Terms and Conditions:
Digital Phone Service Terms & Conditions
Effective February 09, 2023
Thank you for selecting Digital Phone Service offered by All Communications Network of Canada Co., with offices located at the following address: P.O. Box 720, Station B, Montreal, Québec, H3B 3K3 ("ACN") under the tradenames ACN, ACN Canada and Flash Services, which is a voice-over-Internet-protocol ("VoIP") phone service (the “Service” or "Services"). The Services include related services provided by ACN in conjunction with the Services and any software, devices, or equipment such as Family Plan, ACN Companion, analog terminal adapters, phones, routers or any other IP connection device, or other item used with the Services that is provided by ACN hereunder (collectively "ACN Equipment"), the specifics of which will depend upon the options you select when ordering your Services and will be identified in the order summary presented as part of the online ordering process (the “Order Summary”).
Because ACN offers the Services under the “Flash Services” trade name, the Policies, your billing statement(s), and other communications related to the Services, may refer to Flash Services and/or ACN.
For purposes of these Customer Terms & Conditions, "you" means the customer or subscriber, defined as (i) the person identified in ACN's account records as responsible for payment of all charges related to the Services; and (ii) any other person with actual or apparent authority to represent that person. You agree that any person able to provide your name, address, password, and/or other designated security information that is not publicly available, is authorized by you to represent you for purposes relating to the Services, including receiving information about and making changes to your account, and adding, modifying, or cancelling Services. If you do not wish for another person to so represent you, do not share your Personal Information Number, password or other security information issued for use of the Services with anyone.
A. ELECTRONIC SIGNATURE AND COMMUNICATIONS
1. ENTERING INTO THE AGREEMENT
In order to purchase and use the Services, you must enter into the Agreement by indicating your acceptance of the Agreement when prompted during the online ordering process at the ACN website. You understand that by selecting Services for purchase, entering your personal information where prompted, and indicating acceptance of the terms and conditions of the Agreement online, you are submitting an electronic signature and entering into a legally binding contract with ACN for such Services. 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 Services to the email address that you provide during the online ordering process, as may be updated by you from time to time through the methods offered by ACN.
NOT APPLICABLE IN QUÉBEC. 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.
B. VALIDITY AND AUTHORITY
If you are residing in a jurisdiction that restricts the ability to enter into this Agreement according to age or for any other reason, and you are under such age limit or otherwise forbidden by law to use the Services, you may not enter into this Agreement. By entering into this Agreement, you represent that your entry into this Agreement and use of the Services is valid and allowed in your jurisdiction. By ordering, using, or paying for the Services, you acknowledge, represent and warrant that you have the requisite authority to enter into this Agreement and to bind yourself to the terms contained herein.
C. ORDER ACCEPTANCE
ACN will notify you during the online ordering process and/or via email if your online order is conditionally accepted. Final acceptance will occur upon the Activation Date, as defined in Section 4 below. Prior to the Activation Date, ACN may accept or reject your order at its sole and absolute discretion and for any reason, including, but not limited to, cases where we are unable to provide the Services to you. If you request a change to your original order or have special requirements not communicated to ACN at the time of the original order and such changes or special requirements affect ACN's ability to meet its obligations under the original order, ACN reserves the right to cancel such order even if it was originally conditionally accepted.
D. PERSONAL DATA
E. ACCOUNT PASSWORD AND SECURITY
When you set up an account with ACN, you must choose a password and a username. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for all activities that occur under your account, including any use of or changes to your account or Services by any other person. You agree to notify ACN immediately of any unauthorized use of your account or any other breach of security. ACN will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by ACN or another party due to someone else using your account or password. You further agree not to use anyone else's account at any time without the permission of the account holder.
A. INITIAL TERM
2. TERM OF THE AGREEMENT
The initial term of this Agreement is dependent on the options that you select during the online ordering process. Most service plans have a fixed initial term of one year, but certain service plans may give you the option of selecting a different initial term. The initial term applicable to this Agreement will be identified in your Order Summary. The initial term of this Agreement begins on the Activation Date (defined below in Section 4) and expires following the time period identified in your Order Summary for such Services.
B. AUTOMATIC RENEWAL
After the expiration of the initial term, this Agreement will automatically renew on an indefinite term basis until you or ACN notifies the other party of the intent to terminate. You will be billed monthly at the rates then in effect for the Services.
FOR NOVA SCOTIA ONLY: You will receive written notice thirty (30) to sixty (60) days before the expiry date of the Agreement notifying you of the expiry date of the initial term of this Agreement. After the expiration of the initial term, this Agreement will automatically renew on an indefinite term basis until you or ACN notifies the other party of the intent to terminate.
FOR QUÉBEC ONLY: You will receive written notice sixty (60) to ninety (90) days before the expiry date of the initial term notifying you of the expiry date of the initial term of this Agreement. After the expiration of the initial term, this Agreement will automatically renew on an indefinite term basis until you or ACN notifies the other party of the intent to terminate.
3. CANCELLATION RIGHTS AND RESPONSIBILITIESA. CANCELLATION BY CUSTOMER
You may cancel the Services at any time by calling ACN Customer Care at 1-877-226-1010. Your termination rights and responsibilities are set forth below and vary depending upon (i) your location, (ii) whether or not you have entered into a fixed term contract, (iii) when you elect to cancel the Services, (iv) whether or not you have received ACN Equipment, and (v) whether or not you have obtained an economic inducement, rebate, or other consideration for entering into this Agreement.
If you enter into this Agreement as a fixed term contract, certain provincial consumer protection laws provide time periods, typically ten (10) days, during which you may change your mind and cancel the Services and only pay for Services that you have actually received (the “Cooling Off Period”). If you are in a location that has no applicable Cooling Off Period, or if you terminate your fixed term contract after the expiration of the applicable Cooling Off Period, termination before the end of the initial term may subject you to an Early Termination Fee and/or disconnect fee as described below and in your Order Summary. If you cancel the Services and fail to return any loaned or leased ACN Equipment, you also may be subject to a Non-Returned Equipment Fee as described below.
Subject to applicable law, following any cancellation or termination of this Agreement you remain responsible for paying for the Services you received before you provided notice of termination, including all fixed fees, monthly recurring charges, surcharges, taxes, rental fees, usage-based charges and other charges indicated in your Agreement which have accrued up to the termination date. You hereby consent to ACN, at ACN's discretion, charging your most recent payment method for such amounts when due.
B. PROVINCIAL CONSUMER PROTECTION LAWS
1) APPLICABLE IN ONTARIO ONLY:
In addition to the cancellation rights set forth in the Consumer Protection Act, you may cancel this Agreement at any later time subject to applicable Early Termination Fees and/or disconnect fees by calling ACN Customer Care at 877-226-1010.
Your Rights Under the Consumer Protection Act 2002
You may cancel this Agreement at any time during the period that ends ten (10) days after the day you receive a written copy of this Agreement. You do not need to give ACN a reason for canceling during this 10-day period.
If ACN does not make delivery within thirty (30) days after the delivery date specified in this Agreement or if ACN does not begin performance of its obligations within thirty (30) days after the commencement date specified in this Agreement, you may cancel this Agreement at any time before delivery or commencement of performance. You lose the right to cancel if, after the 30-day period has expired, you agree to accept delivery or authorize commencement of performance.
If the delivery date or commencement date is not specified in this Agreement and ACN does not deliver or commence performance within 30 days after the date this Agreement is entered into, you may cancel this Agreement at any time before delivery or commencement of performance. You lose the right to cancel if, after the 30-day period has expired, you agree to accept delivery or authorize commencement of performance.
In addition, there are other grounds that allow you to cancel this Agreement. You may also have other rights, duties and remedies at law. For more information, you may contact the Ministry of Consumer and Business Services.
To cancel this Agreement, you must call ACN Customer Care at 877-226-1010 or write to the address set out below in Section 3C below and deliver by any means that allows you to prove the date on which you gave notice. If no address is set out in the agreement, use any address of the supplier that is on record with the Government of Ontario or the Government of Canada or is known by you.
If you cancel this Agreement, ACN has fifteen (15) days to refund any payment you have made and return to you all goods delivered under a trade-in arrangement (or refund an amount equal to the trade-in allowance). However, if you cancel this Agreement after having solicited the goods or services from ACN and having requested that delivery be made or performance be commenced within ten (10) days after the date this Agreement is entered into, ACN is entitled to reasonable compensation for the goods and services that you received before the earlier of the eleventh (11th) day after the date this Agreement was entered into and the date on which you gave notice of cancellation to ACN, except goods that can be repossessed by or returned to ACN.
If ACN requests in writing repossession of any goods that came into your possession under this Agreement, you must return the goods to ACN’s address, or allow one of the following persons to repossess the goods at your address: ACN, or a person designated in writing by ACN. If you cancel this Agreement, you must take reasonable care of any goods that came into your possession under this Agreement until one of the following happens:
- ACN repossesses the goods.
- ACN has been given a reasonable opportunity to repossess the goods and twenty-one (21) days have passed since this Agreement was cancelled.
- You return the goods.
- ACN directs you in writing to destroy the goods and you do so in accordance with ACN’s instructions.
2) APPLICABLE IN QUÉBEC ONLY:
You may cancel this Agreement for any reason by sending a notice to ACN at one of the addresses set out below in Section 3C. The cancellation takes effect on the date of the sending of the notice or at the date you specify in the notice.
3) APPLICABLE IN BRITISH COLUMBIA ONLY:
In addition to the cancellation rights set forth in the Business Practices and Consumer Protection Act, you may cancel this Agreement at any later time subject to applicable Early Termination Fees and/or disconnect fees by calling ACN Customer Care at 877-226-1010.
Consumer's Right to Cancel
This is a contract to which the Business Practices and Consumer Protection Act applies. You may cancel this Agreement from the day you enter this Agreement until ten (10) days after you receive a copy of this Agreement. You do not need a reason to cancel.
If you do not receive the goods or services within thirty (30) days of the date stated in this Agreement, you may cancel this Agreement within one year of the contract date. You lose that right if you accept delivery after the thirty (30) days. There are other grounds for extended cancellation.
If you cancel this Agreement, ACN has fifteen (15) days to refund your money and any trade-in, or the cash value of the trade-in. You must then return the goods.
To cancel, you must give notice of cancellation at the address set forth in Section 3C below. You must give notice of cancellation by a method that will allow you to prove that you gave notice, including registered mail, electronic mail, facsimile or personal delivery.
If you send the notice of cancellation by mail, facsimile or electronic mail, it doesn't matter if ACN receives the notice within the required period as long as you sent it within the required period.
4) APPLICABLE IN NOVA SCOTIA ONLY:
You may cancel this Agreement at any time. You do not need a reason to cancel.
To cancel, you must give notice of cancellation to the address set forth in Section 3C below. You must give notice of cancellation by a method that permits you to produce evidence that you cancelled this Agreement, including registered mail or personal delivery. On notice of cancellation of this Agreement, ACN has fifteen (15) days to refund any money that you are owed.
5) APPLICABLE IN ALBERTA, MANITOBA, NEW BRUNSWICK, NEWFOUNDLAND AND LABRADOR, PRINCE EDWARD ISLAND, AND SASKATCHEWAN:
In addition to the customer cancellation rights set forth below, you may cancel this Agreement at any later time subject to applicable Early Termination Fees and/or disconnect fees by calling ACN Customer Care at 877-226-1010.
Customer Cancellation Rights
You may cancel this Agreement from the day you enter the Agreement until ten (10) days after you receive a copy of this Agreement. You do not need to provide a reason to cancel.
If you do not receive the goods or services within thirty (30) days of the date stated in this Agreement, you may cancel this Agreement within one year of the contract date. You lose that right if you accept delivery after the thirty (30) days. There are other grounds for extended cancellation. For more information, you may contact your provincial/territorial consumer affairs office.
If you cancel this Agreement, ACN has fifteen (15) days to refund your money and any trade-in, or the cash value of the trade-in. You must then return the goods.
To cancel, you must call ACN Customer Care at 877-226-1010 or give notice of cancellation to the address shown in Section 3C below. You must give notice of cancellation by a method that will allow you to prove that you gave notice, including email, mail, or personal delivery.
C. ADDRESS FOR CANCELLATION NOTICE
Address For Notice by Mail:
ACN, P.O. Box 720, Station B, Montreal, QC H3B 3K3
Address For Notice by Courier or Personal Delivery:
ACN, 1250 René-Lévesque Blvd W, Unit 2200, Montreal, QC H3B 4W8
ACN Customer Care by Phone: 877-226-1010 (Customer Service)
Please note: if you cancel your Service with ACN, it is your responsibility to make arrangements to switch to a new provider for continued phone service.
For indefinite term Agreements where Services are billed on a month-to-month basis, and where required by applicable law, ACN will provide a refund for the cancelled portion of monthly service fees that you have paid in advance for Services. This refund will be pro-rated based on the number of days left in the last monthly billing cycle after cancellation. Should you terminate a fixed term contract after any applicable Cooling Off Period, you understand and agree that you shall not be entitled to a refund unless required by applicable law.
E. TERMINATION BY ACN
Upon five (5) days written notice to you, ACN may terminate this Agreement and stop providing the Services without penalty or liability for: (i) non-payment of undisputed charges, including late fees and other charges; (ii) failure to maintain security required pursuant to Section 8 hereof; (iii) noncompliance with or violation of any provincial, municipal, or federal law, ordinance or regulation pertaining to the Services; or (iv) non-compliance with or violation of the terms and conditions of this Agreement, which includes non-compliance with or violation of ACN's Acceptable Use Policy. ACN reserves the right to pursue all other available remedies in addition to termination in the event of your breach of this Agreement and ACN shall be entitled to recover all amounts owed for Services provided under this Agreement plus any damages, losses, costs, and expenses that ACN incurs as a result of the termination of this Agreement or the actions or inactions giving rise to the termination of this Agreement, including but not limited to indemnification for any subsidy or benefit granted to you hereunder.
ACN may also stop providing Services generally at any time and unilaterally terminate this Agreement without penalty or liability by providing written notice.
APPLICABLE IN QUÉBEC ONLY: During the initial term, ACN may not unilaterally cancel this Agreement except as specifically provided herein or as otherwise may be provided under articles 1604 and 2126 of the Québec Civil Code.
F. EARLY TERMINATION FEE
Should you terminate your fixed term Agreement before the end of the initial term and after any applicable Cooling Off Period, you will be responsible for paying a fee for early termination if so stated in your Order Summary (the “Early Termination Fee” or “ETF”). You acknowledge that the Early Termination Fee is a reasonable estimate of ACN’s liquidated damages, represents consideration provided for this Agreement for the Services, and is not a penalty.
APPLICABLE IN QUÉBEC ONLY: The Early Termination Fee is calculated based on the value of the economic inducement you received when you entered into your Agreement and the amount of time unfulfilled on your Agreement at the time of termination. The value of the economic inducement is equal to the retail price of the equipment received less the pre-tax amount you actually paid for the equipment as shown on the Order Summary. The difference in these two amounts is the "Subsidy Amount". The Early Termination Fee is equal to the Subsidy Amount multiplied by a fraction representing the number of months in the term of the Agreement that have completely elapsed at time of termination (which includes the month in which the termination occurs) as compared to the total number of months committed to in your Agreement.
G. ACN EQUIPMENT RETURN UPON TERMINATION
If this Agreement is terminated at any time, for any reason, you must return your loaned or leased ACN Equipment to ACN within thirty (30) days of such termination. If your loaned or leased ACN Equipment is not received in original condition, normal wear and tear excepted, within such thirty (30) day period, the applicable Non-Returned Equipment Fee described in Section 9 hereof will become due and ACN reserves the right to automatically charge your most recent payment method for the Non-Returned Equipment Fee and you authorize ACN to do so. Such Non-Returned Equipment Fee is non-refundable.
You are responsible for return shipping costs for such ACN Equipment, unless you utilize the return mailer included by ACN with your initial delivery of ACN Equipment or a replacement return mailer obtained by contacting ACN Customer Care at 877-226-1010.
H. BUNDLED SERVICES
ACN from time to time may offer a discount on the Service when bundled with High-Speed Internet Service (“HSI”) (please see myflashservices.com for specific offer details). Where a bundle discount offer applies and you order the Service bundled with HSI, and later decide to cancel HSI without also cancelling the Service, then you will no longer be eligible to receive the discounted bundled price for the Service. In such event, you will receive a notice indicating the non-discounted price for the Service and you agree to pay the non-discounted price for the remainder of the term of this Agreement should you elect to continue to receive the Service.
4. COMMENCEMENT OF SERVICE
The provisioning of the Services will require actions on the part of both you and ACN. ACN will use commercially reasonable efforts to ensure that the Activation Date occurs within thirty (30) days of the conditional order acceptance date, subject to your actions, omissions, and particular requirements that may affect ACN's ability to commence and complete provisioning of the Services. For purposes of this Agreement, completion of provisioning of the Services and final acceptance of your order will be deemed to take place on the date that the Services commence (the “Activation Date”).
5. CUSTOMER RESPONSIBILITIES
A. COMPLIANCE WITH TERMS
You may not use the Services for any unlawful purpose. You are responsible for complying with the terms and conditions of this Agreement, including the ACN Acceptable Use Policy, and you are responsible for assuring that all others using your Services also comply with this Agreement. You understand that the Acceptable Use Policy forms a part of this Agreement. For more information regarding acceptable use of the Services, please consult the Acceptable Use Policy, which is available at myflashservices.com.
B. PAYMENT OF ALL CHARGES
You agree to pay all charges for the Services furnished to you by ACN pursuant to this Agreement, including but not limited to activation fees, monthly service charges, rental fees, minimum charges, overage fees, taxes, and other surcharges that you may incur. Such charges vary depending upon the particular Services and options you select during the online ordering process and are detailed during the online ordering process for each such selection. You are responsible for preventing unauthorized use of your Services, and you are responsible for payment for any and all use of your Services including unauthorized use and use resulting from the disclosure of your Personal Information Number, password or other security information issued for use of the Services. You understand and agree that by providing your payment method, you are authorizing ACN to use such payment method on a recurring basis to collect all amounts due under the Agreement. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party. ACN may determine and modify what payment methods we accept from time to time in our sole discretion.
You are responsible for, and shall pay, any applicable federal, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your use of or payment for the Services. Such amounts are in addition to the other amounts you have agreed to pay for the Services and will be set forth during the online ordering process and billed to your credit card or other payment method as set forth in this Agreement. If you are exempt from payment of such taxes, you must provide ACN with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date ACN receives such valid certificate. The specific amounts payable for taxes and fees are calculated as a percentage of your charges incurred and will be shown on each bill.
D. INTERNET SERVICE AND CUSTOMER EQUIPMENT
In order to receive the Services, you must provide high speed internet service and certain other items not provided by ACN hereunder (the “Customer Equipment”). High speed internet service may be available for purchase from ACN subject to a separate agreement. Customer Equipment may include, but is not limited to, phones, devices, terminal adapters, routers, modems, personal computers, software, operating systems, servers, workstations, cables, internal wiring, outlets, surge protectors, power supplies, and any other equipment or services used in connection with the Services but not provided by ACN. You may also be required to perform your own installation, configuration, and completion of certain connections with the Customer Equipment and ACN Equipment. While the Service is designed to work with most high-speed internet services, there are various technical adjustments and preparations that you may need to make to Customer Equipment and/or ACN Equipment in order to take full advantage of the Services as directed by ACN.
E. RESIDENTIAL USE OF SERVICES
The Services and any associated ACN Equipment are provided to you solely for residential use. You shall not resell or transfer the Services or the ACN Equipment to another party without ACN’s prior written consent. You are prohibited from using the Services or the ACN Equipment for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. ACN reserves the right to immediately terminate or modify your Services if your use of the Services or the ACN Equipment is, or at any time was, inconsistent with normal residential usage patterns. For more information regarding acceptable use of the Services, please consult the Acceptable Use Policy, which is available at myflashservices.com.
F. USE OF SERVICE BY CUSTOMERS OUTSIDE NORTH AMERICA
While we encourage use of the Services within North America to call other countries, ACN does not presently offer or support the Services to customers located in other countries. If you use the Services or ACN Equipment from any country other than North America, you do so at your own sole risk, including the risk that such activity violates local laws in the country where you do so. You are liable for any and all such use of the Services by yourself or any person making use of the Services provided to you. ACN reserves the right, in addition to its other rights and remedies, to terminate your Services immediately and without advance notice if you are using the Services or ACN Equipment outside of North America.
G. NOTICE OF UNAUTHORIZED USE
You shall notify us immediately, in writing or by calling ACN Customer Care at 877-226-1010, if any ACN Equipment is stolen or if you become aware at any time that your Services are being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you call or write you must provide your account number and a detailed description of the circumstances of the ACN Equipment theft, fraudulent use or unauthorized use of Services. Failure to do so in a timely manner may result in the termination of your Services and additional charges to you. Until such time as ACN receives notice of the theft, fraudulent use or unauthorized use, you will be liable for all use of the Services using ACN Equipment or a device stolen from you and any and all stolen, fraudulent or unauthorized use of the Services.
6. THE SERVICES
A. DESCRIPTION OF SERVICES
The Services are comprised of VoIP phone service with particular features, related services, and/or equipment provided by ACN depending upon the options you select during the online ordering process, and basic telephone support related to such connectivity and ACN Equipment. The ACN website sets forth in more detail the various specific offerings and features available from ACN for the Service which may be selected by you during the online ordering process. The specific options that you select, and any additional related terms will be detailed during the online ordering process for your review before you enter into your Agreement with ACN, and such options and terms shall form a part of this Agreement.
B. SERVICE DISTINCTIONS
You acknowledge and understand that the Service is not a telephone service. Important distinctions (some, but not necessarily all, of which are described in this Agreement) exist between telephone service and the Services provided by ACN. You acknowledge and understand that this treatment may affect your rights of redress before Federal or Provincial governments or telecommunications regulatory agencies.
C. NO 0+ CALLING; MAY NOT SUPPORT X11 CALLING
ACN's Services do not support 0+ calling (including without limitation collect, third party billing or calling card calling). ACN's Services may not support 311, 511, 976, 900 and/or other x11 services in one or more (or all) service areas. Please note the discussion of limitations on 911/E911 access in Section 7 of this Agreement.
D. LOCAL NUMBER PORTABILITY (LNP)
If you wish to transfer/port an existing telephone number to your Service, you may do so subject to technical feasibility and your cooperation with the porting process. ACN provides a temporary telephone number for all customers transferring their existing telephone number. You must follow the online instructions for switching your phone number. Family Plan lines are excluded from transfer/porting.
During the online ordering process, you may initiate the transfer/port process by providing an electronic signature or Letter of Authorization. Once the LNP process is initiated, this transfer may not be cancelled or interrupted by you. In the event that ACN is unable to transfer your telephone number due to technical or other issues, ACN will notify you and explain the options available to you. If you are porting a phone number to ACN, ACN may not be able to immediately provide you some services, such as 911 location services. ACN recommends that you do not cancel your old service, or make changes to the service itself, until the porting process is complete as this will interrupt your transfer to ACN. You may contact your provider to confirm your services have been cancelled once ACN has confirmed the transfer of your number.
You may be able to take, or port, your current Service phone number to another service provider. If you request your new service provider to port a number from ACN, and ACN receives your request from that new service provider, ACN will treat it as notice from you to terminate the Service for that number upon successful completion of porting, and a one-time porting charge of $14.99 per telephone number will apply. After the porting is completed, you will not be able to use the Service for that ported number. As applicable and as allowed by applicable law, you will remain responsible for any Early Termination Fee, and for all other applicable fees and charges through the end of the billing cycle in which the porting is completed, just like any other termination.
YOU ACKNOWLEDGE THAT AS PART OF THE SIGN-UP PROCESS FOR THE SERVICE, YOU HAVE CONFIRMED YOU HAVE WORKING BROADBAND SERVICE. IF YOU REQUEST TO PORT YOUR TELEPHONE NUMBER AND YOU DO NOT HAVE BROADBAND SERVICE, YOUR TELEPHONE NUMBER COULD PORT, BUT YOU WILL NOT HAVE SERVICE AND WILL NOT HAVE ACCESS TO 911 CALLING.
E. NON-VOICE SYSTEMS
You acknowledge that the Service is not set up to function with out-dialing systems including digital video recording systems, home security systems, medical monitoring equipment, fax machines, satellite TV systems, and the like. YOU AGREE THAT YOU HAVE NO CLAIM AGAINST ACN FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICE.
F. INTERACTION WITH CUSTOMER EQUIPMENT
The quality and functionality of the Services that you experience is in part dependent upon the Customer Equipment and high-speed internet connection that you provide. ACN's responsibility for resolving issues related to the use of the Services with Customer Equipment is limited to verifying that ACN's systems are in working order, testing your connection, and providing you with the ACN specific settings necessary to configure Customer Equipment. You understand and agree that ACN has no liability for damages resulting from use of Customer Equipment with the Services, and that any warranties that might otherwise apply to the Services are voided to the extent the Services are affected by use of Customer Equipment.
G. BLOCKING OF SERVICE
ACN may, without prior written notice, and consistent with applicable laws and/or regulations, block traffic to or from specific countries, cities, or NPA/NXX codes when ACN deems it necessary to take such blocking action to prevent: (i) the unlawful use of the Services; (ii) the use of the Service in violation of this Agreement; (iii) nonpayment for Service; or (iv) network blockage or degradation of service to ACN's customers. The Service will be restored as soon as is practicable following resolution of the applicable issue(s) as described herein.
As detailed herein, you acknowledge and understand that the Service does not function in the event of power failure. You also acknowledge and understand that the Service requires a fully functional broadband connection to the Internet (which must be purchased separately from the Service) and that, accordingly, in the event of an outage of, or termination of service with or by, your ISP and/or broadband provider, the Service will not function, but that you will continue to be billed for the Service unless and until you or ACN terminate the Service in accordance with this Agreement. Should there be an interruption in the power supply or Internet outage, the Service will not function until power is restored or the Internet outage is cured. A power failure or disruption may require you to reset or reconfigure ACN Equipment and/or Customer Equipment prior to utilizing the Service. Power disruptions or failures or Internet outages will also prevent dialing to emergency service numbers including the E911 calling feature. Should ACN suspend or terminate your Service, the Service will not function until such time as ACN restores your Service (which may require payment of all invoices and reconnection fees owed by you and/or cure of any breach by you of this Agreement). In the event of Service disruptions or outages due to Internet or power failure, you agree that ACN is not required to provide you any credits or any other form of remuneration for the disruption of your Service.
7. EMERGENCY SERVICES – 911 DIALING
Please read the important information regarding 911/E911 limitations for Service subscriber lines.
A. LIMITED AVAILABILITY OF TRADITIONAL 911/E911 SERVICES
You acknowledge that the Services do not offer access to emergency services in a manner similar to that provided by wireline telephone services, which emergency services are commonly referred to as either 911 or Enhanced 911 ("E911"). While ACN’s system supports 911 calling in the majority of the country, there is a difference between the 911 services that may be available with traditional wireline telephone service in your area and the 911 service that you receive with your Service. Both the 911 services and the E911 services available with traditional telephone service send the applicable emergency call directly to the responsible emergency response center. Additionally, with E911 service, the caller’s telephone number and address are immediately visible to the emergency response center call-taker. With the Service, your emergency call is sent directly to a national emergency call center where a call center operator will confirm your location and information, and then will transfer the call 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.
NOTICE: You should inform household residents, guests and other third parties that may be present at the location where you make use of the Service of the limitations associated with the Service’s access to emergency services when the digits "9-1-1" are dialed. Specifically, you should advise such people of the potential unavailability and other limitations on 911/E911 dialing, as detailed in this Agreement. Any device that you use with the Services, along with any traditional telephone handsets connected to such device, should include a warning sticker that informs any person who uses your account, with or without your permission, to access the Services of the potential unavailability of E911 services. A warning sticker has been included with your phone adapter, and it is your responsibility to ensure it is properly affixed to the device that will be used with the Service.
B. 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 areas of the country. 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 ACN’s third-party providers to offer such capabilities with VoIP calls. In those areas where offered, and subject to the limitations of ACN’s 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. It is important that you update the address of the location of your phone with ACN in the event of any changes 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.
C. 911 SERVICE OUTAGES
1) Service Outages Due to Power Failure or Disruption
The Services, including 911 dialing, do not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Services, including 911 dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure ACN Equipment and/or Customer Equipment, as defined in Section 5D above, prior to utilizing the Services, 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 Services, 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 Services, you will continue to be responsible for payment of the Services charges unless and until you terminate the Services in accordance with this Agreement. In the event of Service disruptions or 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 Services.
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 Services, including 911 dialing, from functioning. You acknowledge and agree that ACN is not responsible for Service disruptions or 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 Services, and any loss of Service, including 911 dialing, that may result even if you purchase your Internet service through ACN pursuant to a separate agreement. 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 Services, you will continue to be responsible for payment of the Service charges unless and until you terminate the Services 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) Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts
Your ISP or broadband provider, or another third party, may intentionally or inadvertently block the ports over which the Services are provided, or may otherwise impede the usage of the Services. In that event, provided that you notify ACN, 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 Services, 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 Services, and any loss of Service, including 911 dialing, that may result even if you purchase your Internet service through ACN pursuant to a separate agreement. In the event you lose Service as a result of blocking of ports or any other impediment to your usage of the Services, you will continue to be responsible for payment of the Services charges unless and until you terminate the Services in accordance with this Agreement. In the event of Service disruptions or 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 Services.
4) Service Outage Due to Suspension or Termination of Your ACN Account
Service outages due to suspension or termination of your account with ACN may prevent Services, including 911 dialing, from functioning.
5) Other Service Outages
If there is a Service outage for any reason, such outage will prevent all Services, 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.
D. 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 Services as compared to traditional 911 dialing over traditional public telephone networks.
E. ACN FAMILY PLAN
ACN Family Plan is not an interconnected service and therefore neither E911 nor 911 is available on ACN Family Plan subscriber lines.
F. ALTERNATE 911 / E911 ARRANGEMENTS
If you want to avoid the limitations of ACN's Services 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.
G. ACN COMPANION
NOTWITHSTANDING ANYTHING CONTAINED 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) THE ACN COMPANION 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, OR PARENT COMPANIES, OR THEIR RESPECTIVE AGENTS, PARTNERS, DIRECTORS, OFFICERS, 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.
H. 911 / E911 LIMITATION OF LIABILITY
AS ALLOWED BY PROVINCIAL LAW, IN NO EVENT SHALL ACN, ITS AFFILIATES, SUBSIDIARIES OR PARENT COMPANIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS OR ANY OTHER THIRD-PARTY PROVIDER OR ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS WHO FURNISH SERVICES IN CONNECTION WITH THIS AGREEMENT BE HELD LIABLE FOR ANY CLAIM, DAMAGE, OR LOSS, INCLUDING BODILY INJURY, DEATH OR DAMAGE TO PERSONS OR PROPERTY, ARISING DIRECTLY OR INDIRECTLY FROM OR RELATING TO THE LIMITATION OR UNAVAILABILITY OF 911 DIALING, E911 DIALING, OR OTHER ACCESS TO EMERGENCY SERVICES ARISING FROM OR RELATED TO THE USE OF THE SERVICES OR INABILITY TO USE THE SERVICES. YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION EXCEPT TO THE EXTENT 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. YOU ACKNOWLEDGE THAT ACN HAS NO CONTROL OVER WHETHER, OR THE MANNER IN WHICH, 911 CALLS MADE USING THE 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 IN ROUTING 911 CALLS TO LOCAL EMERGENCY RESPONSE CENTERS. ACN DISCLAIMS ANY AND ALL LIABILITY OR RESPONSIBILITY IN THE EVENT DATA USED BY ANY SUCH THIRD PARTY TO ROUTE CALLS IS INCORRECT OR YIELDS AN ERRONEOUS RESULT.
A. ACN COMPANION
This Agreement grants you a personal, non-exclusive, non-transferable, non-sublicensable right during the term 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 publish, replicate, 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. 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. Upon the expiration or termination of this Agreement, you must immediately cease all use of the ACN Companion software.
B. DELIVERY AND RISK OF LOSS
Depending upon the particular options you select during the online ordering process, ACN may lease ACN Equipment to you or sell equipment to you as identified in the Order Summary. All shipments of such equipment are F.O.B. ACN's facility. ACN's liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to you, upon delivery to the carrier who delivers the equipment to your address. For equipment that is purchased from ACN, you will bear all risk of loss of, theft of, casualty or damage to the equipment subject to the limited warranty provided herein. Any delivery and payment for delivery of the equipment by ACN is solely performed as a convenience to you and in no way shifts the risk of loss or damage from you to ACN.
C. LEASED EQUIPMENT
1) All ACN Equipment leased to you hereunder remains the property of ACN, ACN retains title to the leased ACN Equipment, and no right, title, or interest in the leased ACN Equipment shall pass to you except as expressly set forth in this Agreement. The sole contemplated use for the leased ACN Equipment is for receipt of the Services at the location you identify during the online ordering process. Until the leased ACN Equipment is returned to and received by ACN, you shall bear the entire risk of theft or loss of, damage to, or destruction of the leased ACN Equipment (except for the risk of loss or deterioration by superior force while the leased ACN Equipment is rightfully in your possession), and no such event shall entitle you to a setoff or reduction in fees due and payable by you hereunder. In the event the leased ACN Equipment is destroyed, damaged, lost, or stolen during the term of this Agreement and you request a replacement, or if you fail to timely return the leased ACN Equipment to ACN upon termination of this Agreement, you agree to pay to ACN a fee equal to the replacement value of the non-returned leased ACN Equipment (the “Non-Returned Equipment Fee”).
2) Clause required under the Québec Consumer Protection Act.
(Long-term contract of lease)
The consumer has no right of ownership in the goods leased.
The merchant shall assume the risk of loss or deterioration by superior force of the goods forming the object of this contract except where the consumer withholds the goods without right or, where such is the case, after ownership of the goods has been transferred to him by the merchant.
The consumer benefits from the same warranties respecting the leased goods as a consumer owning such goods.
Where the consumer is in default to perform his obligation in the manner prescribed in this contract, the merchant may:
(a) either exact immediate payment of that which is due;
(b) or retake possession of the goods forming the object of the contract.
Before retaking possession of the goods, the merchant must give the consumer a notice in writing of 30 days, during which time the consumer may, as he chooses:
(a) remedy the fact that he is in default;
(b) return the goods to the merchant.
The consumer may also return the goods to the merchant at any time during the leasing period even if he has not received a notice of repossession.
If the consumer returns the goods to the merchant, the contract is rescinded of right. In such a case, the merchant is not bound to return to the consumer the amount of the payments due he has already received, and he cannot claim any damages other than those actually resulting, directly and immediately, from the rescission of the contract.
The merchant is bound to minimize his damages.
It is in the consumer’s interest to refer to sections 116, 150.10, 150.11 and 150.13 to 150.17 of the Québec Consumer Protection Act (chapter P-40.1) and, where necessary, to communicate with the Office de la protection du consommateur.
3) If you are in default, all outstanding amounts owed by you under the ACN Equipment lease, including all future lease payments, shall automatically become due and payable before maturity and, in addition to the other rights of ACN under this Agreement or otherwise at law (and more particularly in Québec as set forth under the Clause required under the Québec Consumer Protection Act) and otherwise available at law or in equity, ACN may:
(a) exact immediate payment of that which is due;
(b) exact, in the manner provided for in applicable law including in Québec the Québec Consumer Protection Act, immediate payment of that which is due and all future instalments; or
(c) retake possession of the leased ACN Equipment in accordance with applicable law including in Québec the mandatory provisions of the Québec Consumer Protection Act.
In the event the leased ACN Equipment is returned to ACN, whether voluntarily or by forced repossession, you must pay to ACN the amount of the direct and immediate damages incurred by ACN, which amount shall include, but shall not be limited to, all costs, expenses and legal fees and disbursements incurred by ACN in locating, taking, holding, repairing or selling/leasing the leased ACN Equipment or asserting or pursuing any of its available remedies. All costs and expenses incurred by ACN due to your default (including costs due to collection, legal fees and rights enforcement) shall be paid by you on demand.
4) Clause required under the Québec Consumer Protection Act.
(Contract other than a contract of credit that contains a clause of forfeiture of benefit of the term)
Before availing himself of this clause, the merchant must forward the consumer a notice in writing and a statement of account.
Within 30 days following the receipt by the consumer of the notice and the statement of account, the consumer may:
(a) either remedy the fact that he is in default;
(b) or present an application to the court to have the terms and conditions of payment prescribed in this contract changed;
(c) or present an application to the court to obtain permission to return the goods forming the object of this contract to the merchant.
If the consumer returns the goods to the merchant with the permission of the court, his obligation under this contract is extinguished and the merchant is not bound to return to him the payments he has received from him.
It is in the consumer’s interest to refer to sections 14, 104 to 110 of the Québec Consumer Protection Act (chapter P-40.1) and, where necessary, to communicate with the Office de la protection du consommateur.D. LIMITED WARRANTY AND WARRANTY DISCLAIMER
1) Leased ACN Equipment provided to you by ACN may have been previously used but will have been certified by the supplier as being equivalent in function to new units and will be deemed accepted by you upon delivery. ACN warrants that the leased ACN Equipment, when properly installed and used in accordance with ACN’s instructions, will conform to the published specifications for such ACN Equipment in all material respects. As ACN’s sole responsibility and your exclusive remedy in the event of any material nonconformity with respect to leased ACN Equipment, ACN shall, at its option, make a reasonable effort to repair or replace such nonconforming ACN Equipment so it is conforming. Any claim based on the foregoing warranty must be promptly submitted in writing and shall not apply to ACN Equipment that has been modified or altered following delivery.
2) Subject to the legal warranty provided by applicable law ACN will provide a limited warranty on ACN Equipment sold hereunder as to manufacturing defects only for a period of one (1) year from the date of shipment. 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, or your handling of the item. Your sole remedy for any breach of this limited warranty is to obtain a repaired or replacement item by following the return procedures set forth herein. The limited warranty will also apply in lieu of the limited warranty included with the equipment if such included limited warranty is less favourable to you than that contained herein. ACN reserves the right to replace any device with refurbished equipment in fulfillment of this limited warranty.
3) ACN does not guarantee that a device that is supplied by you rather than by ACN will work on the ACN network. Any device that is not supplied by ACN may need to be upgraded with correct firmware in order to work on the ACN network. ACN may suggest a process wherein you are instructed to follow a sequence of steps in order to attempt to so upgrade such device. ACN does not warrant any device or assume any liability for damages incurred due to or in connection with this process.
4) NOT APPLICABLE IN QUÉBEC:
EXCEPT AS SET FORTH IN THIS AGREEMENT OR AS REQUIRED BY LAW, ACN MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE ACN EQUIPMENT, ANY EQUIPMENT SOLD BY ACN HEREUNDER, OR ANY RESULTS BASED ON THE USE OF SUCH EQUIPMENT. ACN SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
E. EQUIPMENT RETURNS PROCEDURE
1) When returning ACN Equipment to ACN, you should obtain a return material authorization (RMA) number from ACN by calling ACN Customer Care, at 877-226-1010, and return the item to the address provided by ACN. In cases where ACN assumes responsibility for the cost of shipping the return, ACN will fulfill such responsibility by providing a return shipment envelope or label. A return mailer is provided with your initial shipment for purposes of such returns.
2) For warranty claims, ACN will provide a replacement only if an RMA is obtained and the item returned is determined by ACN to be defective and covered under the warranty provided. ACN will not cover replacement for damaged, lost, stolen or modified ACN Equipment. Any item returned by you that is not covered under warranty may be refused by ACN, and you will be responsible for paying return shipping charges. If you claim an item is defective and ACN sends you a replacement item in advance of ACN’s receipt of the defective item from you, you agree that ACN may charge your payment method the current retail price of the replacement item in the event you fail to promptly return the defective item to ACN, or the difference between the value of the returned item and the replacement sent if the item is returned but determined not to be defective.
3) If you cancel this Agreement during the Cooling Off Period (if applicable), you must promptly return any purchased ACN Equipment to ACN in the same condition as when it was received by you, with all original packaging, in order to receive a full refund for such ACN Equipment. Defective products that have been purchased from ACN may be returned for a refund upon discovery of the defect within the first year following purchase.
9. CREDIT AND DEPOSIT INFORMATION
Applicants for and users of the Services may be subject to credit review, as allowed by law. You hereby give ACN permission to obtain your credit information from consumer credit reporting agencies prior to accepting your order and at any time during the term of this Agreement, including checking credit scores and requesting information regarding employment, credit history, and past addresses, for the purpose of verifying your identity and to obtain information ACN reasonably deems necessary to determine your credit acceptability so that ACN may provide you with telecommunication services. If your credit and/or telecommunications payment history is not acceptable or is unknown or indeterminable to ACN, ACN may require you to provide some form of security to obtain the Services. Security may be provided in the form of an Automatic Bill Payment (ABP), where a customer provides ACN written authorization to directly debit a credit card or chequing or savings account or other payment method for charges incurred. Other forms of security may be accepted at ACN's sole discretion. ACN determines security requirements based on the following criteria:
New Applicants - If an applicant cannot provide evidence of a recent, satisfactory payment history with a telephone utility under the applicant's name, or a credit review reasonably determines that the applicant represents an unacceptable credit risk, a form of security may be required.
Existing Customers - An existing customer may be required to secure their account if they have been delinquent in payment of their account more than twice within a twelve-month period or the customer’s account has at any time been suspended or terminated for nonpayment.
You authorize ACN to report information regarding your payment history to consumer reporting agencies. You may at any time make a request for your personal information on file with ACN, including the name of any agencies to whom ACN has reported your information. If you believe that ACN holds or has reported inaccurate information to a consumer reporting agency, you may send ACN a written notice describing the specific inaccuracy and requesting correction of same. ACN will correct inaccurate information and advise consumer reporting agencies as required by law.
10. BILLING INFORMATION
ACN reserves the right to determine and change from time to time the design and format of the bill that you will receive for the Services, as well as the dates of the monthly billing period although we will not shorten the billing period for any given month. ACN reserves the right to charge amounts due for the Services in advance, including fees, taxes, and surcharges. Such charges for Services will normally be collected in advance of the billing period. When you initially order Services, ACN will charge then for the first month of the Services and make any necessary adjustment on the first or subsequent invoice, prorating the initial partial monthly recurring charges based on the actual Activation Date. In the event your Services cannot be activated, and your conditionally accepted order is canceled by ACN, such charges will be promptly refunded. Monthly bill itemization detail can be found at your ACN online account. You will not receive a separately itemized paper bill in the mail.
B. USAGE-BASED CHARGES AND LIMITATIONS
Usage-based limitations and charges are dependent upon the details of the particular plan you select during the online ordering process. ACN will bill usage-based charges and any other amounts incurred and not previously invoiced in arrears. Usage will be billed and subject to usage-based charges and limits as set forth in your Order Summary and the rate schedules found on Flash Services’ website, myflashservices.com. Any usage-based charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found on Flash Services’ website, myflashservices.com. Service is intended for typical residential voice usage. Non-typical or non-voice usage may result in additional charges. ACN reserves the right to bill out of cycle for non-typical usage. The Acceptable Use Policy includes additional information and limitations regarding usage. You understand and agree that charges may vary month to month depending on usage, any applicable taxes and fees, and other amounts that become due from you to ACN. You understand that you may have a right to receive prior notice of the amount and date of each payment due to ACN, but to the extent such amounts are usage-based and therefore variable, and as permitted by applicable law, you hereby agree to waive your right to such prior notice.
C. RETURNED CHEQUES
Except in Québec, you will be charged the lesser of $20.00 or the maximum amount permitted by law on all cheques issued to ACN which are returned by your bank for non-sufficient funds. Cheques returned by your bank will be charged electronically to your chequing account for the face value of the cheque, pursuant to your preauthorized debit instructions given to ACN and via the Payments Canada clearing and settlement system. Save in Québec, any additional returned cheque charge will also be charged electronically to your chequing account. At ACN's sole discretion, the returned cheque charge may be waived under appropriate circumstances (e.g. a bank error). In Québec, ACN may claim and charge its direct and immediate damages resulting from all cheques issued to ACN which are returned by your bank for non-sufficient funds.
D. BILLING ADJUSTMENTS
If you have questions or concerns about your bill from ACN, please call ACN Customer Care at 877-226-1010. Any objections to billed charges must be reported to ACN within twenty (20) days of the closing date shown on your billing invoice. However, you are obligated to pay any undisputed portion of your bill in a timely manner. Adjustments to your account in the form of credits shall be made to the extent that ACN reasonably determines that such adjustments are appropriate based on the circumstances. These credits are not redeemable for cash. If ACN reasonably determines that you were not billed or undercharged for Services received, you may be retroactively billed for such amounts.
E. LATE PAYMENTS, COLLECTIONS
In all provinces except Québec, a late payment fee of up to $5 or 1.5% per month, whichever is greater, or the maximum amount permitted by law up to such amounts, will be charged on any past due balance. In Québec, the late payment fee is 5% per annum on any past due balance.
NOT APPLICABLE IN QUÉBEC OR SASKATCHEWAN: If ACN hires a collection agency and/or incurs any fees or expenses (including legal fees) to collect, or attempt to collect, any past due amounts you owe to ACN hereunder, ACN shall be entitled to recover all such additional costs of collection to the extent permitted by applicable law.
You must promptly notify ACN of any change in your invoicing address, or if applicable, in the credit card or chequing or savings account or other payment method used for payment. You may do so online through the ACN customer portal or by calling or writing to ACN Customer Care. Please include your account number with any correspondence.
G. PAYMENT METHODS
ACN reserves the right, in its sole discretion, to stop accepting credit cards or other payment methods from one or more issuers and/or payment providers. If your payment method becomes invalid for any reason, including without limitation if your card expires, you close your account, your billing address changes, or your card is cancelled and replaced owing to loss or theft, you must advise ACN promptly by either updating your card information within your "Personal Data" via your online account, contacting the ACN Customer Care department, or updating your funding source directly through your payment provider. If ACN offers, and you have opted to pay by, direct debit, and your direct debit fails or becomes invalid for any reason, you authorize ACN to charge your payment card on file, without further notice to you, for all future payments for your Services. Failure to maintain a valid payment method or to update your information could result in your Service being suspended or terminated. You may change or update your payment method at any time by logging into your online account or by contacting the ACN Customer Care department.
By providing a payment method to ACN for payment of the Services, you authorize ACN to use such payment method for payment of all amounts due to ACN hereunder. When a Non-Returned Equipment Fee, Early Termination Fee, disconnect fee, or other fees are incurred, ACN reserves the right to automatically charge your most recent payment method for any such fees and you authorize ACN to do so.
11. ACCEPTABLE USE, EXCESSIVE USE, AND SUSPENSION OF SERVICES BY ACN
A. ACCEPTABLE USE
You agree that you will not (i) use the Services in such a manner as to adversely affect ACN's services to others; (ii) tamper with the Services; (iii) use the Services fraudulently; (iv) use the Services to violate any law, rule or regulation or violate any third party's intellectual property or personal rights; (v) make excessive use of the Services; or (vi) permit or assist any user in disrupting the Services or making any use of the Services that is inconsistent with its intended purpose, this Agreement, and/or the Acceptable Use Policy. You agree to indemnify ACN for any claims, losses, damages, or other liabilities resulting from violation of the Acceptable Use Policy by you or any user of your Services.
B. EXCESSIVE USE AND OTHER LIMITATIONS
Depending upon the options that you have selected when ordering your Services, the Services may be subject to certain restrictions based on geography, excessive use, and the like. The Order Summary and Acceptable Use Policy set forth the particular terms for your plan. ACN reserves the right to bill you for applicable overage fees for excessive use.
C. SUSPENSION OF SERVICES
ACN reserves the right to suspend the Services at any time in its sole discretion without prior notice and to pursue all other available remedies for any violation of this Agreement, including the Acceptable Use Policy, and/or the acceptable use policy of any third-party provider to which the Services are subject, by you or any other user of your Service.
NOT APPLICABLE IN QUÉBEC: Whenever the Services are suspended hereunder, ACN may, as a condition for restoring Services, require you to pay a reactivation fee.
ACN may also refuse, limit or discontinue the Services without prior notice by reason of any order or decision of the CCTS, CRTC or a court or other government authority having jurisdiction that prohibits or limits ACN from furnishing such services.
12. CHANGES TO THE AGREEMENT
Subject to these Customer Terms and Conditions and applicable law, ACN fully reserves the right to modify, add, eliminate or otherwise change (collectively, “Change”) any portion of this Agreement or the Services (including any benefits or features of a service plan and the fees thereof), or any term or condition applicable to all or any portion of the Services or your service plan.
FOR MANITOBA CUSTOMERS ONLY: If we make a Change, at least thirty (30) days before the Change comes into effect, we will send you email notice, using the contact information in your account, letting you know that the Agreement has been updated and indicating the date on which the Change will come into effect. Unless the Change is to material or essential elements to the Agreement, you indicate your consent to the Change by continuing to use the Services after the effective date of the Change, and your exclusive remedy in the event you do not agree to any such Change is to cancel your Service as provided for in this Agreement. For Changes to material or essential elements of the Agreement, you must provide express consent to the Change by logging on to your account and indicating that you agree with the Changes. You may refuse to accept a Change to material or essential elements of the Agreement and rescind, or cancel your Service(s) before the Change comes into force.
FOR QUEBEC CUSTOMERS ONLY: For Services that are subject to a fixed term, we will not make any Change to essential elements of the Agreement. For all other Changes, we will provide you email notice of the Change, using the contact information in your account, at least thirty (30) days before the Change comes into effect, setting out the new clause, or the amended clause and how it read formerly, and the date on which the Change will come into effect. If a Change entails increased obligations on you or reduces our obligations to you, you may refuse to accept the Change and rescind, or cancel your Service(s) no later than thirty (30) days after the Change comes into force, and we will issue to you a prorated refund of the fees paid by you applicable to the remainder of the then-current service term and you will not be subject to an Early Termination Fee and/or disconnect fee or any other penalty, cost or cancellation indemnity. If a Change does not increase your obligations or decrease our obligations to you, you consent to such Change by continuing use of the Services after the effective date of the Change.
FOR ALL OTHER CUSTOMERS: If we make a Change, at least thirty (30) days before the Change comes into effect, we will send you email notice, using the contact information in your account, letting you know that the Agreement has been updated and indicating the date the Change goes into effect. By continuing to remain a customer or using the Services after the effective date of any Change, you consent to the Change and agree to be bound and abide by same, and your exclusive remedy in the event you do not agree to any such Change is to cancel your Service as provided for in this Agreement.
13. RISKS INHERENT TO INTERNET USE
The Services are provided over the Internet. The Internet is a separate worldwide network of computers beyond the control of ACN, and ACN does not own, operate, or manage the internet. There are a number of inherent risks associated with Internet use (collectively, the "Risks"), including, but not limited to, the risk that communications on the Internet and data available via the Internet may not be secure and may be subject to interception, distortion, delay, or loss; security measures are subject to failure and may be compromised to allow unauthorized access to information or denial of service; and that you may be exposed to computer viruses, obscene or objectionable content, and false or misleading information.
You recognize and accept the existence of these inherent Risks. You acknowledge that ACN is not responsible for mitigating the Risks or preventing or correcting any problems resulting from the Risks. You further acknowledge that security is not guaranteed even in the event that ACN designs and installs security measures as a part of the Services purchased by you. You also agree that ACN is entitled to take such actions as ACN in its sole discretion determines are necessary to investigate and/or address any problems arising from the Risks, or to comply with any requests for information from judicial or law enforcement authorities. You further understand and agree that certain material available on the Internet is copyrighted and may have been distributed in violation of applicable copyright laws, and that you, not ACN, are responsible for determining the legal status of intellectual property or other images, text, and data transmitted over the Internet.
14. LIMITATION OF LIABILITY, INDEMNIFICATION, AND NO WARRANTY
- To the fullest extent permitted by law, ACN will not be liable for any claim, loss, expense or damages, arising from the interruption, delay, error, omission, or defect in the Services caused by any third party, or by any malfunction of any service or facility provided by any third party, by an Act of God, natural disaster, fire, war, civil disturbance, or act of government, or by any other cause of force majeure, nor will ACN be liable for any unauthorized access to the Services.
- To the fullest extent permitted by law, ACN shall not be liable for any claim, loss or refund as a result of loss by you or theft or disclosure by you of the Personal Identification Number, passwords or other security information issued for use with the Services.
- Indemnification: You agree to defend, indemnify and hold harmless ACN, its affiliates, and their respective officers, directors, employees, representatives, and agents, and any other third-party provider who furnishes products or services to you in connection with this Agreement or the Service or ACN Equipment (and, at ACN's option, either defend the indemnitees or reimburse the indemnitees’ cost of defense) from and against all claims, losses, damages, fines, liabilities, penalties, costs and expenses which are a direct and immediate consequence of: (a) the negligent use of the Services by you or any other user of the Services; (b) any violation of applicable laws, regulations or this Agreement by you or any other user of the Services; (c) negligent acts, errors or omissions by you or any other user of the Services; (d) injuries to or death of any person, and for damages to or loss of any property, arising out of or resulting from the negligent use of the Services by you or any other user of the Services, or a violation of applicable laws, regulations or this Agreement by you or any other user of the Services; (e) claims for infringement of any intellectual property rights arising from the use by you or other users of your Services; (f) claims arising from content or data transmitted by or to you or other users of the Services; (g) the use of the Services with any Customer Equipment and/or any interface devices not provided by ACN; or (h) the absence, failure or outage of the Services, including but not limited to the 911 emergency response service accessible through the Services, and/or the inability of you or any other user of the Services to access emergency response center personnel, whether arising out of misrouting of 911 calls, your failure to provide ACN with accurate and up-to-date Service address information, Personal Data or other information, your failure to follow activation procedures for 911 calling, or any other reason. This provision shall survive the termination of this Agreement.
PARAGRAPHS D TO H DO NOT APPLY IN QUÉBEC.
- To the fullest extent permitted by law, ACN's maximum liability for damages arising out of mistakes, interruptions, omissions, delays, errors, or defects in transmission which occur in the course of furnishing the Services will be limited to issuing a credit in an amount equivalent to the proportionate charge to you for the period during which such faults occur, but in no event shall ACN's total liability for any such transmission faults exceed $50.
- To the fullest extent permitted by law, ACN will not be liable for any direct, indirect, special, incidental, consequential, exemplary, or punitive damages of any kind, or for lost profits or revenues, by reason of any act or omission in ACN's performance under this Agreement. This provision shall survive the termination of this Agreement.
- With respect to any other factual allegation, legal claim, or dispute by you or by any other for damages associated with the ordering (including the reservation of any specific number for use with a service), installation (including delays thereof), provision, termination, maintenance, repair, interruption, or restoration of any service or facilities offered by ACN, ACN's liability, if any, will be limited to credit allowances for such service interruptions as required by law.
- To the fullest extent permitted by law, with respect to the provisioning of, or any error or omission in, data, information, or content furnished in connection with any service provided by ACN, ACN's liability, if any, is limited to the lesser of: (i) the amount of actual money damages proven by you to have been incurred as the proximate result of your reliance on such data, information, or content; or (ii) $50.
- ACN will not be liable for any act or omission of any third-party furnishing services in connection with the Services, or for damages associated with service, systems, or equipment that ACN does not furnish, or for damages that result from the interconnection with the Services of Customer Equipment or facilities and/or services such as alarm services or DSL, or by your use of the Services in connection with a wireless network.
- No Warranties or Conditions: TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT WHERE PROHIBITED IN QUÉBEC, THE SERVICES AND ANY EQUIPMENT ARE PROVIDED "AS IS" AND ACN MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICES 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 SERVICES OR EQUIPMENT WILL MEET YOUR REQUIREMENTS; PROVIDED, HOWEVER, THAT IN QUÉBEC ONLY, THE FOREGOING SHALL NOT APPLY TO THE EXTENT THAT IT EXCLUDES OR RESTRICTS THE WARRANTIES PROVIDED FOR IN SECTION 37 OR 38 OF THE QUÉBEC CONSUMER PROTECTION ACT. WITHOUT LIMITING THE FOREGOING, ACN DOES NOT WARRANT THAT THE SERVICES WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, OR DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICES BY ACN OR ACN'S REPRESENTATIVES OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT WHERE PROHIBITED IN QUÉBEC, NEITHER ACN NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES TO ANY CUSTOMER IN CONNECTION WITH THIS AGREEMENT WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO ACN'S OR ANY CUSTOMER'S TRANSMISSION FACILITIES, PREMISES, OR EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, ANY CUSTOMER'S CONTENT, DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION, WHETHER THROUGH ACCIDENT, FRAUD,OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF ACN'S OR ITS SERVICE PROVIDERS' OR VENDORS' NEGLIGENCE.
APPLIES ONLY IN QUÉBEC: Except for the legal warranty provided by the Consumer Protection Act, ACN does not give any other warranty and ACN does not make any representation to you regarding the Services other than those set forth in this Agreement.
15. GOVERNING LAW
- This Agreement, and the parties’ respective rights and obligations hereunder, shall be governed by the laws of the Province or Territory in which the Services are provided and the laws of Canada as applicable therein, without reference to choice of law rules. 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.
- In the event of a conflict between this Agreement and any applicable tariff, the tariff shall prevail. ACN reserves the right to modify the Service at any time to reflect any change required in order to comply with any governing law, applicable tariff or underlying network service or component affecting the Service.
- Please contact ACN Customer Care at 877-226-1010 if you are not satisfied with the Services or ACN. ACN’s Problem Resolution Process is available at: https://myflashservices.com/ccts. If we are unable to provide satisfactory resolution to your problem and you still have a complaint about your telecommunications services, you may wish to contact the Commissioner for Complaints for Telecommunications Services (CCTS). More information about CCTS is available at the CCTS website at www.ccts-cprst.ca or by phone at 877-226-1010.
- The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated in the Province or Territory in which the Services are provided.
17. COPYRIGHT/TRADEMARK/UNAUTHORIZED USE OF FIRMWARE OR SOFTWARE
The Services and any firmware or software used to provide the Services or provided to you in conjunction with providing the Services, and all services, information, documents and materials on ACN's website(s), are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") incorporated into the Service are and shall remain the exclusive property of ACN or its providers and nothing in this Agreement shall grant you or any third party the right or license to use any of such marks. In addition, all intellectual property rights in any aspect of the Service, including without limitation all computer code, audio, graphics, multimedia, images, sounds, and text, are owned exclusively by ACN or its providers and are protected by United States and/or Canadian copyright laws and international copyright treaty provisions. Any unauthorized use or appropriation of the intellectual property embodied in or incorporated into any aspect of the Service is expressly prohibited by law and may result in severe civil or criminal penalties. You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service other than a nontransferable, revocable license to use such firmware or software during the term of this Agreement in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software. You warrant and represent that you possess all required rights, including software and/or firmware licenses, to use any Customer Equipment you employ with the Service.
- No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement. No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third-party beneficiary rights.
ACN may subcontract all or part of the performance of the Services to third parties. In such event, the third-party contractor may be the person to contact you with regards to the scheduling and the nature of any installation or other work to be performed.
- Assignment and Transfer:
You may not transfer or assign this Agreement or your rights and obligations in and to the Services without the express written consent of ACN. All terms and conditions of this Agreement will apply to any permitted assignees or transferees. Such transfer or assignment, when permitted, shall only apply where there is no change to the use or location of the Services. ACN reserves the right, subject to any applicable law or regulation, to assign all or part of its rights and duties under this Agreement without prior notice to you.
- Entire Agreement:
This Agreement supersedes any prior agreements between you and ACN and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. This Agreement can only be amended by ACN, as provided in this Agreement. No written or verbal statement, advertisement, or product description will contradict, interpret, or supplement this Agreement.
(2) No written or verbal statement, advertisement, or product description by an ACN Independent Business Owner (“IBO”) will contradict, interpret, or supplement this Agreement. If you have any questions or concerns with respect to a statement representation made by an ACN IBO, please call ACN Customer Care at 877-226-1010.
Each provision of this Agreement applies to the fullest extent permitted by applicable law. If any provision of this Agreement or part thereof is determined to be invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall remain valid and enforceable.
All notices required or permitted by this Agreement will be provided as set forth in this Section 18F. 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 Canadian Post, postage prepaid; (ii) by a notation on, or an insert with, your billing invoice; or (iii) by email, as provided in Section 1 above. Notices from you to ACN that are required to be in writing shall be mailed to ACN Customer Care. Written notifications shall be deemed given: (a) three (3) business days after deposit of the notice in the Canadian Post, postage prepaid; or (b) on the same business day, if sent to you by email.
ACN's services are provided without discrimination as to a customer's race, color, sex, nationality, religion, marital status, income level, source of income, or from unreasonable discrimination on the basis of geographic location.
Sections 1A, 3, 5B, 5C, 6-8, 10, 14-18, 20, and 21 of this Agreement shall survive the expiration, termination or cancellation of this Agreement. Further, those provisions contained in this Agreement that by their nature and context are intended to survive, until such duty or obligation has been fully observed, performed or discharged and such right has been fully enjoyed, enforced or satisfied, following the expiration, termination or cancellation of this Agreement, shall survive. Such surviving provisions will include without limitation: indemnification, intellectual property, limitation of liability, return of equipment, and payment obligations.
19. CONTACT INFORMATION
Web Site: myflashservices.com
Address For Notice by Mail:
ACN, P.O. Box 720, Station B, Montreal, QC H3B 3K3
Address For Notice by Courier Or Personal Delivery:
ACN, 1250 René-Lévesque Blvd W, Unit 2200, Montreal, QC H3B 4W8
ACN Customer Care Phone: 877-226-1010 (Customer Service)
High-Speed Internet Technical Support Phone: 888-414-1958
20. COMMERCIAL ELECTRONIC MESSAGES
By entering into the Agreement, you are providing your consent to receive commercial electronic messages from ACN. However, at any time, you may unsubscribe from commercial electronic messages by using the unsubscribe mechanism contained in such messages.
- APPLICABLE IN ALBERTA, BRITISH COLUMBIA, MANITOBA, NEW BRUNSWICK, NEWFOUNDLAND AND LABRADOR, NOVA SCOTIA, ONTARIO, PRINCE EDWARD ISLAND, AND SASKATCHEWAN:
This Agreement may be published in a number of languages for information purposes and ease of access by customers. It is only the English version that is the legal basis of the relationship between you and ACN, and in case of any discrepancy between a non-English version and the English version of this Agreement, the English version shall prevail.
- APPLICABLE IN QUÉBEC ONLY:
I acknowledge that a French version of this document was made available to me. The parties agree that this Agreement and all other related documents and all communications between us will be in English. Je reconnais qu’une version française de ce document avait été mise à ma disposition. Les parties aux présentes conviennent à ce que cette entente, tous les documents y afférents et toutes communications soient rédigés en anglais.
ACN COMPANION (for iOS)
Customer Licensing Agreement Terms of Service
These Terms of Service (“TOS") are between you ("you") and ACN for use of the ACN Companion application for iOS and supplement the Agreement for the Service (for purposes of these TOS, the "Service Terms" and together with these TOS, your "ACN Companion (for iOS) Agreement”). To the extent any term or condition in these TOS conflicts with any term or condition in the Service Terms, the term or condition in these TOS shall control.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- If you have any questions, complaints or claims with respect to ACN Companion, please contact ACN at 877-226-1010.
- 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.