Welcome to ACN DigitalTalk Express (the "Service" or "Services"), which includes ACN Companion, and commercial services ordered by you, as applicable, such as, without limitation, hosted PBX, high speed internet, email, e-fax and VoIP faxing, and domain registration. The Service also includes devices used in conjunction with the commercial services such as, without limitation, routers and telephones ("Devices"). The Service is offered by All Communications Network of Canada Co., with a mailing address at P.O. Box 720, Station B, Montreal, Quebec, H3B 3K3 ("ACN").
These Terms & Conditions ("Agreement") are between you ("you" or "End User" or "Customer") and ACN for the use of the Service. You must enter into this Agreement by selecting the checkbox under terms and conditions and clicking the "Continue" button during the online ordering/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 ordering/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 as specified in Section 12 below, 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.
You confirm that you are entering this Agreement for business and commercial purposes and that, at all times, the Service will be used primarily for its business operations. You acknowledge that ACN would not have entered into this Agreement but for your confirmation that the Services will be mainly for business and commercial purposes.
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 right to enter into this Agreement and use of the Service are 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 of two (2) years ("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 on a month-to-month basis ("Renewal Term"), unless End User provides ACN with sixty (60) days written notice prior to the end of the Initial Term, or thirty (30) days written notice prior to the end of any Renewal Term, of its intention to cancel the Service. Expiration of the Term does not alleviate End User of responsibility for paying all unpaid, accrued charges due hereunder. If End User chooses to cancel the Service before the end of the current Initial or Renewal Term, if permitted by applicable law, Disconnection fees and/or Early Termination Fees may apply as set forth below.
You may terminate your Service by calling ACN Customer Care at 877-226-1010 or give notice of cancellation at the address below. You must give notice of cancellation by a method that will allow you to prove that you gave notice, including registered mail, fax, or by personal delivery. The cancellation takes effect on the sending of the notice or the date specified in the notice. If you terminate this Agreement during the Initial Term an Early Termination Fee may apply as specified below.
PLEASE NOTE: If you decide to cancel your Service with ACN, you should make arrangements to switch your Service to your chosen service provider. Failure to do so could result in an interruption to your Service.
3. EMERGENCY SERVICES - 911 DIALING. For a description of 911/E911 limitations for ACN DigitalTalk subscriber lines see below.
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 911, or Enhanced 911 ("E911"). While our system supports 911 calling in the majority of the country, there is a difference from the 911 services that may be available with traditional telephone service in your area and the 911 service that you receive with your ACN DigitalTalk Service. Both the 911 services and the Enhanced 911 ("E911") services available with traditional telephone service send the call directly to the emergency response center. Additionally, with E911 service, the telephone number and address are immediately visible to the emergency response center call-taker. With your ACN DigitalTalk Service, your call is sent directly to a national emergency call center. The call center operator will confirm your location and information. Then the call will be transferred to the emergency response center nearest your location. You should be prepared to confirm your address and phone number if required. Given the Service's limitations, you should have an alternative means of accessing 911 services.
3.2 NOTICE. You should inform employees, 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 911, 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 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 myacncanada.ca.
3.3 REGISTRATION OF PHYSICAL LOCATION REQUIRED. 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. Additionally, you need to update the address of the location of your phone with ACN since, if you are not able to speak during the 911 call, the operator may assume that you are at the address registered with ACN, which may not necessarily match your location if you have moved the phone.
3.4. 911 SERVICE OUTAGES.
3.4.1. 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, that 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.
3.4.2. 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.
3.4.3. 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.
3.4.4. 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.
3.4.5. 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.
3.5. 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.
3.6. 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.
3.7. 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.
3.8 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.
3.10. RETURNS. To provide certain Services, ACN may provide certain Devices to End User. All Device shipments are F.O.B. ACN's facility or the facility of any third party contracted to fulfill Device 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 Device manufacturer's warranty from the date of purchase of Device. End User may return any Device 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 Device by calling ACN Customer Care at 877-226-1010, and (ii) such Device 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 Device and/or refurbishment fees up to the full retail price of the Device. Unless ACN provides otherwise, End User shall be responsible for all costs related to shipping to ACN any Device that is being returned.
3.11. SHIPPING. ACN standard method of shipping is via ground transportation. ACN may impose additional shipping fees for expedited Device shipments, additional shipments due to End User refusing deliveries, and/or special handling requests. Estimated ship dates of Device are approximate and are not guaranteed.
4. BILLING, CHARGES AND PAYMENT
4.1. 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.
4.2. 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.
4.3. 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.
4.4. 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 Service and all accrued charges shall be immediately due, plus a late fee of up to the lesser of (i) $5 or monthly interest of 1.5% (19.56% per annum), whichever is greater, or (ii) the maximum rate permitted under applicable law, in either case to be charged on any past due balance. If charges cannot be processed to the Credit Card, End User will be charged a fee of twenty dollars ($20.00). The fee will also be charged to activate a suspended account. No suspension or termination of the Service or of this Agreement shall relieve End User from paying any amounts due hereunder.
4.5. TAXES. Prices for the Service do not include any customs duties, sales, use, value added, excise, federal, provincial, 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.
4.6. 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. Terms and conditions of Trial End User's Trial Period may be agreed to formally or informally separate and apart from this Agreement.
4.7. DISCONNECTION, OVERAGE AND CONVERSION FEES. If you terminate the Service within the first thirty (30) days, of placing your order, you will receive a full refund if you return all Device(s) pursuant to the RMA process. However, if during the Initial Term, you terminate the Service after thirty (30) days of placing your order for the Service, ACN may charge you an Early Termination Fee ("ETF") equal to the lesser of (i)$150.00 per account or (ii) the maximum amount permitted by applicable law.
4.8. 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.
4.9. 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.
4.10. BILLING DISPUTES. End User must dispute any charges for the Service 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, All Communications Network of Canada Co. attn: DigitalTalk Disputes, P.O. Box 720, Station B, Montreal, Quebec H3B3K3.
5. TOLL CHARGES. Every call to or from Devices using the Service 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.
6. LOST, STOLEN, ALTERED OR BROKEN DEVICES. End User shall not modify the Devices in any way without the express written permission of ACN. End User shall not use the Devices except with the Service provided hereunder. Except as otherwise provided for hereunder, End User is responsible for all lost, stolen or broken Devices and may be required to purchase a replacement to continue Service. ACN may impose replacement or repair charges based on the fair retail price of the applicable Device, plus applicable shipping costs and taxes. End User shall immediately notify ACN of any lost or stolen Device and shall cooperate with ACN in all reasonable aspects to eliminate actual or potential unauthorized use of the Device or Service. At ACN's sole option, failure to report a lost or stolen Device 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 Service.
7. 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 Service 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 Service for its own internal use only, and shall not resell, transfer or make a charge for the Service 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. Additionally, ACN's Acceptable Use Policy is hereby incorporated into this Agreement. When ACN becomes aware of an alleged violation of this Section or 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 the Acceptable Usage Policy ACN may recover from you the costs and expenses for any harm caused to ACN or its vendors in connection with a violation of this Section or the Acceptable Use Policy.
8. 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.
9. ELECTRONIC RECORDING. End User acknowledges and understands that there are federal and provincial 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 provincial 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.
10. RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF END USER COMMUNICATIONS. End User is solely responsible for maintaining the confidentiality of End User password and account information, and agrees 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 User is 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 is 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 Service 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 agrees 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 Canada. 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.
11. 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 Care. 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.
12. CHANGES TO THE AGREEMENT, SERVICES OR PLAN.
12.1. ACN may change the rates, charges, terms and conditions of your Service upon at least 30 days advance notice to you, as set forth in this Agreement. Notice of any such changes will be effective when posted on ACN's website or communicated via bill or invoice message prior to the effective date of the change, and any such future changes are hereby incorporated by reference into this Agreement. ACN may decrease the rates and charges for its Services without any advance notice. Any increase in the rates and charges for your Service will become effective only after ACN notifies you 30 days in advance of the change in a manner described above. ACN will not provide you with advance notice of changes to taxes and surcharges, except as required by applicable law.
12.2. If you continue to subscribe to, use or pay for ACN's Services after any changes in the rates, charges, terms and conditions of Services, you will be deemed to have accepted such changes by such use, as allowed by law. You will continue to be responsible to pay for all Services.
12.3. End Users do not have any property rights in telephone numbers assigned to them. ACN may change such numbers, provided it has reasonable grounds for doing so and has given reasonable advance written notice to the customers in question, stating the reason and anticipated date of change. In cases of emergency, oral notice with subsequent written confirmation is sufficient.
13.1. You may terminate this Agreement by contacting ACN Customer Care or sending written notice to ACN at any time. 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 4.7, Early Termination Fees/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.
13.2. ACN may, in its sole discretion and without liability, (a) reserves the right to relocate ACN equipment; (b) refuse to provide the Service to you; or (c) terminate or suspend the provision of any or all or any part of the Service to you, for cause, due to any of the following: (1) you, or any authorized or unauthorized users (i) use the Service in such a manner as to adversely affect ACN's services to others; (ii) tamper with the services of ACN; (iii) use the Services fraudulently or not consistent with your ordinary usage patterns established with ACN, or use the Services in or directed to high cost of service areas to an extent not supportable by your rate Plan and fees for your Services. Whenever Service is discontinued for fraudulent use of Service, ACN may, before restoring Service, require you to pay an amount reasonably estimated as the loss in revenues resulting from such fraudulent use; (2) any order or decision of the CRTC or a court or other government authority having jurisdiction that prohibits ACN from furnishing such services; (3) your breach or failure to comply with any part of this Agreement, including the AUP; or (4) non-payment or failure to maintain required security. Local Service will not be suspended or disconnected for non-payment of non-local charges. ACN may require reactivation charges to re-establish Service after suspension or disconnection. Upon disconnection, you are responsible for paying all amounts and charges that you owe.
If your Service is cancelled or suspended for any reason, you are still responsible for all outstanding charges for that Service, including payment of any bills that remain outstanding after the date of cancellation or suspension. In the event that ACN incurs any fees or expenses, including legal fees, collecting or attempting to collect, any charges owed to ACN, ACN may collect from you, as allowed by provincial law, all such fees and expenses reasonably incurred, including a Late Payment Fee on the unpaid charges.
13.3. ACN may, in its sole discretion and without liability, (a) immediately terminate the Service and this Agreement by providing written notice and a final payment date for all amounts owed by you; and (b) require you to immediately return any Devices (not purchased and paid for in full by you), in proper working order and good condition if (1) your payments are in arrears; (2) there is an institution by or against you of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of your debts; (3) you breach or fail to comply with any part of this Agreement, including the AUP; or (4) use of the Services is fraudulent or not consistent with your ordinary usage patterns established with ACN, or use the Services in or directed to high cost of service areas to an extent not supportable by your rate Plan and fees for your Services.
13.4. ACN may terminate this Agreement for any reason, provided at least thirty (30) days written notice is given to you, including where ACN no longer offers the ACN Services to which you subscribe.
15. 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.
16. TECHNICAL SUPPORT. ACN provides technical support to End Users via telephone and internet chat for the Services and the Devices provided hereunder. Support for other applications and uses is not provided or implied.
17. LICENSE: Through our Services you may be provided with digital content, 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 publishing your work in a web site; provided that, the Digital Content is incorporated for viewing purposes only, 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 includes: posting web pages containing the Digital Content on servers other than those owned or operated by ACN or its vendors; using the Digital Content for any purpose if you no longer pay for our Services; using the Digital Content to create printed or "hard copy" documents; using 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; using 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; using or permitting the use of the Digital Content or any part thereof as a trademark or service mark, or claiming any proprietary rights of any sort in the Digital Content or any part thereof; using 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; creating scandalous, obscene, defamatory or immoral works using the Digital Content or using the Digital Content for any other purpose which is prohibited by law; translating, reverse engineering, decompiling, or disassembling the Digital Content; renting, leasing, assigning, transferring or redistributing the Digital Content or a copy thereof to another person or legal entity; or using the Digital Content or making copies of it except as permitted in this Agreement.
18. 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.
19. 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, Devices, 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.
20. 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.
21. 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.
2. DEVICE, NETWORK OR FACILITY FAILURE.
3. DEVICE, 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. DEVICE, NETWORK OR FACILITY SHORTAGE.
6. DEVICE OR FACILITY RELOCATION.
7. SERVICE, DEVICE, 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.
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.
22. 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 AND THE DEVICE ARE 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 ACN'S 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 DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK 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.
23. EXPORT COMPLIANCE. End User agrees to comply with Canadian export laws concerning the transmission of technical data and other regulated materials via the Services. End User agrees to comply with applicable local, provincial and federal regulations governing the locality in which the Devices and Services are used.
24. 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.
24.1 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.
25. SURVIVAL. The provisions of Sections 3, 4, 12, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, and 29 shall survive any termination of the Agreement.
26. 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.
27. GOVERNING LAW
ACN is a federally regulated company and, therefore, this Agreement and all matters related to its validity, enforcement, construction, and performance are governed by the applicable federal laws and regulations of Canada, and only those provincial or territorial laws and regulations applicable to ACN in the province or territory in which your designated billing address as provided is located. The Agreement is subject to amendment, modification, or termination if such laws or regulations so require. In addition, the application of the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods are hereby excluded.
All information available at www.myacncanada.ca is subject to U.S. export control laws and may also be subject to the laws of the country where you reside. All Services, Devices and publications are commercial in nature. Any materials copied or downloaded from this site for or on behalf of the United States of America, its agencies and or instrumentalities ("U.S. Government"), are provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.
28. DISPUTE RESOLUTION AND ARBITRATION
To the extent permitted by applicable law and unless otherwise agreed, any dispute or claim (whether based on statute, regulation, contract, tort, or otherwise), present and future, arising from or relating to the Agreement ("Dispute") shall be determined by final and binding arbitration. The arbitration will be conducted by a single arbitrator to the exclusion of the courts in the province or territory of your billing address as provided to ACN, in accordance with ACN's Dispute Resolution and Arbitration policy ("Arbitration Policy") as described in this Section 28, and the applicable arbitration legislation in effect in the province or territory of your Canadian billing address as provided to ACN. You and ACN both agree that arbitration is mandatory in order to resolve any and all Disputes.
If you have a Dispute arising from or relating to your Service, Device or invoice, or otherwise arising from or relating to the Agreement, please first call ACN Customer Care at the number listed in Section 2 above.
This Arbitration Policy applies to any arbitration between a customer and ACN or any of its subsidiaries or affiliates (collectively "ACN"). Either party to this Agreement has the right to initiate arbitration in order to reach the final resolution of a Dispute ("Claimant"). Upon receiving a written notice of arbitration ("Notice") from a Claimant, or upon issuing a Notice to a Claimant, ACN will ensure that the Claimant is provided with a copy of this Policy. Any Dispute must be brought within two (2) years after the date on which the basis for the Dispute first arises.
A. Notice of Arbitration:
i. All customer Claimants must send their Notice to the following addresses:
ATTN: Arbitration Notice
PO Box 720, Station B
Montreal, Quebec H3B 3K3
ii. ACN will send its Notice to your billing address, as provided to ACN.
B. 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. The Agreement does not allow class or collective arbitrations. 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 REPRESENTATVIE OR CLASS PROCEEDING ("Class Arbitration Waiver"). Notwithstanding anything else in this Section 28 Arbitration Policy, 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 Arbitration Policy. THEREFORE, IF THE CLASS ARBITRATION WAIVER IS LIMITED, VOIDED, OR OTHERWISE FOUND UNENFORCEABLE, THEN THE ENTIRETY OF THIS SECTION 28 ARBITRATION POLICY (but only the Section 28 Arbitration Policy) SHALL BE NULL AND VOID.
C. Selection of Arbitrator: The Claimant and ACN will take all necessary steps to ensure that the arbitration conducted pursuant to this Policy is heard and determined by a single, neutral, unbiased and experienced arbitrator. The arbitrator shall be selected by written mutual agreement of the parties; or upon either party's application to the Court in the jurisdiction of the Claimant's billing address seeking an order appointing an arbitrator if the parties are unable to mutually agree upon an arbitrator within fifteen (15) days after receipt of the Notice. In the event ACN initiates arbitration against a customer, nothing in this Section 28.C shall be interpreted to preclude ACN from acting as a Claimant.
D. Place of Arbitration: If the Claimant's billing address is in Canada, then the arbitration shall be conducted in the Province or Territory of the Claimant's billing address, in accordance with that Province/Territory's arbitration legislation and this policy. If the Claimant's billing address is outside of Canada, then the arbitration will be held in Ontario in accordance with the applicable Ontario arbitration legislation and this policy.
E. Procedure of Arbitration:
For claims valued under $100,000, the arbitration shall consist of the following simplified procedure ("Simplified Process"):
Pleadings (Notice of Claim; Statement of Defence to be submitted within 20 days of submission of Notice of Claim; Reply to be submitted within 20 days of submission of Statement of Defence); a case management conference (which may be held by telephone conference at the election of either party); an exchange of documents on which the parties will rely; and an arbitration hearing.
If the arbitrator finds it necessary to establish further procedures, they shall be consistent with the rules of the Small Claims Court, or other similar proceeding, in the applicable Province or Territory. To the extent that no such rules exist in the applicable Province or Territory, such procedures shall be consistent with the Small Claims Rules of Ontario.
At no time shall oral discoveries be permitted as part of the Simplified Process.
For claims valued at $100,000 and over, the arbitrator shall establish those procedures to be followed in the arbitration, including in respect of all matters related to documentary production, oral discovery rights (if any), evidence, procedural motions and the conduct of the hearing, in accordance with the applicable arbitration legislation in the jurisdiction in which the arbitration is conducted.
If the arbitrator finds it necessary to establish further procedures, the arbitrator shall establish such procedures with a view to conducting the arbitration on an inexpensive and expeditious basis, while at the same time ensuring that the substantive and procedural rights of the parties are protected, and that the arbitration process is fair to both parties, keeping in mind the monetary value of the claims.
The arbitration hearing shall be limited to one half day, with discretion on the arbitrator's part to extend such time period where necessary to protect the parties' substantive and procedural rights. Where possible, the arbitrator shall order that the hearing shall be conducted in writing.
F. Representation of the Claimant: The Claimant may select any person to represent it in the arbitration.
G. Costs of Arbitration: Each party shall be responsible for paying its own arbitration costs and expenses, to the fullest extent permitted under applicable law.
H. Award of Costs:
The arbitrator shall have discretion to award costs against ACN if the Claimant is successful in the arbitration.
The arbitrator may award costs against the Claimant if the arbitrator concludes that the Claimant acted unreasonably, improperly or in bad faith in proceeding with the arbitration.
Any costs awarded shall not exceed the amount of costs that could reasonably be awarded in Court proceedings, in the jurisdiction in which the arbitration is conducted.
I. Appeal Rights: The decision of the arbitrator shall be binding upon the parties, subject to the rights of appeal provided for in the applicable arbitration legislation in the jurisdiction in which the arbitration is conducted.
J. Amendment of Policy: ACN reserves the right to amend this Arbitration Policy from time to time. Any such amendment shall become effective either (1) upon the day of execution or posting of the Arbitration Policy amendment, or (2) prospectively to a specified date in the amendment. No amendment to this Arbitration Policy shall apply retroactively from the date of the change.
29. 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.
30. 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.
31. 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 Canada Post, postage prepaid; (ii) by a notation on, or an insert with, your billing invoice; or (iii) by email. Notices from you to ACN that are required to be in writing shall be: (1) mailed to ACN Customer Care at All Communications Network of Canada Co. attn: DigitalTalk Customer Care, P.O. Box 720, Station B, Montreal, Quebec H3B3K3, or (2) Emailed to ACN Customer Care if the written notice is for the purpose of terminating your Service pursuant to Section 2 and Section 13.1 of this Agreement. Written notifications shall be deemed given: (i) three (3) business days after deposit of the notice in Canada Post mail, postage prepaid; or (ii) on the same business day, if by any other method
ACN COMPANION (for iOS)
Customer Licensing Agreement Terms of Service
Welcome to ACN Companion (for iOS) (“ACN Companion”) offered by All Communications Network of Canada, Co., a Nova Scotia company with a mailing address at PO Box 720, Station B, Montreal, QC H3B 3K3 (“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