DigitalTalk^® Terms & Conditions

This agreement ("Agreement") is between ACN Digital Phone Service, LLC ("ACN") and an end user ("End User") of the ACN DigitalTalk^TM commercial hosted PBX services ("DigitalTalk"). Any DigitalTalk services or products ("Services") provided by ACN to End User shall be governed by the terms and conditions herein. By purchasing the Services, END USER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. They affect the legal rights between End User and ACN by, among other things, requiring (1) MANDATORY ARBITRATION OF DISPUTES; (2) charging an EARLY DISCONNECTION FEE; and (3) LIMITING ACN's LIABILITY UNDER THE AGREEMENT. End User acknowledges that they are of legal age to enter into this Agreement. End User acknowledges that the Services are offered only to End Users located in the United States, and End User agrees to utilize the Services only while located in the United States.

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 ("Term") begins on the date that End User purchases Services and shall continue for a two (2) year 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 current Term, the Term is automatically renewed for a renewal period having the same duration as the initial service period unless End User provides ACN, prior to the end of the current Term, notification of intention to cancel the service. End User agrees to pay for Services for the duration of the Term. Expiration of the Term does not alleviate End User of responsibility for paying all unpaid, accrued charges due hereunder. If End User transfers or ports their phone number to a service provider other than ACN, 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 Term, Disconnection fees may apply as set forth below.

3. 911 & SERVICE LIMITATIONS. The Federal Communications Commission (FCC) requires that ACN provide E911 Service to all End Users who use the Services within the United States.

3.1 911 ACKNOWLEDGEMENT AND WARNING LABELS. END USER ACKNOWLEDGES THAT ACN'S EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS IN THE SAME WAY THAT TRADITIONAL WIRELINE 911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION 3 AND END USER AGREES TO NOTIFY ANY POTENTIAL USER OF THE SERVICES, WHO MAY PLACE CALLS USING END USER'S SERVICES, OF THE 911 LIMITATIONS DESCRIBED HEREIN. ACN WILL PROVIDE END USER WITH WARNING LABELS REGARDING THE LIMITATIONS OR UNAVAILABILITY OF 911 EMERGENCY DIALING. END USER AGREES TO PLACE A LABEL ON AND/OR NEAR EACH TELEPHONE OR OTHER CUSTOMER PREMISE EQUIPMENT ON WHICH THE SERVICES MAY BE UTILIZED. IF ADDITIONAL LABELS ARE REQUIRED, END USER MAY REQUEST THEM FROM ACN. ACN ADVISES END USER TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.

3.2. ELECTRICAL POWER. END USER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.

3.3. INTERNET ACCESS. END USER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IF THERE IS AN INTERRUPTION OF END USER'S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE.

3.4. NON-VOICE SYSTEMS. END USER ACKNOWLEDGES THAT THE SERVICES ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMS INCLUDING HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, AND ENTERTAINMENT OR SATELLITE TELEVISION SYSTEMS. END USER HAS NO CLAIM AGAINST ACN FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.

3.5. DIGITALTALK E911 SERVICE IS A MANDATORY COMPONENT OF ALL INBOUND/OUTBOUND TRADITIONAL FAX AND VOICE SERVICE PLANS. E911 SERVICE IS NOT OFFERED ON VIRTUAL NUMBERS, TOLL-FREE NUMBERS OR SIMILAR SERVICE ACCESSORIES OR ADD-ON PLANS. E911 SERVICE IS ONLY AVAILABLE IN SELECTED AREAS. END USERS WHO SUBSCRIBE TO DIGITALTALK E911 SERVICE WILL BE REQUIRED TO INDICATE THE PHYSICAL LOCATION OF THEIR EQUIPMENT (PHONE, ATA, EDGE DEVICE, VIDEOPHONE, ETC.) WITH ACN AT THE TIME THAT THE END USER ENROLLS IN THE DIGITALTALK SERVICE, AND AGREE TO UPDATE THE LOCATION WHENEVER THE PHYSICAL LOCATION OF SERVICE CHANGES. END USERS WHO SUBSCRIBE TO DIGITALTALK MOBILE APPLICATIONS ACKNOWLEDGE THE PHYSICAL LOCATION REGISTERED FOR THEIR EQUIPMENT (PHONE, ATA, EDGE DEVICE, VIDEOPHONE, ETC.) WILL BE THE PHYSICAL LOCATION REGISTERED FOR THE MOBILE APPLICATION ASSOCIATED TO THE EQUIPMENT. END USER ACKNOWLEDGES THAT ACN'S ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER IS THE PHYSICAL LOCATION CURRENTLY REGISTERED FOR THE ACCOUNT. END USER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY ACN WILL BE BASED UPON THE PHYSICAL LOCATION PROVIDED TO ACN BY END USER. IN THE EVENT THAT THE PHYSICAL LOCATION HAS NOT BEEN UPDATED OR IS NOT COMPLETE, ACN MAY ATTEMPT TO ROUTE A 911 CALL BASED UPON THE BILL-TO OR SHIP-TO ADDRESSES ASSOCIATED WITH THE END USER'S ACCOUNT OR INITIAL ORDER.

3.6. END USERS WHO ARE REQUIRED TO SUBSCRIBE TO DIGITALTALK E911 SERVICE WILL BE SUBJECT TO A MONTHLY E911 SERVICE CHARGE. THE MONTHLY E911 SERVICE FEE SHALL BE IN ADDITION TO THE APPLICABLE RESIDENTIAL OR BUSINESS PLAN CHARGES FOR THE ASSOCIATED LINE. THE MONTHLY CHARGE FOR DIGITALTALK E911 SERVICE IS ASSESSED ON A "PER-LINE" (THAT IS, PER PHONE NUMBER BASIS), AND WILL BE SET AT A LEVEL THAT REIMBURSES ACN FOR THE DIRECT COSTS IT INCURS IN PROVIDING DIGITALTALK E911 SERVICE, INCLUDING EXPENSES ACN INCURS, EITHER DIRECTLY OR INDIRECTLY, IN THE FORM OF STATE, COUNTY OR MUNICIPAL E911 SURCHARGES, E911 AUTOMATIC LOCATION INFORMATION (ALI) DATABASE STORAGE, LINE INFORMATION DATABASE AND CALLER ID (LIDB/CNAM) EXPENSES, AND ANY OTHER TAXES OR SURCHARGES DIRECTLY OR INDIRECTLY ASSOCIATED WITH THE PROVISION OF SERVICES TO END USERS SUBSCRIBING TO THIS SERVICE. ACN RESERVES THE RIGHT TO ADJUST THE LEVEL OF CHARGES ASSOCIATED WITH THE PROVISION OF E911 SERVICES TO REFLECT INCREASES OR DECREASES IN THE COSTS IT INCURS. (SEE SECTION 14 REGARDING CHANGES TO THE AGREEMENT, SERVICES OR PLAN).

3.7. END USER ALSO ACKNOWLEDGES THAT DIGITALTALK E911 SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE. THESE CHARACTERISTICS MAY MAKE DIGITALTALK E911 SERVICES UNSUITABLE FOR SOME END USERS. BECAUSE END USER CIRCUMSTANCES VARY WIDELY, END USERS SHOULD CAREFULLY EVALUATE THEIR OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO RELY SOLELY UPON DIGITALTALK E911 SERVICE. END USER ACKNOWLEDGES THAT IT IS END USER'S RESPONSIBILITY TO DETERMINE THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET END USER'S EMERGENCY CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCY CALLS). THE FOLLOWING CHARACTERISTICS DISTINGUISH DIGITALTALK E911 SERVICE FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE:
(A) DIGITALTALK E911 SERVICE WILL NOT FUNCTION IF END USER'S ATA, PHONE, EDGE DEVICE, VIDEOPHONE, OR OTHER EQUIPMENT FAILS OR IS NOT CONFIGURED CORRECTLY OR IF END USER'S DIGITALTALK SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGE, BROADBAND SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF BILLING OR OTHER ISSUES. IF THERE IS A POWER OUTAGE, END USER MAY BE REQUIRED TO RESET OR RECONFIGURE THE EQUIPMENT BEFORE BEING ABLE TO USE THE DIGITALTALK SERVICE, INCLUDING FOR E911 PURPOSES.
(B) AFTER INITIAL ACTIVATION OF THE E911 SERVICE, AND FOLLOWING ANY CHANGE OF OR UPDATE TO END USER'S PHYSICAL LOCATION, THERE MAY BE SOME DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR. THIS INFORMATION IS TYPICALLY POPULATED INTO OUR NOMADIC E911 DATABASES PRIOR TO SERVICE ACTIVATION, BUT NO GUARANTEE CAN BE MADE THAT THE AUTOMATIC NUMBER AND LOCATION INFORMATION WILL BE ACTIVATED WITHIN THIS SCHEDULE.
(C) THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING DIGITALTALK E911 EMERGENCY SERVICE CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING THE DIGITALTALK E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON THE ACN NETWORK, THERE IS A POSSIBILITY THAT A DIGITALTALK 911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIA TRADITIONAL, LEGACY, CIRCUIT-SWITCHED TELEPHONE NETWORKS.
(D) IF END USER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE END USER'S EQUIPMENT WILL BE LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE, DIGITALTALK E911 COMMUNICATIONS MAY NOT BE DIRECTED TO THE CORRECT LOCAL EMERGENCY OPERATOR.

3.8. END USER ACKNOWLEDGES AND UNDERSTANDS THAT ACN WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING ACN OR TO ACCESS AN EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT. END USER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS ACN, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO END USER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, END USER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO 911 DIALING.

4. EQUIPMENT. To provide the Services, ACN may provide certain equipment (including but not limited to telephone, ATA, videophone, or edge device) ("Equipment") 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 or Service. End User may return any Equipment within thirty (30) days following its receipt of such Equipment at no cost other than End User's shipping costs, provided that (i) End User must first obtain a return materials authorization from ACN to return any Equipment, and (ii) such Equipment must be returned to the location specified in the return materials authorization in new condition in the original packaging or equivalent. Any returns not in compliance with (i) and (ii) above may be refused or subject to restocking and/or refurbishment fees. No returns will be accepted after thirty (30) days following Customer's receipt of Equipment. End User shall be responsible for all costs related to shipping to ACN any Equipment that is being returned.

5. BILLING, CHARGES AND PAYMENT.

5.1. PAYMENT. In order to purchase the Services, End User must provide ACN with a valid credit card number from an issuer that is accepted by ACN ("Credit Card").  End User may choose to pay monthly charges by another payment method accepted by ACN (together with any Credit Card, each, a "Payment Method") by providing appropriate payment method information as requested by ACN.  ACN may, and End User authorizes ACN to, charge the Credit Card and any other Payment Method selected by End User for any and all charges arising from End User's use of the Services. ACN will charge End User's selected Payment Method for monthly charges.  End User agrees to notify ACN of any change to the Credit Card or other Payment Method 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 or other Payment Method provider to End User's Credit Card or other Payment Method account for exceeding credit limit, insufficient funds or other reasons. Estimated ship dates of Equipment are approximate and are not guaranteed. If End User enters Payment Method information other than a Credit Card for monthly charges, End User acknowledges and agrees that ACN may place End User's order on hold until such time as ACN is able to process or confirm processing of such Payment Method.  If End User's order is placed on hold, End User acknowledges and agrees that End User will not have access to or use of the Services until such time as ACN releases the order from hold and activates or otherwise provides the End User's Services.

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 or other selected Payment Method. 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 selected Payment Method and 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 or other Payment Method 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. If charges cannot be processed to any Payment Method, 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 thirty (30) 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 End User terminates fax or voice Services prior to the end of the fixed term of the Agreement, ACN may charge a service "Disconnection Fee" of up to $200 per phone or extension. Depending on End User's Plan, such Disconnection Fees 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. ACN may, and End User authorizes ACN to, charge any Payment Method for such Disconnection Fees.

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 residential 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.

5.11. 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 web site. 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. TELEPHONE NUMBER. Any telephone number provided by ACN ("Number") to the End User shall be leased and not sold. End User is not to use the Number with any other device other than the Equipment without the express written permission of ACN. ACN reserves the right to change, cancel or move the Number at its sole discretion.

8. 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.

9. 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. ACN reserves the right to immediately terminate or modify the Services of any End User using Unlimited PSTN or fax Plans if ACN determines, in its sole discretion, that End User is not using the Unlimited PSTN or fax Plans for End User's reasonable business use.

10. 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.

11. 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.

12. 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 agree 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.

13. 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.

14. CHANGES TO THE AGREEMENT, SERVICES OR PLAN. ACN may change any of the rates, charges, terms or conditions of DigitalTalk or the Services from time to time. ACN also reserves the right to discontinue any of the Services. Any such changes will be posted on the DigitalTalk website prior to the effective date of the change, and any such changes shall be deemed accepted by you by your continued use of the Services. Such changes shall be deemed automatically 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 End User’s Service will become effective only after ACN notifies End User in advance of the change. 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 anytime, subject to any applicable change of service fee and additional terms and conditions.

15. TERMINATION. End User agrees to provide ACN with at least thirty (30) days notice of 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.

16. PRIVACY. ACN utilizes the public Internet and third party networks to provide fax, voice and video communication services. Accordingly, ACN cannot guarantee the security of fax, voice and video communications of End User. ACN is committed to respecting an End User's privacy. Once End User chooses to provide personally identifiable information, it will only be used in the context of the End User's relationship with ACN. ACN will not sell, rent, or lease End Users' personally identifiable information to others. Unless required by law or subpoena or if End User's prior permission is obtained, ACN will only share the personal data End User provides with other ACN entities and/or business partners that are acting on ACN's behalf to complete the activities described herein. Such ACN entities and/or national or international business partners are governed by ACN's privacy policies with respect to the use of this data. ACN is required to file numerous reports with different administrative bodies. As such, ACN may provide aggregate statistics about customers, sales and traffic patterns. None of these reports or statistics will include personally identifiable information. However, ACN reserves the right to use personally identifiable information to investigate and help prevent potentially unlawful activity that threatens either ACN or any company affiliated with ACN. Moreover, upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, ACN may disclose personally identifiable information.

17. 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.

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 ACN, its affiliates and its vendors harmless from any claims or damages relating to 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 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. WARRANTY AND LIABILITY LIMITATIONS. ACN MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER ACN NOR ITS VENDORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO ACN'S OR END USER'S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF END USER'S 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 VENDORS' NEGLIGENCE. ANY CLAIM AGAINST ACN MUST BE MADE WITHIN 90 DAYS OF THE EVENT OF THE CLAIM OR 90 DAYS FROM THE TERMINATION OF SERVICE, WHICHEVER IS EARLIER AND ACN HAS NO LIABILITY THEREAFTER. ACN'S LIABILITY SHALL BE LIMITED TO REPAIR, REPLACEMENT, CREDIT OR REFUND. ACN MAY ELECT TO PROVIDE A REFUND IN LIEU OF CREDIT, REPLACEMENT OR REPAIR. IN NO EVENT SHALL ACN'S TOTAL LIABILITY HEREUNDER EXCEED THE AMOUNTS PAID BY END USER TO ACN IN THE PRIOR TWELVE (12) MONTHS FROM DATE OF CLAIM.

22. 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.

23. PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE. Upon expiration, cancellation or termination of the Services, End User shall relinquish and discontinue use of any Numbers, voice mail access numbers and/or web portals assigned to End User by ACN or its vendors.

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.

25. SURVIVAL. The provisions of Sections 3, 5, 21, 18, 19, 20, 21, 23, 25, 26 and 28 shall survive any termination of the Agreement.

26. NOTICES. ACN communicates with End Users primarily via email. Notices to End User shall be sent to the email address specified by End User at the time of registration for the Services or as subsequently specified by End User ("Email Address"). End User is responsible for notifying ACN of any Email Address changes. End User agrees that sending a message to the Email Address is the agreed upon means of providing notification. Email is used to communicate important information about the Services, billing, changes to the Services and other information. The information is time-sensitive in nature. It is required that End User read any email sent to the Email Address in a timely manner in order to avoid any potential interruption in the Services provided hereunder.

27. 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.

28. GOVERNING LAW / RESOLUTION OF DISPUTES.

28.1. Mandatory Arbitration. PLEASE READ THIS PROVISION CAREFULLY. IT MEANS THAT, EXCEPT AS NOTED BELOW, END USER AND ACN WILL ARBITRATE ANY DISPUTES OR CLAIMS IN ANY WAY RELATED TO OR CONCERNING THE AGREEMENT, OR THE PROVISION OF SERVICES OR PRODUCTS TO END USER, INCLUDING ANY BILLING DISPUTES ("CLAIM"). CLAIMS SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION ("AAA"). This agreement to arbitrate also requires End User to arbitrate claims against other parties relating to Services or Products provided or billed to End User if Claims are asserted against ACN in the same proceeding. ARBITRATION WILL BE CONDUCTED UNDER THE AAA'S PUBLISHED COMMERCIAL ARBITRATION RULES AND SUPPLEMENTAL PROCEDURES FOR CONSUMER-RELATED DISPUTES, WHICH ARE AVAILABLE BY CALLING THE AAA AT 800-778-7879 OR VISITING ITS WEB SITE AT www.adr.org. The AAA has a fee schedule for arbitrations. The party filing for arbitration will pay the arbitrator's fees and all administrative expenses. End User and ACN agree to bear their own other fees, costs, and expenses, including those for any attorneys, experts, and witnesses. The AAA Supplemental Procedures for Consumer-Related Disputes provide that unless a hearing is requested, disputes will be resolved based on written submissions and no personal appearance is required. If End User requests an arbitration hearing, that hearing will take place either telephonically or in Charlotte, North Carolina. As a limited exception to the agreement to arbitrate, End User and ACN agree that: (a) End User may file Claims in small claims court in Mecklenburg County, North Carolina, if the Claims qualify for hearing by such court; (b) if End User fails to timely pay amounts due, ACN may assign the account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement; and (c) any Claim filed as a class action is not subject to arbitration but instead must be filed in the state or federal courts situated in Charlotte, North Carolina.

28.2. Prefiling Notice of Claim. BEFORE INSTITUTING ARBITRATION OR SUIT, END USER AGREES TO PROVIDE ACN WITH AN OPPORTUNITY TO RESOLVE THE CLAIM BY SENDING A WRITTEN DESCRIPTION OF THE CLAIM TO ACN AT ACN, INC., ATTN: LEGAL DEPARTMENT, 1000 PROGRESS PLACE, CONCORD, NC 28025. IF THE PARTIES ARE NOT ABLE TO RESOLVE THE CLAIM WITHIN 30 DAYS OF RECEIPT OF NOTICE, THEN END USER MAY INITIATE ARBITRATION OR SUIT AS DESCRIBED IN SECTION 28.1. All claim notices should be sent to: ACN, Inc., Attn: Legal Department, 1000 Progress Place, Concord, NC 28025

28.3. Governing Law. The Agreement and the relationship between End User and ACN shall be governed by the laws of the State of North Carolina without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 28.1, End User and ACN agree to submit to the personal and exclusive jurisdiction of the courts within the state of North Carolina, to the extent possible in Mecklenburg County, and waive any objection as to venue or inconvenient forum. The failure of ACN 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 agrees 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.

29. 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.