VoIP networks, is subject to the then applicable toll charges that are associated with End User's Plan. Calls to a phone number outside the United States and Canada to a non-ACN telephone number will be charged at the current rates published on the DigitalTalk website. The duration of each call is to be calculated in one minute increments and rounded up to the nearest one minute increment for any fraction of minutes used. If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. If the computed charges for taxes and surcharges include a fraction of a cent, the fraction is rounded up to the nearest whole cent. When End User dials an International PSTN phone number, including other VoIP networks, charges may apply regardless of whether the party on the other line answers the call. Calls made by an End User to an International mobile, rather than landline, or premium rate telephone number, may result in higher toll charges.

7. LOST, STOLEN, ALTERED OR BROKEN EQUIPMENT
End User shall not modify the Equipment in any way without the express written permission of ACN. End User shall not use the Equipment except with the Services provided hereunder. Except as otherwise provided for hereunder, End User is responsible for all lost, stolen or broken Equipment and may be required to purchase a replacement to continue service. ACN may impose replacement or repair charges, will be based on the fair retail price of Equipment, plus applicable shipping costs and taxes. End User shall immediately notify ACN of any lost or stolen Equipment and shall cooperate with ACN in all reasonable aspects to eliminate actual or potential unauthorized use of the Equipment. At ACN's sole option, failure to report lost or stolen equipment in a timely manner will cause End User to be responsible for all service fees accrued until the time that ACN is informed of the loss or theft and can effect a termination of the Services.

8. PROHIBITED USES
Any use of the Services or any other action that causes a disruption in the network integrity of ACN or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services at the sole discretion of ACN. End User understands that neither ACN nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. End User agrees that it will NOT use the Services in ways that violate laws (including but not limited to laws prohibiting transmission of unsolicited fax advertisements or laws on obtaining 3rd party consent for call recording), infringe the rights of others, or interfere with the users, services, or equipment of the network. End User agrees and represents that it is purchasing the Services and/or the Equipment for its own internal use only, and shall not resell, transfer or make a charge for the Services or the Equipment without the advance express written permission of ACN. ACN's Service Plans for business End Users that offer unlimited minutes of PSTN calls ("Unlimited PSTN Plans") or unlimited faxing are for reasonable business use of End User only. Such use shall not include certain activities including, but not limited to, any autodialing, continuous or extensive call forwarding, continuous connectivity, fax broadcast, fax blasting, telemarketing (including without limitation charitable or political solicitation or polling), call center operations, junk faxing, fax spamming, calling/faxing any person (through the use of distribution lists or otherwise) who has not given specific permission to be included in such a process or any other activity that would be inconsistent with reasonable business usage. End User shall not transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. End Users further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. Any use found to be inconsistent with this restriction will result in termination of the Service and ACN can recover from you the costs and expenses for any harm caused to ACN or its vendors. ACN reserves the right to immediately terminate or modify the Services of any End User End User's reasonable business use. Additionally, ACN's Acceptable Use Policy is hereby incorporated into this Agreement.

9. USE, STORAGE AND OTHER LIMITATIONS
ACN reserves the right to establish or modify general practices and limits concerning use of the Services and software, including without limitation, the maximum number of days that content will be retained by the Service, the maximum disk space and/or bandwidth capacity that will be allotted on servers owned and/or operated by ACN on End User's behalf, if any. Where practical, ACN will provide the End User with prior notice of such new or modified practices; provided however, that ACN shall have the absolute right to implement such new or modified practices without prior notice in its sole discretion and without liability or any kind.

10. ELECTRONIC RECORDING
End User acknowledges and understands that there are federal and state statutes governing the electronic recording of telephone conversations and that ACN will not be liable for any illegal use of the Service. Because End User circumstances vary widely, End Users should carefully review their own circumstances when deciding whether to use the recording features of the service and it is the End User's responsibility to determine if the electronic recordings are legal under the federal and state statutes. ACN is not responsible for any misinterpretation, lack of understanding or lack of knowledge regarding the use of electronic recordings or the use of its products by the End User whether legal or illegal.

11. RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF END USER COMMUNICATIONS
End Users are solely responsible for maintaining the confidentiality of End User password and account, and agree not to transfer email address or password, or lend or otherwise transfer use of or access to the ACN Service, to any third party. End Users are also solely responsible for any and all activities that occur under End User account. End User agrees to immediately notify ACN of any unauthorized use of End User account or any other breach of security related to End User account or the DigitalTalk Service, and to ensure that End User "log off"/exit from End User account (if applicable) at the end of each session. ACN is not liable for any loss or damage arising from End User failure to comply with any of the foregoing obligations. In consideration for using the DigitalTalk Service, End User agrees to: (1) provide certain current, complete, and accurate information about End User when prompted to do so by the DigitalTalk Service, and (2) maintain and update this information as required to keep it current, complete and accurate. End User agrees that any such information shall be accurate. End User agrees that End User are solely responsible for the content of all visual, written or audible communications ("Content") sent by End User or displayed or uploaded by End User in using the Services. End User agrees that End User will not use the Services to send unsolicited commercial e-mail outside End User Company or organization in violation of applicable law. End User further agrees not to use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation. Recognizing the global nature of the Internet, End User also agree to comply with applicable local rules or codes of conduct (including codes imposed by End User's employer) regarding online behavior and acceptable content and the transmission of technical data exported from the United States. ACN reserves the right to investigate and take appropriate action against anyone who, in ACN's sole discretion, is suspected of violating this provision, including without limitation, reporting End User to law enforcement authorities. Use of the Services is void where prohibited. Although ACN is not responsible for any such communications, ACN may delete any such communications of which ACN becomes aware, at any time without notice to End User. End User retains copyright and any other rights already held in Content which End User submits, posts or displays on or through, the Services. End User understands and agrees that by displaying, exchanging or uploading Content to an ACN website, transmitting Content using the Services or otherwise providing Content to ACN, End User automatically grants (and warrants and represents that End User has a right to grant) to ACN a world-wide, royalty-free, sublicensable (so ACN affiliates, contractors, resellers and partners can deliver the Services) perpetual, irrevocable license to use, modify, publicly perform, publicly display, reproduce and distribute the Content in the course of offering the Site and/or the Services.

12. RESPONSIBILITY FOR CONTENT OF OTHERS
Be advised that other users of the Services ("Users") may violate one or more of the above prohibitions, but ACN assumes no responsibility or liability for such violation. If End User becomes aware of misuse of the Services by any person, please contact ACN Customer Support. ACN may investigate any complaints and violations that come to its attention and may take any action that it believes is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or User profiles and/or logins. However, because situations and interpretations vary, ACN also reserves the right not to take any action. 

13. CHANGES TO THE AGREEMENT, SERVICES OR PLAN
ACN may change the rates, charges, terms and conditions of the Services from time to time. ACN also reserves the right to discontinue certain Services. Any such changes will be posted on the DigitalTalk website and any such future changes are hereby incorporated by reference into this Agreement. ACN will not provide End User with advance notice of changes to taxes and surcharges, except as required by applicable law. If End User continues to subscribe to, use or pay for ACN's services after any changes in the rates, charges, terms and conditions of Services, End User agrees to such changes by such use. 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 or early termination fees. End User may request a Plan change at any time, subject to any applicable change of service fee and additional terms and conditions.

14. TERMINATION
End User shall be responsible for the full monthly service fee for the month during which the notice of termination of service is provided to ACN. In accordance with Section 5.8, Disconnection Fees may apply. ACN reserves the right, at its sole discretion, to suspend, terminate or change the Services without advanced notice for any reason, including without limitation, misuse of the Services in any way, End User's breach of this Agreement, End User's failure to pay any sum due hereunder, suspected fraud or other activity by End User that adversely affects the Services, ACN, ACN's network, or other End User's use of the Services. ACN reserves the right to determine, at its sole discretion, what constitutes misuse of the Services and End User agrees that ACN's determination is final and binding on End User. ACN may require an activation fee to change or resume a terminated or suspended account.

15. PRIVACY
ACN utilizes the public Internet and third party networks to provide its Services. Accordingly, ACN cannot guarantee the security of its Services. ACN is not liable for any lack of privacy which may be experienced with regard to the Service. Please refer to our Privacy Policy

16. CUSTOMER PROPRIETARY NETWORK INFORMATION (CPNI)
To inform you of other ACN related products and services, ACN may access information related to your account(s). CPNI, or information such as the kind of services that you have, how you use them, and how they are billed may be accessed by ACN. Federal law restricts the use of CPNI for purposes other than providing service, without the customer's approval. If you do not want ACN to access and use CPNI (except as otherwise permitted by law), you must contact us in writing. Until you notify us otherwise, ACN understands that you have approved ACN's internal use of CPNI for purposes reasonably related to ACN's offering or provisioning of other services to you. This consent survives the termination of your Service and survives until you remove it. A denial of permission for ACN to use CPNI will not affect the provision of any service to which you are subscribing nor would there be any charge to you for such denial. Denial would not restrict ACN from contacting you for marketing purposes, but may limit ACN from tailoring specific products to suit your needs. If you contact ACN about any product or service, ACN retains the ability to access your CPNI to inform you about those products or services. ACN is not liable for any lack of privacy that may be experienced with regard to your service. By signing up for the service, you authorize ACN to monitor and record calls to ACN concerning your account or the service and you consent to the use of automatic dialing equipment in order to contact you. ACN has the right to intercept and disclose any transmissions over our facilities in order to protect our rights and/or property or pursuant to court order or subpoena.

17. REPRESENTATIONS AND WARRANTIES
You agree and warrant that: (i) neither your registration nor use of the any of the Services nor the manner in which you intend to use such Services will directly or indirectly infringe the legal rights of a third party, (ii) you have all requisite power and authority to execute this Agreement and to perform your obligations hereunder, (iii) you have selected the necessary security option(s) for your domain name registration record, (iv) you agree to provide certain true, current, complete and accurate information about you as required by the application process; and maintain and update this information you provided to us when purchasing the Services as needed to keep it current, complete and accurate, and (v) you agree to comply with all applicable laws and regulations.

18. TECHNICAL SUPPORT
ACN provides technical support to End Users via telephone and e-mail for the Services and the Equipment provided hereunder. Support for other applications and uses is not provided or implied.

19. LICENSE:
Through our Services you may be provided with, including without limitation objects images, photographs, templates, animations, video, audio, music, text and "applets", and "online" or electronic documentation (together called the "Digital Content"). You may use, modify and publish the Digital Content in accordance with the terms of this Agreement. Any supplemental software code and supporting materials provided to you as part of support services for the Digital Content shall be considered part of the Digital Content and are subject to the terms and conditions of this Agreement. The copyright and all other rights to the Digital Content shall remain with the license holder. Permitted use of the Digital Content includes: incorporating the Digital Content into your own original work and publish your work in a web site provided that the Digital Content is incorporated for viewing purposes only and no permission is given to download or save the Digital Content for any reason; and you continue to pay for the Services. Unauthorized uses of Digital Content include: post web pages containing the Digital Content on servers other than those owned or operated by ACN or its vendors; use the Digital Content for any purpose, if you no longer pay for our Services; use the Digital Content to create printed or "hard copy" documents; use the Digital Content in electronic format, on-line or in multimedia applications unless the Digital Content is incorporated for viewing purposes only and no permission is given to download or save the Digital Content for any reason; use the Digital Content in Web page design whereby the Digital Content is in a format designed or intended for storage or re-use by others; use or permit the use of the Digital Content or any part thereof as a trademark or service mark, or claim any proprietary rights of any sort in the Digital Content or any part thereof; use the Digital Content with images of identifiable individuals, products or entities in a manner that suggests their association with or endorsement of any product or service; create scandalous, obscene, defamatory or immoral works using the Digital Content, nor use the Digital Content for any other purpose which is prohibited by law; translate, reverse engineer, decompile, or disassemble the Digital Content; rent, lease, assign, transfer or redistribute the Digital Content or a copy thereof, to another person or legal entity; or use the Digital Content or make copies of it except as permitted in this Agreement.

20. BREACH
In the event of End User's breach of the terms of the Agreement, including without limitation, failure to pay any sum due hereunder, End User shall reimburse ACN for all attorney, court, collection and other costs incurred by ACN in the enforcement of ACN's rights hereunder and ACN may keep any deposits or other payments made by End User.

21. INDEMNIFICATION
End User agrees to defend, indemnify and hold harmless ACN, its officers, directors, employees, affiliates and agents and any other third-party provider who furnishes products or services to the End User in connection with this Agreement or the Service or Device (and, at ACN's option, either defend ACN and/or its service providers or pay ACN and/or its service providers cost of defense) from and against all claims, losses, damages, fines, liabilities, penalties, costs and expenses of any nature whatsoever ("Liability"), including reasonable attorneys' fees, related to or arising from: (a) the use of the Service by End User or any User; (b) any violation of applicable laws, regulations or this Agreement by you or any User; (c) negligent acts, errors or omissions by you or any User; (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 gross negligence or willful misconduct of ACN; (e) claims for infringement of any intellectual property rights arising from your or any Users' use of the Service, Software, the Internet, Personal Data or Content; (f) claims arising from Content transmitted by or to you or Users; (g) the use of the Services with any interface devices not provided by ACN; or (h) the absence, failure or outage of the Service, including the 911 emergency response service accessible through the Services, and/or the inability of you or any User to be able to access emergency response center personnel, whether arising out of misrouting of 911 calls due to your failure to provide ACN with accurate and up-to-date Service Address information or other information or your failure to follow activation procedures for 911 calling. This Section shall survive termination of this Agreement.

22. DISCLAIMER OF CONSEQUENTIAL DAMAGES
IN NO EVENT SHALL ACN OR ITS VENDORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE OR THE SETUP, CANCELLATION OR TERMINATION OF SERVICES OR PRODUCTS PROVIDED HEREUNDER WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF ACN OR ITS VENDORS OR OTHERWISE. 

23. LIMITATION OF LIABILITY
IN ADDITION TO THE DISCLAIMERS OF LIABILITY ELSEWHERE IN THIS AGREEMENT, IN NO EVENT SHALL ACN, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS OR ANY OTHER THIRD-PARTY PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICE, INCLUDING E911 DIALING, AT ANY TIME OR FROM TIME TO TIME, OR ANY INTERRUPTION OR DEGRADATION OF VOICE QUALITY THAT IS CAUSED IN WHOLE OR IN PART BY ANY OF THE FOLLOWING:

ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR OR OTHER THIRD PARTY. INCLUDING BUT NOT LIMITED TO SUCH CARRIER, SERVICE PROVIDER, OR VENDOR’S UNDERLYING NETWORK MANAGEMENT PRACTICES.
EQUIPMENT, NETWORK OR FACILITY FAILURE.
EQUIPMENT, NETWORK OR FACILITY UPGRADE OR MODIFICATION.
FORCE MAJEURE EVENTS SUCH AS (BUT NOT LIMITED TO) ACTS OF GOD; TERRORISM, STRIKES;
FIRE; WAR; RIOT; GOVERNMENT ACTIONS.
EQUIPMENT, NETWORK OR FACILITY SHORTAGE.
EQUIPMENT OR FACILITY RELOCATION.
SERVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER.
OUTAGE OF CUSTOMER'S ISP OR BROADBAND SERVICE PROVIDER.
ACT OR OMISSION OF CUSTOMER OR ANY PERSON USING THE SERVICE PROVIDED TO CUSTOMER.
ANY OTHER CAUSE THAT IS BEYOND ACN's CONTROL, INCLUDING WITHOUT LIMITATION A FAILURE OF OR DEFECT IN ANY SERVICE, THE FAILURE OF AN INCOMING OR OUTGOING COMMUNICATION, THE INABILITY OF COMMUNICATIONS (INCLUDING WITHOUT LIMITATION 911 DIALING) TO BE CONNECTED OR COMPLETED, OR DEGRADATION OF VOICE QUALITY;
UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT NUMBER, PASSWORD OR SECURITY AUTHORIZATION OPTION;
ERRORS, OMISSIONS OR MISSTATEMENTS IN ANY AND ALL INFORMATION OR SERVICES
DELETION OF OR FAILURE TO STORE EMAIL MESSAGES;
INABILITY TO USE THE EMAIL SERVICE;
PROCESSING YOUR APPLICATION FOR SERVICES, THE PROCESSING OF ANY AUTHORIZED MODIFICATION OF YOUR DOMAIN NAME RECORD OR YOUR AGENT'S FAILURE TO PAY ANY FEES, INCLUDING THE INITIAL REGISTRATION FEE OR RE-REGISTRATION FEE; AND
APPLICATION OF THE DISPUTE POLICY.
ACN'S AGGREGATE LIABILITY FOR (I) ANY FAILURE OR MISTAKE; (II) ANY CLAIM WITH RESPECT TO ACN'S PERFORMANCE OR NONPERFORMANCE HEREUNDER OR (III) ANY ACN ACT OR OMISSION IN CONNECTION WITH THE SUBJECT MATTER HEREOF SHALL IN NO EVENT EXCEED THE SERVICE CHARGES FOR ONE MONTH.

IN NO EVENT SHALL ACN, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER, VENDOR OR LICENSOR WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO BE ABLE TO DIAL E911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT, INFRINGEMENT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT ACN WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.

24. DISCLAIMER OF WARRANTY
ACN will provide a limited warranty on the Device as to manufacturing defects only for a period of one (1) year from the date of purchase. This limited warranty does not apply to any defect or failure other than a manufacturing defect, and, without limiting the generality of the foregoing, does not apply to any defect caused by damage in transit, retailer handling or End User handling. An End User's sole remedy for any breach of this limited warranty is to obtain a repaired or replacement Device, by following the return procedures. The limited warranty will also apply in lieu of the limited warranty included with the Device if such included limited warranty is less favorable to Customer than that contained herein. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICE IS PROVIDED "AS IS." ACN, ITS AGENTS, AND VENDORS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE OR THE DEVICE WILL MEET CUSTOMER'S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, ACN, ITS AGENTS AND VENDORS DO NOT WARRANT THAT THE SERVICE OR THE DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER ACN NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, THE SERVICE OR THE DEVICE WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO ACN'S OR END USER'S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, END USER'S CONTENT, DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF ACN'S OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY ACN OR ACNS AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOAD OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES IS DONE AT YOUR OWN DISCRETION AND RICK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.

25. CONTENT
You are responsible for any and all liability that may arise out of the content transmitted by or uploaded to you or Users using the Services ("Content"). End User hereby grants a non-exclusive, non-transferable, license to ACN and its third-party providers to use such Content, but solely in connection with and only for the term of the Service. You shall assure that your or User's Content and use of the Services will at all times comply with all applicable laws, regulations and written and electronic instructions for use. ACN reserves the right, in addition to its other rights and remedies, to terminate or suspend affected Services, and/or remove your or Users' Content from the Services, if ACN determines that such use or Content does not conform with the requirements set forth in this Agreement or interferes with ACN's ability to provide Services to you or others or ACN receives notice from anyone that your or Users' use or Content may violate any laws, regulations, the Acceptable Use Policy or the Privacy Policy. ACN's actions or inaction under this Section shall not constitute review or approval of your or Users' use or Content.

26. EXPORT COMPLIANCE
End User agrees to comply with U. S. export laws concerning the transmission of technical data and other regulated materials via the Services. End User agrees to comply with applicable local, state and federal regulations governing the locality in which the Equipment and Services are used.

27. SOFTWARE COPYRIGHT
Any software used by ACN to provide the Services and any software provided to End User in conjunction with providing the Services are protected by copyright law and international treaty provisions. End User may not copy the software or any portion of it.

27.1 ACN Companion

Notwithstanding anything to the contrary in this Agreement, this Section shall apply to ACN Companion. This Agreement grants you a personal, non-exclusive, non-transferable, non-sublicensable right to install, use, access, display and run one copy of the ACN Companion software on a single computer, such as a workstation, terminal or other device ("Workstation Computer"). ACN Companion may not be used by more than one processor at any one time on any single Workstation Computer. ACN reserves all rights in the ACN Companion software not expressly granted herein, including without limitation ownership and proprietary rights. You may not reproduce or distribute the ACN Companion software for any purpose whatsoever. Without limiting the foregoing, you may not copy or upload the ACN Companion software or any part thereof to any server or location for reproduction or distribution. You may not reverse engineer, decompile, disassemble, translate, reconstruct, transform or extract the ACN Companion software or any portion of the ACN Companion software. You may not publish the ACN Companion software or any related license numbers.  ACN reserves the right to modify the ACN Companion software in any manner whatsoever, at any time, without providing notice to you. The restrictions contained herein apply equally to any modifications or updates to the ACN Companion software that you may obtain.

28. SURVIVAL
The provisions of Sections 3, 5, 16, 17, and 19 through 37 shall survive any termination of the Agreement.

29. AMENDMENTS
ACN may change this Agreement, including the Acceptable Use Policy, Privacy Policy and rates applicable to the Service, at any time, and from time to time, in its sole discretion. ACN also reserves the right to discontinue certain services. Any changes made to this Agreement by ACN may apply: (1) upon the day of execution or posting of amended Agreement on the ACN website, or (2) prospectively to some specified date in the amendment. No amendment shall apply retroactively from the date of the change. Notice of such changes will be deemed to be effective on the date the updated Agreement is posted to the ACN web site. You may review the current Agreement, including the Acceptable Use Policy, Privacy Policy and rates applicable to the Service, at any time by visiting myacn.com. Please review these documents at www.myacn.com periodically to familiarize yourself with the most current version. This Agreement as posted supersedes all previously agreed to electronic and written versions of this Agreement.

30. RESALE, ASSIGNMENT, and TRANSFER
You may not change any term of this Agreement. You may not resell any Service or transfer or assign this Agreement or the use of ACN service without the express prior written consent of ACN. All terms and conditions of service in this Agreement will apply to all such permitted assignees or transferees. Such transfer or assignment, when permitted, shall only apply where there is no interruption of the use or location of the service. 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 will have no further obligations to you. If subscriber is a business entity, ACN may rely on the creditworthiness of subscriber's ownership before providing or continuing to provide any service. If subscriber's ownership changes, Subscriber agrees to notify ACN within 5 business days and provide such information as ACN may request so that ACN may assess the creditworthiness of Subscriber's new ownership. ACN reserves the right to suspend or terminate any service upon a change in ownership of Subscriber. Subscriber agrees that any such suspension or termination will have no effect on amounts owed by Subscriber to ACN in connection with the service and that ACN may immediately call any such amounts due. If ACN terminates service due to a creditworthiness concern or for any reason other than convenience following an ownership change, as determined by ACN, Subscriber agrees that any early termination fees for Subscriber's early cancellation or termination of service, will still apply.

31. FORCE MAJEURE (EVENTS BEYOND OUR CONTROL)
ACN shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties of ACN as may occur in spite of ACN's best efforts.

32. DISPUTE RESOLUTION AND ARBITRATION.
PLEASE READ THIS SECTION OF THESE TERMS CAREFULLY, AS IT PROVIDES FOR THE RESOLUTION OF MOST DISPUTES THROUGH BINDING ARBITRATION.  YOU WILL CONTINUE TO HAVE CERTAIN RIGHTS TO SEEK RELIEF FROM AN APPROPRIATE GOVERNMENTAL REGULATORY AGENCY.

32.1. If you have a dispute arising from or relating to your Service, Plan, or otherwise arising from or relating to this Agreement (a "Dispute"), please first call ACN Customer Care at 1-877-226-1010.  

32.2. As evidenced by this Agreement, the Service is an interstate commerce transaction and this Section 32 is therefore governed by the Federal Arbitration Act. All Disputes (in any case, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal or equitable theory) must be resolved by final and binding arbitration, pursuant to the Commercial Dispute Resolution Procedures (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as in effect at the time of the arbitration, and as modified herein. You may contact AAA in writing at one of its locations (e.g. The Rotunda, 4201 Congress Street, Suite 125, Charlotte, NC 28209). You may also obtain additional information about AAA and its procedures from AAA's website, at www.adr.org. Notwithstanding the foregoing, either you or ACN may bring an individual action against the other party in small claims court. 

32.3. Prior to commencing an arbitration proceeding with the AAA, a party seeking to arbitrate any Dispute must send to the other party, via certified mail, a written Notice of Dispute ("Notice"). The Notice to ACN must be addressed to: ACN Customer Care, 1000 Progress Place, Concord, NC 28025-2449 ("Dispute Notice Address"). The Notice must (a) describe the nature and basis of the claim or Dispute; and (b) describe the specific relief sought. You and ACN each expressly agree to attempt to resolve any Dispute by first sending the Notice to the other party, prior to initiating or commencing an arbitration proceeding with the AAA.

32.4. If a Dispute is not satisfactorily resolved within sixty (60) days after the Notice is received, either party may then commence an arbitration proceeding with the AAA. Any Dispute must be brought within one (1) year after the date on which the basis for the Dispute first arises. Any arbitration proceeding shall be fully resolved within six (6) months from the date of commencement, unless otherwise agreed in writing.

32.5. In conducting the arbitration, and in making any award, the arbitrator will be bound by and must strictly enforce the terms of the Agreement, and will not expand, limit, or otherwise modify the terms of the Agreement. The arbitrator will not award damages that are not expressly authorized by the Agreement. The arbitrator will not have authority to award punitive or exemplary damages or attorneys' fees. You and ACN expressly waive any claims for an award of damages that are excluded under the Agreement.

32.6. The arbitration will be based only on written submissions of the parties, and the documents submitted to the AAA relating to the Dispute, unless either party requests that the arbitration be conducted pursuant to the AAA's in-person, telephonic, or on-line procedures. If the amount involved in the Dispute is less than $10,000, the arbitration will be conducted in the county of the last billing address of your Service. If the amount in dispute is $10,000 or more, the arbitration will be conducted in Charlotte, North Carolina. You have the right to be represented by an attorney in any arbitration.

32.7. You must pay the applicable AAA filing fee when you submit your written request for arbitration to the AAA. Unless otherwise provided for in the AAA Rules, or in the arbitration award, all other administrative fees and expenses of arbitration, including the fees and expenses of the arbitrator, will be divided equally between you and ACN. The prevailing party may seek to recover from the other party the AAA's fees and the expenses of the arbitrator. If you select an in-person, telephonic, or on-line arbitration process, you must pay your share of any higher administrative fees and costs for the process you select.

32.8. Unless applicable substantive law provides otherwise, each party will pay its own expenses to participate in the arbitration, including attorneys' fees and expenses for witnesses, document production, and evidence presentation.

32.9. All post-award proceedings will be governed by the Federal Arbitration Act. Any award may be confirmed and enforced in any court of competent jurisdiction. The arbitration will be confidential. Neither you nor ACN may disclose the existence, content, or results of the arbitration, except to confirm and enforce the award, or as may be required by law.

32.10. CLASS ARBITRATION WAIVER. Each Dispute will be resolved on an individual basis. YOU AND ACN SPECIFICALLY AGREE THAT YOU AND ACN MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A CLAIMANT OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. This Agreement does not allow class or collective arbitrations even if applicable AAA rules would. YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING ("Class Arbitration Waiver"). Notwithstanding anything else in this Dispute Resolution and Arbitration Section 32, the validity and effect of the Class Arbitration Waiver may be determined only by a court and not by an arbitrator. You and ACN acknowledge that the Class Arbitration Waiver is material and essential to the resolution of any Dispute and is nonseverable from this Dispute Resolution and Arbitration Section 32. THEREFORE, IF THE CLASS ARBITRATION WAIVER IS LIMITED, VOIDED, OR OTHERWISE FOUND UNENFORCEABLE, THEN THE ENTIRETY OF THIS DISPUTE RESOLUTION AND ARBITRATION SECTION 32 (but only the Dispute Resolution and Arbitration Section 32) SHALL BE NULL AND VOID AND IF YOU CHOOSE TO PROCEED WITH YOUR CLAIM YOU MUST DO SO IN COURT PURSUANT TO SECTION 35.

32.11. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S INDIVIDUAL CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT.

33. CLASS ACTION WAIVER.
In the event any claim proceeds in court rather than through arbitration, for any reason, both you and ACN agree that such Dispute will only be resolved on an individual basis ("Class Action Waiver"). YOU AND ACN SPECIFICALLY AGREE THAT YOU AND ACN MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

34. JURY TRIAL WAIVER.
To the extent any claim proceeds in court rather than through arbitration, for any reason, if not prohibited by applicable law, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.

35. GOVERNING LAW/VENUE.
This Agreement is governed by the law of the State of North Carolina, without regard to its choice of law rules, except that the arbitration provisions of Section 32 of this Agreement are governed by the Federal Arbitration Act. Unless otherwise agreed, court proceedings must be in North Carolina, provided that if you bring a small claims action you may do so in the jurisdiction of your billing address. Subject to arbitration requirements in Section 32, for any court action in connection with this Agreement brought in a jurisdiction consistent with the foregoing sentence, ACN and you agree to submit to the personal and exclusive jurisdiction of such court and waive any objection as to venue or inconvenient forum. The failure of ACN or you to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. Except for billing disputes as provided for under Section 5.12 above, End User and ACN each 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 the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

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

37. NOTICES
Except as may be expressly provided otherwise in this Agreement, all notices required or permitted by this Agreement will be given as follows: Notices from ACN to you will 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: (1) mailed to ACN Customer Care at the address specified in the opening paragraph of this Agreement, or (2) Emailed to ACN Customer Care if the written notice is for the purpose of terminating your service pursuant to Section 2 of this Agreement. 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.

4. EQUIPMENT AND SERVICE
4.1 RETURNS
To provide certain Services, ACN may provide certain Devices to End User. All Equipment shipments are F.O.B. ACN's facility or the facility of any third party contracted to fulfill Equipment orders. ACN's liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to End User upon delivery to carrier. End User will be provided with the Equipment manufacturer's warranty from the date of purchase of Equipment. End User may return any Equipment within the manufacturer's warranty period at no cost other than End User's shipping costs, provided that (i) End User must first obtain a return materials authorization ("RMA") from ACN to return any Equipment by calling ACN customer service at 866-643-0010, and (ii) such Equipment must be returned to the location specified in the RMA in new condition in the original packaging or equivalent within twenty-one (21) calendar days of receipt of RMA shipping label and in no event later than the manufacturer's warranty period. ACN is not responsible for any late returns resulting from any End User delay in obtaining a RMA or otherwise. Any returns not in compliance with (i) and (ii) above may be refused and shall be subject to restocking, non-returned equipment and/or refurbishment fees up to the full retail price of the Equipment. End User shall be responsible for all costs related to shipping to ACN any Equipment that is being returned. 

4.2 SHIPPING FEES
ACN standard method of shipping is via ground transportation. ACN may impose additional shipping fees for expedited equipment shipments, additional shipments due to End User refusing deliveries, and/or special handling requests.

4.3 SERVICE REQUIREMENTS
You acknowledge and understand that the Service does not function in the event of power failure. You also acknowledge and understand that the VoIP Service requires a fully functional broadband connection to the Internet (which may not be provided by ACN) and that, accordingly, in the event of an outage of, or termination of service with or by, your ISP and/or broadband provider, the VoIP Service will not function, but that you will continue to be billed for the VoIP Service unless and until you or ACN terminate the VoIP Service in accordance with this Agreement. Furthermore, certain Services require a static Internet Protocol (IP) address for maintenance and diagnostics. End User will be instructed whether a static IP address is required for Service during the ordering process. The static IP address is provided by the high-speed internet provider. End User is responsible for obtaining, maintaining and paying for the static IP address. Should there be an interruption in the power supply or Internet outage, the Service will not function until power is restored or the Internet outage is cured. A power failure or disruption may require the Customer to reset or reconfigure equipment prior to utilizing the Service. Power disruptions or failures or Internet outages will also prevent dialing to emergency service numbers including the E911 calling feature. Should ACN suspend or terminate your Service, the Service will not function until such time as ACN restores your Service (which may require payment of all invoices and reconnection fees owed by you or cure of any breach by you of this Agreement). In the event of outages due to Internet or power failure, you agree that ACN is not required to provide you any credits or any other form of remuneration for the disruption of your Service. If ACN terminates your Service for the foregoing reason, you agree to be responsible for the full month's charges to the end of the current term, including without limitation unbilled charges (including any overage charges), plus a disconnect fee. You acknowledge and agree that all of such charges will immediately become due and payable and you consent to ACN, at ACN's discretion, immediately charging such amounts to your credit card or other payment method or electronically withdrawing such amounts from your bank account.

5. BILLING, CHARGES AND PAYMENT
5.1. PAYMENT
Upon purchase of the Service, End User must provide ACN with a valid credit card number from an issuer that is accepted by ACN. End User authorizes ACN to charge the credit card number provided by End User ("Credit Card") for all charges arising from End User's use of the Services. End User agrees to notify ACN of any change to the credit card information including, but not limited to, changes in account number, expiration date or billing address. ACN shall not be responsible for any charges made by the Credit Card issuer to End User's Credit Card account for exceeding credit limit, insufficient funds or other reasons. Estimated ship dates of Equipment are approximate and are not guaranteed.

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

5.3. BILLING
ACN will provide End User with a monthly on-line billing statement for the Services and bill all charges invoiced to End User's account to the Credit Card. Such charges shall include activation fees, monthly service fees, shipping charges, 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 subsequent to the end of each month's service. ACN reserves the right to charge the Credit Card for charges, due if at any time End User's cumulative charges for the current month exceed fifty dollars ($50.00). Billing for monthly service fees commences upon purchase of the Services on the web site, 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. All fees, including service fees, payable under the applicable term Plan shall be non-refundable and non-creditable. 

5.4. LATE/NON-PAYMENT
If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment or declined Credit Card charges, ACN may suspend or terminate the Services and all accrued charges shall be immediately due, plus a late fee of the lesser of 1.5% per month or the maximum allowed by law accrued from the date of invoice until payment in full is received by ACN and Disconnection and/or Early Termination Fees. If charges cannot be processed to the Credit Card, End User will be charged a fee of twenty-five dollars ($25.00). The fee will also be charged to activate a suspended account. No suspension or termination of the Services or of this Agreement shall relieve End User from paying any amounts due hereunder. 

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

5.6. REGULATORY RECOVERY FEE
A Regulatory Recovery Fee will be charged monthly to offset costs incurred by ACN in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The Regulatory Recovery Fee will apply to every telephone line assigned, including toll free and virtual numbers.

5.7. TRIAL PERIOD
ACN may offer a limited term trial period ("Trial Period") to certain End Users ("Trial End Users") as indicated in their online application for the Services. The Trial Period commences upon the purchase of Services by Trial End User on the DigitalTalk web site. If Trial End User is not satisfied with the Services during the Trial Period, Trial End User may obtain a refund of the Equipment and activation fee but not the monthly service fee. Applicable taxes will be refunded to the extent allowed by law. Shipping charges will not be refunded. To obtain a refund, Trial End User must: a) Notify ACN within (i) thirty (30) days of purchase of the Services, if you ported your number to ACN in connection with your Service Activation, in any other case, (ii) notify ACN within ten (10) days of purchase of The Services b) comply with ACN's return policy set forth in Section 4 above, and c) return the Equipment within seven (7) days of cancellation of the Services. Disconnection fees shall not apply if Trial End User cancels service during the Trial Period.

5.8. DISCONNECTION, OVERAGE AND CONVERSION FEES
If you terminate the VoIP or fax Services within the first thirty (30) days, of placing your order, you will receive a full refund if you return the Device(s) pursuant to the RMA process. However, if during the Initial Term, you terminate the VoIP Service after thirty (30) days of placing your Order, ACN may charge you an early termination fee ("ETF") of $150.00 per extension. If you terminate high speed internet, prior to installation you will receive a full refund; however, if you cancel after installation you will be responsible for an ETF as specified in the HSI Agreement. ETFs may apply to individual phones or extensions added in the middle of the term that have not themselves been activated for a period equal to the fixed term of the Agreement, even if the term of End User's Agreement has been completed in full.

5.9. ACCEPTABLE USAGE POLICY
ACN reserves the sole right to apply an additional "high-usage" fee to, to disconnect, or to switch to another plan, any user who abuses the Acceptable Usage Policy set forth in this Section. DigitalTalk End Users with a service plan that includes unlimited calling requires that such End Users have a typical business calling pattern, as defined by ACN. Unlimited Calling is not available to End Users with excessive call behavior, which is to be exclusively determined by ACN. By using the DigitalTalk services, End User agrees to comply with this Acceptable Usage Policy. When ACN becomes aware of an alleged violation of its Acceptable Usage Policy, ACN will conduct an internal investigation. During the investigation ACN may restrict the End User's access in order to prevent further possible unauthorized activity. Depending on the severity of the violation, ACN may, at its sole discretion, restrict, suspend, or terminate the End User's service. ACN does not issue service credits for any outages incurred through service disablement resulting from Acceptable Usage Policy violations nor does ACN accept any responsibility and/or liability with respect to any damages whatsoever incurred due to a violation of this Acceptable Usage Policy.

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

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

5.12. BILLING DISPUTES
End User must dispute any charges for the Services in writing within thirty (30) days of the date of the charge by ACN or End User waives any objection and further recourse. Written statements disputing charges must be sent to: Billing Department ACN, Inc. Attn: DigitalTalk Disputes, 1000 Progress Place, Concord, NC 28025.

6. TOLL CHARGES
Every call to or from Equipment using the Services that originates or terminates in the Public Switched Telephone Network ("PSTN"), including other VoIP networks, is subject to the then applicable toll charges that are associated with End User's Plan. Calls to a phone number outside the United States and Canada to a non-ACN telephone number will be charged at the current rates published on the DigitalTalk website. The duration of each call is to be calculated in one minute increments and rounded up to the nearest one minute increment for any fraction of minutes used. If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. If the computed charges for taxes and surcharges include a fraction of a cent, the fraction is rounded up to the nearest whole cent. When End User dials an International PSTN phone number, including other VoIP networks, charges may apply regardless of whether the party on the other line answers the call. Calls made by an End User to an International mobile, rather than landline, or premium rate telephone number, may result in higher toll charges.

7. LOST, STOLEN, ALTERED OR BROKEN EQUIPMENT
End User shall not modify the Equipment in any way without the express written permission of ACN. End User shall not use the Equipment except with the Services provided hereunder. Except as otherwise provided for hereunder, End User is responsible for all lost, stolen or broken Equipment and may be required to purchase a replacement to continue service. ACN may impose replacement or repair charges, will be based on the fair retail price of Equipment, plus applicable shipping costs and taxes. End User shall immediately notify ACN of any lost or stolen Equipment and shall cooperate with ACN in all reasonable aspects to eliminate actual or potential unauthorized use of the Equipment. At ACN's sole option, failure to report lost or stolen equipment in a timely manner will cause End User to be responsible for all service fees accrued until the time that ACN is informed of the loss or theft and can effect a termination of the Services.

8. PROHIBITED USES
Any use of the Services or any other action that causes a disruption in the network integrity of ACN or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services at the sole discretion of ACN. End User understands that neither ACN nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. End User agrees that it will NOT use the Services in ways that violate laws (including but not limited to laws prohibiting transmission of unsolicited fax advertisements or laws on obtaining 3rd party consent for call recording), infringe the rights of others, or interfere with the users, services, or equipment of the network. End User agrees and represents that it is purchasing the Services and/or the Equipment for its own internal use only, and shall not resell, transfer or make a charge for the Services or the Equipment without the advance express written permission of ACN. ACN's Service Plans for business End Users that offer unlimited minutes of PSTN calls ("Unlimited PSTN Plans") or unlimited faxing are for reasonable business use of End User only. Such use shall not include certain activities including, but not limited to, any autodialing, continuous or extensive call forwarding, continuous connectivity, fax broadcast, fax blasting, telemarketing (including without limitation charitable or political solicitation or polling), call center operations, junk faxing, fax spamming, calling/faxing any person (through the use of distribution lists or otherwise) who has not given specific permission to be included in such a process or any other activity that would be inconsistent with reasonable business usage. End User shall not transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. End Users further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. Any use found to be inconsistent with this restriction will result in termination of the Service and ACN can recover from you the costs and expenses for any harm caused to ACN or its vendors. ACN reserves the right to immediately terminate or modify the Services of any End User End User's reasonable business use. Additionally, ACN's Acceptable Use Policy is hereby incorporated into this Agreement.

9. USE, STORAGE AND OTHER LIMITATIONS
ACN reserves the right to establish or modify general practices and limits concerning use of the Services and software, including without limitation, the maximum number of days that content will be retained by the Service, the maximum disk space and/or bandwidth capacity that will be allotted on servers owned and/or operated by ACN on End User's behalf, if any. Where practical, ACN will provide the End User with prior notice of such new or modified practices; provided however, that ACN shall have the absolute right to implement such new or modified practices without prior notice in its sole discretion and without liability or any kind.

10. ELECTRONIC RECORDING
End User acknowledges and understands that there are federal and state statutes governing the electronic recording of telephone conversations and that ACN will not be liable for any illegal use of the Service. Because End User circumstances vary widely, End Users should carefully review their own circumstances when deciding whether to use the recording features of the service and it is the End User's responsibility to determine if the electronic recordings are legal under the federal and state statutes. ACN is not responsible for any misinterpretation, lack of understanding or lack of knowledge regarding the use of electronic recordings or the use of its products by the End User whether legal or illegal.

11. RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF END USER COMMUNICATIONS
End Users are solely responsible for maintaining the confidentiality of End User password and account, and agree not to transfer email address or password, or lend or otherwise transfer use of or access to the ACN Service, to any third party. End Users are also solely responsible for any and all activities that occur under End User account. End User agrees to immediately notify ACN of any unauthorized use of End User account or any other breach of security related to End User account or the DigitalTalk Service, and to ensure that End User "log off"/exit from End User account (if applicable) at the end of each session. ACN is not liable for any loss or damage arising from End User failure to comply with any of the foregoing obligations. In consideration for using the DigitalTalk Service, End User agrees to: (1) provide certain current, complete, and accurate information about End User when prompted to do so by the DigitalTalk Service, and (2) maintain and update this information as required to keep it current, complete and accurate. End User agrees that any such information shall be accurate. End User agrees that End User are solely responsible for the content of all visual, written or audible communications ("Content") sent by End User or displayed or uploaded by End User in using the Services. End User agrees that End User will not use the Services to send unsolicited commercial e-mail outside End User Company or organization in violation of applicable law. End User further agrees not to use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation. Recognizing the global nature of the Internet, End User also agree to comply with applicable local rules or codes of conduct (including codes imposed by End User's employer) regarding online behavior and acceptable content and the transmission of technical data exported from the United States. ACN reserves the right to investigate and take appropriate action against anyone who, in ACN's sole discretion, is suspected of violating this provision, including without limitation, reporting End User to law enforcement authorities. Use of the Services is void where prohibited. Although ACN is not responsible for any such communications, ACN may delete any such communications of which ACN becomes aware, at any time without notice to End User. End User retains copyright and any other rights already held in Content which End User submits, posts or displays on or through, the Services. End User understands and agrees that by displaying, exchanging or uploading Content to an ACN website, transmitting Content using the Services or otherwise providing Content to ACN, End User automatically grants (and warrants and represents that End User has a right to grant) to ACN a world-wide, royalty-free, sublicensable (so ACN affiliates, contractors, resellers and partners can deliver the Services) perpetual, irrevocable license to use, modify, publicly perform, publicly display, reproduce and distribute the Content in the course of offering the Site and/or the Services.

12. RESPONSIBILITY FOR CONTENT OF OTHERS
Be advised that other users of the Services ("Users") may violate one or more of the above prohibitions, but ACN assumes no responsibility or liability for such violation. If End User becomes aware of misuse of the Services by any person, please contact ACN Customer Support. ACN may investigate any complaints and violations that come to its attention and may take any action that it believes is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or User profiles and/or logins. However, because situations and interpretations vary, ACN also reserves the right not to take any action. 

13. CHANGES TO THE AGREEMENT, SERVICES OR PLAN
ACN may change the rates, charges, terms and conditions of the Services from time to time. ACN also reserves the right to discontinue certain Services. Any such changes will be posted on the DigitalTalk website and any such future changes are hereby incorporated by reference into this Agreement. ACN will not provide End User with advance notice of changes to taxes and surcharges, except as required by applicable law. If End User continues to subscribe to, use or pay for ACN's services after any changes in the rates, charges, terms and conditions of Services, End User agrees to such changes by such use. 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 or early termination fees. End User may request a Plan change at any time, subject to any applicable change of service fee and additional terms and conditions.

14. TERMINATION
End User shall be responsible for the full monthly service fee for the month during which the notice of termination of service is provided to ACN. In accordance with Section 5.8, Disconnection Fees may apply. ACN reserves the right, at its sole discretion, to suspend, terminate or change the Services without advanced notice for any reason, including without limitation, misuse of the Services in any way, End User's breach of this Agreement, End User's failure to pay any sum due hereunder, suspected fraud or other activity by End User that adversely affects the Services, ACN, ACN's network, or other End User's use of the Services. ACN reserves the right to determine, at its sole discretion, what constitutes misuse of the Services and End User agrees that ACN's determination is final and binding on End User. ACN may require an activation fee to change or resume a terminated or suspended account.

15. PRIVACY
ACN utilizes the public Internet and third party networks to provide its Services. Accordingly, ACN cannot guarantee the security of its Services. ACN is not liable for any lack of privacy which may be experienced with regard to the Service. Please refer to our Privacy Policy

16. CUSTOMER PROPRIETARY NETWORK INFORMATION (CPNI)
To inform you of other ACN related products and services, ACN may access information related to your account(s). CPNI, or information such as the kind of services that you have, how you use them, and how they are billed may be accessed by ACN. Federal law restricts the use of CPNI for purposes other than providing service, without the customer's approval. If you do not want ACN to access and use CPNI (except as otherwise permitted by law), you must contact us in writing. Until you notify us otherwise, ACN understands that you have approved ACN's internal use of CPNI for purposes reasonably related to ACN's offering or provisioning of other services to you. This consent survives the termination of your Service and survives until you remove it. A denial of permission for ACN to use CPNI will not affect the provision of any service to which you are subscribing nor would there be any charge to you for such denial. Denial would not restrict ACN from contacting you for marketing purposes, but may limit ACN from tailoring specific products to suit your needs. If you contact ACN about any product or service, ACN retains the ability to access your CPNI to inform you about those products or services. ACN is not liable for any lack of privacy that may be experienced with regard to your service. By signing up for the service, you authorize ACN to monitor and record calls to ACN concerning your account or the service and you consent to the use of automatic dialing equipment in order to contact you. ACN has the right to intercept and disclose any transmissions over our facilities in order to protect our rights and/or property or pursuant to court order or subpoena.

17. REPRESENTATIONS AND WARRANTIES
You agree and warrant that: (i) neither your registration nor use of the any of the Services nor the manner in which you intend to use such Services will directly or indirectly infringe the legal rights of a third party, (ii) you have all requisite power and authority to execute this Agreement and to perform your obligations hereunder, (iii) you have selected the necessary security option(s) for your domain name registration record, (iv) you agree to provide certain true, current, complete and accurate information about you as required by the application process; and maintain and update this information you provided to us when purchasing the Services as needed to keep it current, complete and accurate, and (v) you agree to comply with all applicable laws and regulations.

18. TECHNICAL SUPPORT
ACN provides technical support to End Users via telephone and e-mail for the Services and the Equipment provided hereunder. Support for other applications and uses is not provided or implied.

19. LICENSE:
Through our Services you may be provided with, including without limitation objects images, photographs, templates, animations, video, audio, music, text and "applets", and "online" or electronic documentation (together called the "Digital Content"). You may use, modify and publish the Digital Content in accordance with the terms of this Agreement. Any supplemental software code and supporting materials provided to you as part of support services for the Digital Content shall be considered part of the Digital Content and are subject to the terms and conditions of this Agreement. The copyright and all other rights to the Digital Content shall remain with the license holder. Permitted use of the Digital Content includes: incorporating the Digital Content into your own original work and publish your work in a web site provided that the Digital Content is incorporated for viewing purposes only and no permission is given to download or save the Digital Content for any reason; and you continue to pay for the Services. Unauthorized uses of Digital Content include: post web pages containing the Digital Content on servers other than those owned or operated by ACN or its vendors; use the Digital Content for any purpose, if you no longer pay for our Services; use the Digital Content to create printed or "hard copy" documents; use the Digital Content in electronic format, on-line or in multimedia applications unless the Digital Content is incorporated for viewing purposes only and no permission is given to download or save the Digital Content for any reason; use the Digital Content in Web page design whereby the Digital Content is in a format designed or intended for storage or re-use by others; use or permit the use of the Digital Content or any part thereof as a trademark or service mark, or claim any proprietary rights of any sort in the Digital Content or any part thereof; use the Digital Content with images of identifiable individuals, products or entities in a manner that suggests their association with or endorsement of any product or service; create scandalous, obscene, defamatory or immoral works using the Digital Content, nor use the Digital Content for any other purpose which is prohibited by law; translate, reverse engineer, decompile, or disassemble the Digital Content; rent, lease, assign, transfer or redistribute the Digital Content or a copy thereof, to another person or legal entity; or use the Digital Content or make copies of it except as permitted in this Agreement.

20. BREACH
In the event of End User's breach of the terms of the Agreement, including without limitation, failure to pay any sum due hereunder, End User shall reimburse ACN for all attorney, court, collection and other costs incurred by ACN in the enforcement of ACN's rights hereunder and ACN may keep any deposits or other payments made by End User.

21. INDEMNIFICATION
End User agrees to defend, indemnify and hold harmless ACN, its officers, directors, employees, affiliates and agents and any other third-party provider who furnishes products or services to the End User in connection with this Agreement or the Service or Device (and, at ACN's option, either defend ACN and/or its service providers or pay ACN and/or its service providers cost of defense) from and against all claims, losses, damages, fines, liabilities, penalties, costs and expenses of any nature whatsoever ("Liability"), including reasonable attorneys' fees, related to or arising from: (a) the use of the Service by End User or any User; (b) any violation of applicable laws, regulations or this Agreement by you or any User; (c) negligent acts, errors or omissions by you or any User; (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 gross negligence or willful misconduct of ACN; (e) claims for infringement of any intellectual property rights arising from your or any Users' use of the Service, Software, the Internet, Personal Data or Content; (f) claims arising from Content transmitted by or to you or Users; (g) the use of the Services with any interface devices not provided by ACN; or (h) the absence, failure or outage of the Service, including the 911 emergency response service accessible through the Services, and/or the inability of you or any User to be able to access emergency response center personnel, whether arising out of misrouting of 911 calls due to your failure to provide ACN with accurate and up-to-date Service Address information or other information or your failure to follow activation procedures for 911 calling. This Section shall survive termination of this Agreement.

22. DISCLAIMER OF CONSEQUENTIAL DAMAGES
IN NO EVENT SHALL ACN OR ITS VENDORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE OR THE SETUP, CANCELLATION OR TERMINATION OF SERVICES OR PRODUCTS PROVIDED HEREUNDER WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF ACN OR ITS VENDORS OR OTHERWISE. 

23. LIMITATION OF LIABILITY
IN ADDITION TO THE DISCLAIMERS OF LIABILITY ELSEWHERE IN THIS AGREEMENT, IN NO EVENT SHALL ACN, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS OR ANY OTHER THIRD-PARTY PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICE, INCLUDING E911 DIALING, AT ANY TIME OR FROM TIME TO TIME, OR ANY INTERRUPTION OR DEGRADATION OF VOICE QUALITY THAT IS CAUSED IN WHOLE OR IN PART BY ANY OF THE FOLLOWING:

  1. ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR OR OTHER THIRD PARTY. INCLUDING BUT NOT LIMITED TO SUCH CARRIER, SERVICE PROVIDER, OR VENDOR’S UNDERLYING NETWORK MANAGEMENT PRACTICES.
  2. EQUIPMENT, NETWORK OR FACILITY FAILURE.
  3. EQUIPMENT, NETWORK OR FACILITY UPGRADE OR MODIFICATION.
  4. FORCE MAJEURE EVENTS SUCH AS (BUT NOT LIMITED TO) ACTS OF GOD; TERRORISM, STRIKES;
    FIRE; WAR; RIOT; GOVERNMENT ACTIONS.
  5. EQUIPMENT, NETWORK OR FACILITY SHORTAGE.
  6. EQUIPMENT OR FACILITY RELOCATION.
  7. SERVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER.
  8. OUTAGE OF CUSTOMER'S ISP OR BROADBAND SERVICE PROVIDER.
  9. ACT OR OMISSION OF CUSTOMER OR ANY PERSON USING THE SERVICE PROVIDED TO CUSTOMER.
  10. ANY OTHER CAUSE THAT IS BEYOND ACN's CONTROL, INCLUDING WITHOUT LIMITATION A FAILURE OF OR DEFECT IN ANY SERVICE, THE FAILURE OF AN INCOMING OR OUTGOING COMMUNICATION, THE INABILITY OF COMMUNICATIONS (INCLUDING WITHOUT LIMITATION 911 DIALING) TO BE CONNECTED OR COMPLETED, OR DEGRADATION OF VOICE QUALITY;
  11. UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT NUMBER, PASSWORD OR SECURITY AUTHORIZATION OPTION;
  12. ERRORS, OMISSIONS OR MISSTATEMENTS IN ANY AND ALL INFORMATION OR SERVICES
  13. DELETION OF OR FAILURE TO STORE EMAIL MESSAGES;
  14. INABILITY TO USE THE EMAIL SERVICE;
  15. PROCESSING YOUR APPLICATION FOR SERVICES, THE PROCESSING OF ANY AUTHORIZED MODIFICATION OF YOUR DOMAIN NAME RECORD OR YOUR AGENT'S FAILURE TO PAY ANY FEES, INCLUDING THE INITIAL REGISTRATION FEE OR RE-REGISTRATION FEE; AND
  16. APPLICATION OF THE DISPUTE POLICY.
    ACN'S AGGREGATE LIABILITY FOR (I) ANY FAILURE OR MISTAKE; (II) ANY CLAIM WITH RESPECT TO ACN'S PERFORMANCE OR NONPERFORMANCE HEREUNDER OR (III) ANY ACN ACT OR OMISSION IN CONNECTION WITH THE SUBJECT MATTER HEREOF SHALL IN NO EVENT EXCEED THE SERVICE CHARGES FOR ONE MONTH.

IN NO EVENT SHALL ACN, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER, VENDOR OR LICENSOR WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO BE ABLE TO DIAL E911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT, INFRINGEMENT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT ACN WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.

24. DISCLAIMER OF WARRANTY
ACN will provide a limited warranty on the Device as to manufacturing defects only for a period of one (1) year from the date of purchase. This limited warranty does not apply to any defect or failure other than a manufacturing defect, and, without limiting the generality of the foregoing, does not apply to any defect caused by damage in transit, retailer handling or End User handling. An End User's sole remedy for any breach of this limited warranty is to obtain a repaired or replacement Device, by following the return procedures. The limited warranty will also apply in lieu of the limited warranty included with the Device if such included limited warranty is less favorable to Customer than that contained herein. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICE IS PROVIDED "AS IS." ACN, ITS AGENTS, AND VENDORS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE OR THE DEVICE WILL MEET CUSTOMER'S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, ACN, ITS AGENTS AND VENDORS DO NOT WARRANT THAT THE SERVICE OR THE DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER ACN NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, THE SERVICE OR THE DEVICE WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO ACN'S OR END USER'S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, END USER'S CONTENT, DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF ACN'S OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY ACN OR ACNS AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOAD OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES IS DONE AT YOUR OWN DISCRETION AND RICK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.

25. CONTENT
You are responsible for any and all liability that may arise out of the content transmitted by or uploaded to you or Users using the Services ("Content"). End User hereby grants a non-exclusive, non-transferable, license to ACN and its third-party providers to use such Content, but solely in connection with and only for the term of the Service. You shall assure that your or User's Content and use of the Services will at all times comply with all applicable laws, regulations and written and electronic instructions for use. ACN reserves the right, in addition to its other rights and remedies, to terminate or suspend affected Services, and/or remove your or Users' Content from the Services, if ACN determines that such use or Content does not conform with the requirements set forth in this Agreement or interferes with ACN's ability to provide Services to you or others or ACN receives notice from anyone that your or Users' use or Content may violate any laws, regulations, the Acceptable Use Policy or the Privacy Policy. ACN's actions or inaction under this Section shall not constitute review or approval of your or Users' use or Content.

26. EXPORT COMPLIANCE
End User agrees to comply with U. S. export laws concerning the transmission of technical data and other regulated materials via the Services. End User agrees to comply with applicable local, state and federal regulations governing the locality in which the Equipment and Services are used.

27. SOFTWARE COPYRIGHT
Any software used by ACN to provide the Services and any software provided to End User in conjunction with providing the Services are protected by copyright law and international treaty provisions. End User may not copy the software or any portion of it.

28. SURVIVAL
The provisions of Sections 3, 5, 16, 17, and 19 through 37 shall survive any termination of the Agreement.

29. AMENDMENTS
ACN may change this Agreement, including the Acceptable Use Policy, Privacy Policy and rates applicable to the Service, at any time, and from time to time, in its sole discretion. ACN also reserves the right to discontinue certain services. Any changes made to this Agreement by ACN may apply: (1) upon the day of execution or posting of amended Agreement on the ACN website, or (2) prospectively to some specified date in the amendment. No amendment shall apply retroactively from the date of the change. Notice of such changes will be deemed to be effective on the date the updated Agreement is posted to the ACN web site. You may review the current Agreement, including the Acceptable Use Policy, Privacy Policy and rates applicable to the Service, at any time by visiting myacn.com. Please review these documents at www.myacn.com periodically to familiarize yourself with the most current version. This Agreement as posted supersedes all previously agreed to electronic and written versions of this Agreement.

30. RESALE, ASSIGNMENT, and TRANSFER
You may not change any term of this Agreement. You may not resell any Service or transfer or assign this Agreement or the use of ACN service without the express prior written consent of ACN. All terms and conditions of service in this Agreement will apply to all such permitted assignees or transferees. Such transfer or assignment, when permitted, shall only apply where there is no interruption of the use or location of the service. 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 will have no further obligations to you. If subscriber is a business entity, ACN may rely on the creditworthiness of subscriber's ownership before providing or continuing to provide any service. If subscriber's ownership changes, Subscriber agrees to notify ACN within 5 business days and provide such information as ACN may request so that ACN may assess the creditworthiness of Subscriber's new ownership. ACN reserves the right to suspend or terminate any service upon a change in ownership of Subscriber. Subscriber agrees that any such suspension or termination will have no effect on amounts owed by Subscriber to ACN in connection with the service and that ACN may immediately call any such amounts due. If ACN terminates service due to a creditworthiness concern or for any reason other than convenience following an ownership change, as determined by ACN, Subscriber agrees that any early termination fees for Subscriber's early cancellation or termination of service, will still apply.

31. FORCE MAJEURE (EVENTS BEYOND OUR CONTROL)
ACN shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties of ACN as may occur in spite of ACN's best efforts.

32. DISPUTE RESOLUTION AND ARBITRATION.
PLEASE READ THIS SECTION OF THESE TERMS CAREFULLY, AS IT PROVIDES FOR THE RESOLUTION OF MOST DISPUTES THROUGH BINDING ARBITRATION.  YOU WILL CONTINUE TO HAVE CERTAIN RIGHTS TO SEEK RELIEF FROM AN APPROPRIATE GOVERNMENTAL REGULATORY AGENCY.

32.1. If you have a dispute arising from or relating to your Service, Plan, or otherwise arising from or relating to this Agreement (a "Dispute"), please first call ACN Customer Care at 1-877-226-1010.  

32.2. As evidenced by this Agreement, the Service is an interstate commerce transaction and this Section 32 is therefore governed by the Federal Arbitration Act. All Disputes (in any case, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal or equitable theory) must be resolved by final and binding arbitration, pursuant to the Commercial Dispute Resolution Procedures (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as in effect at the time of the arbitration, and as modified herein. You may contact AAA in writing at one of its locations (e.g. The Rotunda, 4201 Congress Street, Suite 125, Charlotte, NC 28209). You may also obtain additional information about AAA and its procedures from AAA's website, at www.adr.org. Notwithstanding the foregoing, either you or ACN may bring an individual action against the other party in small claims court. 

32.3. Prior to commencing an arbitration proceeding with the AAA, a party seeking to arbitrate any Dispute must send to the other party, via certified mail, a written Notice of Dispute ("Notice"). The Notice to ACN must be addressed to: ACN Customer Care, 1000 Progress Place, Concord, NC 28025-2449 ("Dispute Notice Address"). The Notice must (a) describe the nature and basis of the claim or Dispute; and (b) describe the specific relief sought. You and ACN each expressly agree to attempt to resolve any Dispute by first sending the Notice to the other party, prior to initiating or commencing an arbitration proceeding with the AAA.

32.4. If a Dispute is not satisfactorily resolved within sixty (60) days after the Notice is received, either party may then commence an arbitration proceeding with the AAA. Any Dispute must be brought within one (1) year after the date on which the basis for the Dispute first arises. Any arbitration proceeding shall be fully resolved within six (6) months from the date of commencement, unless otherwise agreed in writing.

32.5. In conducting the arbitration, and in making any award, the arbitrator will be bound by and must strictly enforce the terms of the Agreement, and will not expand, limit, or otherwise modify the terms of the Agreement. The arbitrator will not award damages that are not expressly authorized by the Agreement. The arbitrator will not have authority to award punitive or exemplary damages or attorneys' fees. You and ACN expressly waive any claims for an award of damages that are excluded under the Agreement.

32.6. The arbitration will be based only on written submissions of the parties, and the documents submitted to the AAA relating to the Dispute, unless either party requests that the arbitration be conducted pursuant to the AAA's in-person, telephonic, or on-line procedures. If the amount involved in the Dispute is less than $10,000, the arbitration will be conducted in the county of the last billing address of your Service. If the amount in dispute is $10,000 or more, the arbitration will be conducted in Charlotte, North Carolina. You have the right to be represented by an attorney in any arbitration.

32.7. You must pay the applicable AAA filing fee when you submit your written request for arbitration to the AAA. Unless otherwise provided for in the AAA Rules, or in the arbitration award, all other administrative fees and expenses of arbitration, including the fees and expenses of the arbitrator, will be divided equally between you and ACN. The prevailing party may seek to recover from the other party the AAA's fees and the expenses of the arbitrator. If you select an in-person, telephonic, or on-line arbitration process, you must pay your share of any higher administrative fees and costs for the process you select.

32.8. Unless applicable substantive law provides otherwise, each party will pay its own expenses to participate in the arbitration, including attorneys' fees and expenses for witnesses, document production, and evidence presentation.

32.9. All post-award proceedings will be governed by the Federal Arbitration Act. Any award may be confirmed and enforced in any court of competent jurisdiction. The arbitration will be confidential. Neither you nor ACN may disclose the existence, content, or results of the arbitration, except to confirm and enforce the award, or as may be required by law.

32.10. CLASS ARBITRATION WAIVER. Each Dispute will be resolved on an individual basis. YOU AND ACN SPECIFICALLY AGREE THAT YOU AND ACN MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A CLAIMANT OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. This Agreement does not allow class or collective arbitrations even if applicable AAA rules would. YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING ("Class Arbitration Waiver"). Notwithstanding anything else in this Dispute Resolution and Arbitration Section 32, the validity and effect of the Class Arbitration Waiver may be determined only by a court and not by an arbitrator. You and ACN acknowledge that the Class Arbitration Waiver is material and essential to the resolution of any Dispute and is nonseverable from this Dispute Resolution and Arbitration Section 32. THEREFORE, IF THE CLASS ARBITRATION WAIVER IS LIMITED, VOIDED, OR OTHERWISE FOUND UNENFORCEABLE, THEN THE ENTIRETY OF THIS DISPUTE RESOLUTION AND ARBITRATION SECTION 32 (but only the Dispute Resolution and Arbitration Section 32) SHALL BE NULL AND VOID AND IF YOU CHOOSE TO PROCEED WITH YOUR CLAIM YOU MUST DO SO IN COURT PURSUANT TO SECTION 35.

32.11. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S INDIVIDUAL CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT.

33. CLASS ACTION WAIVER.
In the event any claim proceeds in court rather than through arbitration, for any reason, both you and ACN agree that such Dispute will only be resolved on an individual basis ("Class Action Waiver"). YOU AND ACN SPECIFICALLY AGREE THAT YOU AND ACN MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

34. JURY TRIAL WAIVER.
To the extent any claim proceeds in court rather than through arbitration, for any reason, if not prohibited by applicable law, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.

35. GOVERNING LAW/VENUE.
This Agreement is governed by the law of the State of North Carolina, without regard to its choice of law rules, except that the arbitration provisions of Section 32 of this Agreement are governed by the Federal Arbitration Act. Unless otherwise agreed, court proceedings must be in North Carolina, provided that if you bring a small claims action you may do so in the jurisdiction of your billing address. Subject to arbitration requirements in Section 32, for any court action in connection with this Agreement brought in a jurisdiction consistent with the foregoing sentence, ACN and you agree to submit to the personal and exclusive jurisdiction of such court and waive any objection as to venue or inconvenient forum. The failure of ACN or you to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. Except for billing disputes as provided for under Section 5.12 above, End User and ACN each 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 the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

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

37. NOTICES
Except as may be expressly provided otherwise in this Agreement, all notices required or permitted by this Agreement will be given as follows: Notices from ACN to you will 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: (1) mailed to ACN Customer Care at the address specified in the opening paragraph of this Agreement, or (2) Emailed to ACN Customer Care if the written notice is for the purpose of terminating your service pursuant to Section 2 of this Agreement. 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.

ACN COMPANION (for iOS)
Customer Licensing Agreement Terms of Service

Welcome to ACN Companion (for iOS) ("ACN Companion") offered by ACN Communication Services, LLC., a Michigan limited liability company with offices at 1000 Progress Place, Concord, NC 28025 ("ACN"). These Terms of Service (this "Agreement") are between you ("you") and ACN for use of the ACN Companion application for iOS and supplement the Terms of Service applicable to ACN Digital Phone Service ("Service Terms" and together with this Agreement, your "ACN Companion (for iOS) Agreement). To the extent any term or condition in this Agreement conflicts with any term or condition in the Service Terms, the term or condition in this Agreement shall control.

1. You acknowledge and agree that Apple is not a party to your ACN Companion (for iOS) Agreement and has no responsibility for ACN Companion, including without limitation as to maintenance and support. You will look solely to ACN in respect of any issues concerning the ACN Companion application or its content. To the extent any term or condition of your ACN Companion (for iOS) Agreement conflicts with or is less restrictive than the Apple App Store Terms of Service, you agree that the Apple App Store Terms of Service shall control.

2. Your non-transferable license to use the application under your ACN Companion (for iOS) Agreement is further expressly limited to use of the ACN Companion application on any iPhone or iPod touch that you own or control and as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.

3. Without limiting any disclaimer of warranties provided in your ACN Companion (for iOS) Agreement, in the event of any failure of ACN Companion to conform to any applicable warranty, you may notify Apple and Apple will refund to you the purchase price (if applicable) for ACN Companion. If you downloaded ACN Companion for free from the Apple App store, then you will receive no refund from Apple. Otherwise, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to ACN Companion. Subject to the disclaimers of warranty and other provisions of your ACN Companion (for iOS) Agreement, as between Apple and ACN, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be ACN's sole responsibility.

4. To the extent you or any third party has any claim regarding ACN Companion or an end-user's possession and/or use of ACN Companion, you will look to ACN to address such issues or claims, including, but not limited to: (i) product liability claims; (ii) any claim that the ACN Companion application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.  Any limitations of liability against ACN specified in this Agreement are effective only to the extent permitted (or not prohibited) by applicable law.

5. Not in limitation of any applicable disclaimers or limitations provided for under your ACN Companion (for iOS) Agreement, in the event of any third party claim that ACN Companion or your possession and use of ACN Companion infringes such third party's intellectual property rights, as between Apple and ACN, ACN will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

6. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

7. If you have any questions, complaints or claims with respect to ACN Companion, please contact ACN at 877-226-1010.

8. Notwithstanding anything to the contrary in your ACN Companion (for iOS) Agreement, you and ACN agree that Apple and its subsidiaries are third party beneficiaries of your ACN Companion (for iOS) Agreement to the extent it applies to ACN Companion, and, upon your acceptance of your ACN Companion (for iOS) Agreement, Apple and its subsidiaries shall have the right (and will be deemed to have accepted the right) to enforce your ACN Companion (for iOS) Agreement against you as said third party beneficiaries.

Revised March 11, 2016