Welcome to ACN Premium Technical Support (the "Service"), which includes related products or services used to provide technical computer support, usenet newsgroups, email and other features, products and services provided by ACN, under the service option that you have selected. The Service may be referred to as, "Remote Computer Support", "Virtual On-Site Computer Support Service", "On-Site Computer Support Service", "Online Computer Support", or "ACN Premium Technical Support". As part of the Service, ACN may license to you, or assist you in licensing from third parties, software. The Service is offered by ACN Communication Services, Inc., a Michigan corporation with offices at 1000 Progress Place, Concord, NC 28025-2449 ("ACN").
These Terms of Service ("Agreement") are between you ("you" or "customer") and ACN for the use of the Service. You must enter into this Agreement by selecting the checkbox under terms and conditions and clicking the "Continue" button during the online registration process in order to use the Service. If you do not affirmatively agree to be bound by the Agreement online by selecting the checkbox and clicking "Continue" during registration, you will not be permitted to continue with the registration process. You understand that by selecting the terms and conditions box, or any button or link required during the sign-up process, you approve of the text preceding, as may be modified through online posting of such modifications on this site from time to time, and are entering into a legally binding agreement with ACN under these terms. You hereby agree to the use of electronic communication in order to enter into contracts and to place orders, and agree to the electronic delivery of notices, policies and records of transactions initiated or completed with respect to the Service. You further waive any rights or requirements under any laws or regulations in any jurisdiction, to the extent permitted under applicable law, which require an original (i.e., non-electronic) signature or delivery or retention of non-electronic records.
If you are residing in a jurisdiction which restricts the use of Internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age, and you are under such age limit, you may not enter into this Agreement or use the Service. Furthermore, if you are residing in a jurisdiction where it is forbidden by law to use the Service, you may not enter into this Agreement and you may not use the Service. By entering into this Agreement, you explicitly state that you have verified in your own jurisdiction that your use of the Service is allowed.
THESE TERMS AND CONDITIONS STATE IMPORTANT REQUIREMENTS REGARDING YOUR USE OF ACN'S COMPUTER SUPPORT SERVICE AND YOUR RELATIONSHIP WITH ACN. YOU SHOULD READ THEM CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OURS.
NO MATERIAL WITHIN THIS SITE MAY BE COPIED, IN ANY FORM, FOR PUBLIC, PRIVATE, OR COMMERCIAL USE.
- AUTHORIZED USER, USE, AND RESPONSIBILITIES
You represent that: (i) you are 18 years of age or older and you have the legal capacity and authority to bind yourself and your employer, as applicable, to this Agreement; (ii) you consent on behalf of yourself and/or as an authorized representative of your employer, as applicable, to be bound by this Agreement; and (iii) the information you supply to us is correct and complete. You understand that ACN relies on the information you supply and that providing false or incorrect information may result in Service withholding or delays or the suspension or termination of your customer account. You agree to promptly notify ACN whenever your personal or billing information changes (including for example, your name, address, telephone number, and credit card number and expiration date).
You agree that you are responsible for all use on your account, including any secondary accounts or sub-accounts registered to your primary account. You understand this means that you accept full liability and responsibility for the actions of anyone who uses the Service via your account, or any secondary accounts, with or without your permission.
If you pre-purchase or subscribe to any ACN Services: You may not resell the Service, use it for high volume purposes, or engage in other similar activities, or use it as a virtual support center, as determined solely by ACN.
If you purchase a Service plan for one computer, you may only use the Service in connection with the computer listed in your Service plan, unless you upgrade your Service plan to include an additional computer or device. You hereby acknowledge and agree that your Service plan covers only the software, hardware and peripherals specifically listed in the Product Description. The Product Description is not an exhaustive list, and ACN may modify it any time. ACN reserves the right to charge an additional fee to perform services that you request that are not covered by your Service plan, or to refuse to perform such service. As part of your Service plan, ACN may require you to install certain software to assist ACN in the provision of the Services. ACN reserves the right to terminate this Agreement if you (i) do not agree to install the software on your PC; or (ii) alter, modify or disable the software, or its settings or configurations.
AVAILABILITY OF SERVICE
The Service you select may not be available at all times, and may not be available in the format generally marketed, and some personal computers may not be able to receive the Service even if initial testing showed that your connection was qualified or your computer environment was suitable. For Remote Computer Support, we will qualify your Internet connection for the minimum line rate (speed) available for support based on our standard line qualification procedures. Your Service plan requires Internet access; it is your responsibility to ensure that you have adequate connectivity to the Internet. All Services are provided on an AS IS basis. Line rate, access and availability of Service are not guaranteed.
ACN or its suppliers may, at any time, without notice or liability, restrict the use of the Service or limit its time of availability in order to perform maintenance activities and to maintain session control.
If you you request Service, ACN will use commercially reasonable efforts to schedule a mutually convenient service session within a reasonable period of time. However, you hereby acknowledge that circumstances outside of ACN's control (e.g., a large scale outbreak of a new computer virus) may cause significant delays in ACN's ability to schedule a service session. You hereby release ACN from any and all liability, and agree that ACN shall not be liable to you or any third party for any direct or indirect damages, resulting from such delays.
SOFTWARE LICENSES AND THIRD PARTY SERVICES
In connection with our Service, we may provide to you, via download, CD, other media, or other delivery method the use of certain software which is owned by ACN or its third party licensors, providers and suppliers, and which may be provided free or for a fee, including client and/or network security software ("Software"). We reserve the right to update or change the Software from time to time and you agree to cooperate in performing such steps as may be necessary to install any updates or upgrades to the Software. You may use the Software only as part of or for use with the Service and for no other purpose.
The Software may be accompanied by an end user license agreement from ACN or a third party. Your use of the Software is governed by the terms of that license agreement and by this Agreement, where applicable. You may not install or use any Software that is accompanied by or includes an end user license agreement unless you first agree to the terms and conditions of the end user license agreement.
With regard to any Software for which your acceptance of a separate license agreement is not required ("ACN Software"), you are hereby granted a revocable, non-exclusive, non-transferable license by ACN to use the ACN Software (and any corrections, updates and upgrades). You may not make any copies of the ACN Software. You agree that the ACN Software is the confidential information of ACN or its third party licensors, providers or suppliers, which you shall not disclose to others or use except as expressly permitted herein. The ACN Software contains copyrighted material, trade secrets, patents, and proprietary information owned by ACN or its third party licensors, providers, or suppliers. You may not de-compile, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms of the ACN Software, or otherwise reduce the ACN Software to a human readable form, modify, rent, lease, loan, use for timesharing or service bureau purposes, reproduce, sublicense or distribute copies of the Software, or otherwise transfer the ACN Software to any third party. You may not remove or alter any trademark, trade name, copyright or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Software. You are not granted any title or rights of ownership in the ACN Software. You acknowledge that this license is not a sale of intellectual property and that ACN or its third party licensors, providers or suppliers continue to own all right, title and interest, including but not limited to all copyright, patent, trademark, trade secret, and moral rights, to the ACN Software and related documentation, as well as any corrections, updates and upgrades. The Software may be used in the United States only, and any export of the ACN Software is strictly prohibited.
Third Party Software: As part of the Services, ACN may suggest that you acquire, install and use certain third party software ("Third Party Software"). Third Party Software is licensed to you by the respective owners or licensees of the Third Party Software. You must agree to the terms and conditions set forth by such owners or licensees before installing Third Party Software, whether ACN assists you in the acquisition, installation, and/or use of Third Party Software. ACN has no rights to the Third Party Software and does not license Third Party Software to you or make any representation or warranty regarding the Third Party Software.
We provide technical assistance and support for the Software and the ACN Software in accordance with our policies. To the extent that we provide technical assistance and support for Third Party Software or equipment, you must ensure that you comply with the terms and conditions under which you licensed such Third Party Software or purchased such equipment. We make no warranty that we are an authorized service provider for Third Party Software or for any equipment; it is your sole responsibility to determine if you require additional rights for us to provide such support, and if so, to acquire such rights. You acknowledge that support of Third Party Software or equipment by an unauthorized service provider may void any warranty made by the supplier of such Third Party Software or equipment.
Your license to use the Software and the ACN Software shall remain in full force and effect unless and until terminated by ACN, its third party licensors, providers or suppliers, or until your customer account is terminated. Upon termination of your customer account for any reason, you must cease all use of the Software and the ACN Software and immediately delete the Software and the ACN Software from your computer.
Other Third Party Agreements: As part of the Services, ACN may suggest certain third party services to you. If you choose to subscribe to or otherwise use any third party services, your use of any such services is subject to the terms of service of such third party service provider. You agree to comply with such provider's terms of service and that the third party provider is solely responsible for delivery of its service(s) to you and your use of them. Third party services include, but are not limited to technical support, portal, training, music, gaming and storage services that ACN may elect to make available from time to time. Violation of such third party provider's terms of service may, in ACN's sole discretion, result in the termination of your customer account and use of service.
TERM AND TERMINATION
Effective Date and Term. This Agreement goes into effect upon your acceptance of this Agreement as set forth in Paragraph 1 and shall continue, subject to the terms of this Paragraph, until terminated by either party as permitted by this Agreement. Billing for your remote, on-site, drop-off or telephone computer support service will apply on an 'as used' basis.
Termination of Service
Activation or set-up fees paid at the initiation of your service, if any, are not refundable. Subscriptions have a one year commitment, and in the event of termination for any reason within the 1 year term, you will be required to pay an early termination fee of three times the monthly service fee of your selected Service plan. Service plans purchased on a prepaid basis may be cancelled at any time by you without penalty, but all amounts paid are non-refundable. You understand and agree that any software that you acquire and install as part of a Service plan may cease to operate, update or function properly after termination of your Service.
Termination and/or Suspension by ACN. If, in the sole discretion of ACN: (a) you are in breach of any of the terms of this Agreement (including but not limited to all policies regarding abuse and acceptable use of the Service) or any license for Third Party Software; (b) your use of the Service is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Service, ACN's network, or the use and enjoyment of other users; (c) ACN receives an order from a court to terminate your Service; (d) if ACN for any reason ceases to offer the Service; (e) if you are no longer a ACN customer, or (f.) ACN determines that you are abusing the Service or using the Service excessively then, ACN at its sole election may terminate or suspend your Service immediately without notice.
Terminated Account. ACN, in its sole discretion, may refuse to accept your request for service, renewal or re-subscription following a termination or suspension of your use of the Service.
PRICING AND PAYMENT
Pricing and Fees. ACN fees and charges for the Service(s) you select are supplied to you during the ordering process and are available on the MYACN web site at Service Options unless otherwise provided for in this Agreement. You agree to pay the charges applicable to your selected Service plan, as well as any, applicable taxes and other charges including but not limited to activation fees, minimum service fees, no-show fees, fail to cancel fees, termination fees, other nonrecurring charges and set-up fees. You also agree to pay any additional charges or fees applied to your billing account for any reason, including but not limited to, interest, and charges due to insufficient credit or insufficient funds. Set up fees, activation fees, installation fees and other non-recurring fees, if applicable, will be included in your first bill. Monthly recurring charges (subscription plans) will be billed one month in advance; usage charges will be billed in arrears, and pre-purchase plans will be billed in advance, if applicable. Charges for prepaid Services (annual or other time periods, as specified) will be billed at the commencement of the Service period, and such fees are not refundable. ACN or its agent will charge your credit card or other accepted payment method for payment of any charges or fees.
Discontinuation of Service for Nonpayment. Service to you may be denied or discontinued without notice at any time if the placement of Service charges on your credit card or other accepted payment method, or your payment method provider denies or discontinues your payment method for any reason, or you fail to make payment when due or provide us with a new credit card or other accepted payment method before the existing one expires.
Late Fees. If any portion of your bill is not paid by the due date, ACN may charge you a late fee on unpaid balances and may also terminate or suspend your Service without notice. The late fee will be the lesser of five percent (5%) per month, or the highest rate permitted by law. In the event ACN utilizes a collection agency or resorts to legal action to recover monies due, you agree to reimburse us for all expenses incurred to recover such monies, including attorneys' fees.
Local telephone, Toll and Long Distance Charges. Whether you are accessing the Service from your home or away from your home, you are responsible for all telephone charges.
You have the option to change your Service(s) at any time by notifying us, provided that you qualify for and comply with any requirements of the changed Service.
Service Without Resolution. ACN will make every reasonable attempt to troubleshoot, analyze, assess, correct or otherwise fix your computer or network problem. If ACN is unable to resolve your computer problem, you will still be liable for charges for time spent by ACN in an attempt to correct a problem.
The waiver of any fees or charges lies solely at the discretion of ACN.
ACN reserves the right to charge service fees to a customer's credit card or other accepted payment method following conclusion or termination of Service until all amounts due to ACN are paid-in-full. ACN reserves the right to submit any account to collections for amounts ACN is unable to collect through normal payment process.
LIMITATIONS ON USE OF THE SERVICE
You agree that your use of the Service and the Internet, without limitation, is your sole responsibility, is solely at your own risk, and you will comply with all applicable local, state, national and international laws and regulations.
You agree that the Internet is not owned, operated or managed by, or in any way affiliated with ACN and ACN is not responsible and has no control over the information, content or other materials, some of which may be offensive, malicious or destructive in nature, which may be accessed through use of the Service. You further agree that ACN does not own or control all of the various facilities and communications lines through which service may be provided, nor does ACN guarantee access to or through websites, servers or other facilities on the Internet, whether or not such facilities are owned or controlled by ACN.
You agree that ACN cannot and does not guarantee or warrant that data available for downloading through the Service will be free of defects, infection or viruses, worms, Trojan horses or other code that manifest contaminating, malicious or destructive properties. You are responsible for implementing adequate procedures to satisfy your particular requirements for accuracy of data input and output and for maintaining a means external to the Service for the reconstruction of any lost data.
You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use, or corrupt the information you transmit or receive over the Internet. ACN is not responsible for invalid destinations, transmission errors, or corruption or security of your data.
You are not authorized to use any ACN name or mark as a hypertext link to any ACN Web site or in any advertising, publicity or in any other commercial manner without the prior written consent of ACN. You understand that your ability to link to a Web site through the Service does not, in any way, represent or imply ACN's approval of, or its determination of the quality of that product or service, and that links are provided for your convenience only. The links provided through the Service are maintained by their respective organizations, which are solely responsible for their content.
WARRANTIES AND LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE SUPPLIED HEREUNDER IS PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND AS OTHERWISE SPECIFICALLY SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY ACN (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH EQUIPMENT OR SOFTWARE), ACN (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS, INCLUDING GLOBAL SERVICE PROVIDERS (GSPS), DISCLAIM ANY AND ALL WARRANTIES FOR THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, TITLE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE. NO ADVICE OR INFORMATION GIVEN BY ACN OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. USE OF ACN COMPUTER SUPPORT IS AT YOUR OWN RISK AND IS NOT WARRANTED.
ACN DOES NOT WARRANT THAT THE SERVICE PROVIDED BY ACN WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, OR THE LIKE. ACN SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE. ACN MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED USING THE SERVICE OR THE INTERNET. ACN MAKES NO WARRANTY REGARDING THE CONTENT AND INFORMATION ACCESSED BY USING THE SERVICE OR ANY LINKS DISPLAYED. YOU EXPRESSLY ASSUME ALL RISK AND RESPONSIBILITY FOR USE OF THE SERVICE AND THE INTERNET GENERALLY. DO NOT USE THE SERVICE IN ANY HIGH RISK ACTIVITIES WHERE DAMAGE OR INJURY TO PERSON, PROPERTY, ENVIRONMENT, OR BUSINESS MAY RESULT IF AN ERROR OCCURS.
IN NO EVENT SHALL ACN (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS, INCLUDING GSPS, BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF ACN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
ALL LIMITATIONS AND DISCLAIMERS STATED IN THIS PARAGRAPH ALSO APPLY TO ACN'S THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS, INCLUDING GSPS, AS THIRD PARTY BENEFICIARIES OF THIS AGREEMENT.
ANY RIGHTS OR LIMITS STATED HEREIN ARE THE MAXIMUM FOR WHICH ACN (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), ACN'S THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS, INCLUDING GSPS, ARE COLLECTIVELY RESPONSIBLE.
THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW OR LIMIT THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, OUR EXCLUSIONS OR LIMITATIONS APPLY TO YOU TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.
ACN RESERVES THE RIGHT TO PURSUE ANY AND ALL LEGAL AND EQUITABLE CLAIMS AGAINST YOU PERTAINING TO YOUR USE OR MISUSE OF THE SERVICE OR FOR YOUR BREACH OF THE AGREEMENT (INCLUDING ANY POLICIES RELATING TO THE SERVICE.)
You agree to defend, indemnify and hold harmless ACN its officers, directors, employees, affiliates and agents and any other third-party provider who furnishes products or services to Customer in connection with this Agreement or the Service from and against all liabilities, costs and expenses, including reasonable attorney's fees, related to or arising from: (a) any violation of applicable laws, regulations or this Agreement by you (or any parties who use your account, with or without your permission, to access the Service); (b) the use of the Service or the Internet or the placement or transmission of any message, information, software or other materials on the Internet by you (or any parties who use your account, with or without your permission, to access the Service); (c) negligent acts, errors, or omissions by you (or any parties who use your account, with or without your permission, to access the Service); (d) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, except to the extent that such liabilities arise from the active negligence or willful misconduct of the other party; or (e) claims for infringement of any intellectual property rights arising from the use of the Service, Software, or the Internet.
Notices required under this Agreement by you shall be provided to the ACN Customer Service Department. Notices by ACN to you shall be deemed given: (a) when sent to your registered email address, or (b) when deposited in the United States mail addressed to you at last-known address or (c) when hand delivered to your home, as applicable. Notice of changes to this Agreement and these Terms of Service will be deemed given upon posting to the pages on the Website.
With regard to electronic communications, you and ACN further agree that: (a) the User ID and/or alias of a sender, contained in an electronic communication ("email"), is legally sufficient to verify the sender's identity and the authenticity of the communication; (b) an email sent containing your User ID and/or alias establishes you as its originator and has the same effect as a document with your written signature on it; and (c) an email or any computer printout of it, is a valid proof of the validity of the original content of the electronic communication.
DISPUTE RESOLUTION AND ARBITRATION
PLEASE READ THIS SECTION OF THESE TERMS CAREFULLY, AS IT PROVIDES FOR THE RESOLUTION OF MOST DISPUTES THROUGH BINDING ARBITRATION. If you have a dispute arising from or relating to your Service or otherwise arising from or relating to this Agreement (a "Dispute"), please first call ACN Customer Care at 877-265-3407.
As evidenced by this Agreement, the Service is an interstate commerce transaction and this Section 11 is therefore governed by the Federal Arbitration Act. All Disputes (in any case, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal or equitable theory) must be resolved by final and binding arbitration, pursuant to the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as in effect at the time of the arbitration, and as modified herein. You may contact AAA in writing at one of its locations (e.g. The Rotunda, 4201 Congress Street, Suite 125, Charlotte, NC 28209). You may also obtain additional information about AAA and its procedures from AAA's website, at www.adr.org. Notwithstanding the foregoing, either you or ACN may bring an individual action against the other party in small claims court.
Prior to commencing an arbitration proceeding with the AAA, a party seeking to arbitrate any Dispute must send to the other party, via certified mail, a written Notice of Dispute ("Notice"). The Notice to ACN must be addressed to: ACN Customer Care, 1000 Progress Place, Concord, NC 28025-2449 ("Dispute Notice Address"). The Notice must (a) describe the nature and basis of the claim or Dispute; and (b) describe the specific relief sought. You and ACN each expressly agree to attempt to resolve any Dispute by first sending the Notice to the other party, prior to initiating or commencing an arbitration proceeding with the AAA.
If a Dispute is not satisfactorily resolved within sixty (60) days after the Notice is received, either party may then commence an arbitration proceeding with the AAA. Any Dispute must be brought within two (2) years after the date on which the basis for the Dispute first arises. Any arbitration proceeding shall be fully resolved within six (6) months from the date of commencement, unless otherwise agreed in writing.
In conducting the arbitration, and in making any award, the arbitrator will be bound by and must strictly enforce the terms of the Agreement, and will not expand, limit, or otherwise modify the terms of the Agreement. The arbitrator will not award damages that are not expressly authorized by the Agreement. The arbitrator will not have authority to award punitive or exemplary damages or attorneys' fees. You and ACN expressly waive any claims for an award of damages that are excluded under the Agreement.
The arbitration will be based only on written submissions of the parties, and the documents submitted to the AAA relating to the Dispute, unless either party requests that the arbitration be conducted pursuant to the AAA's in-person, telephonic, or on-line procedures. If the amount involved in the Dispute is less than $10,000, the arbitration will be conducted in the county of the last billing address of your Service. If the amount in dispute is $10,000 or more, the arbitration will be conducted in Charlotte, North Carolina. You have the right to be represented by an attorney in any arbitration.
You must pay the applicable AAA filing fee when you submit your written request for arbitration to the AAA. Unless otherwise provided for in the AAA Rules, or in the arbitration award, all other administrative fees and expenses of arbitration, including the fees and expenses of the arbitrator, will be divided equally between you and ACN. The prevailing party may seek to recover from the other party the AAA's fees and the expenses of the arbitrator. If you select an in-person, telephonic, or on-line arbitration process, you must pay your share of any higher administrative fees and costs for the process you select.
Unless applicable substantive law provides otherwise, each party will pay its own expenses to participate in the arbitration, including attorneys' fees and expenses for witnesses, document production, and evidence presentation.
All post-award proceedings will be governed by the Federal Arbitration Act. Any award may be confirmed and enforced in any court of competent jurisdiction. The arbitration will be confidential. Neither you nor ACN may disclose the existence, content, or results of the arbitration, except to confirm and enforce the award, or as may be required by law.
CLASS ARBITRATION WAIVER. Each Dispute will be resolved on an individual basis. YOU AND ACN SPECIFICALLY AGREE THAT YOU AND ACN MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A CLAIMANT OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. This Agreement does not allow class or collective arbitrations even if applicable AAA rules would. YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING ("Class Arbitration Waiver"). Notwithstanding anything else in this Dispute Resolution and Arbitration Section 11, the validity and effect of the Class Arbitration Waiver may be determined only by a court and not by an arbitrator. You and ACN acknowledge that the Class Arbitration Waiver is material and essential to the resolution of any Dispute and is nonseverable from this Dispute Resolution and Arbitration Section 11. THEREFORE, IF THE CLASS ARBITRATION WAIVER IS LIMITED, VOIDED, OR OTHERWISE FOUND UNENFORCEABLE, THEN THE ENTIRETY OF THIS DISPUTE RESOLUTION AND ARBITRATION SECTION 11 (but only the Dispute Resolution and Arbitration Section 11) SHALL BE NULL AND VOID AND IF YOU CHOOSE TO PROCEED WITH YOUR CLAIM YOU MUST DO SO IN COURT PURSUANT TO SECTION 14.4.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S INDIVIDUAL CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT.
CLASS ACTION WAIVER
JURY TRIAL WAIVER
All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination, cancellation or expiration of this Agreement, including by way of illustration and not limitation, those clauses relating to Software Licenses, Warranties and Limitation of Liability, and Indemnification, shall survive such termination, cancellation or expiration.
ACN will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes, of other things we do not control, or an inability to obtain necessary equipment or services.
You agree not to assign or otherwise transfer, this Agreement in whole or in part, including the Software or your rights or obligations under it. Any attempt to do so shall be void. We may assign all or any part of this Agreement without notice and you agree to make all subsequent payments as directed.
This Agreement is governed by the law of the State of North Carolina, without regard to its choice of law rules, except that the arbitration provisions of Section 11 of this Agreement are governed by the Federal Arbitration Act. Unless otherwise agreed, court proceedings must be in North Carolina, provided that if you bring a small claims action you may do so in the jurisdiction of your billing address. Except as otherwise required by law, including Massachusetts laws relating to consumer transactions, any cause of action or claim you may have with respect to the Service must be commenced within two (2) years after the claim or cause of action arises or such claim or cause of action is barred. In any action or proceeding arising from or relating in any way to the subject matter of this Agreement you agree that ACN shall be entitled to recover its reasonable attorneys' fees and costs incurred in connection with said action or proceeding and in the event that ACN prevails.
Use, duplication or disclosure by any Government entity is subject to restrictions set forth, as applicable, in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19, FAR 12.212, DFARS 227.7202, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. Contractor/manufacturer is ACN or its licensors and suppliers. The use of Software and documentation is further restricted in accordance with the terms of this Agreement.
In the event of a conflict between this Agreement and any applicable tariff, the tariff shall prevail. We reserve the right to modify the Service to reflect any change in any applicable tariff or underlying network service or component affecting the Service.
ACN's failure at any time to insist upon strict compliance with any of the provisions of this Agreement in any instance shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
This Agreement, including all Attachments and all other policies posted on the Website, which are fully incorporated into this Agreement either by attachment or by reference, constitutes the entire agreement between you and ACN with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgements or other documents, written or electronic, are void.
In the event any claim proceeds in court rather than through arbitration, for any reason, both you and ACN agree that such Dispute will only be resolved on an individual basis ("Class Action Waiver"). YOU AND ACN SPECIFICALLY AGREE THAT YOU AND ACN MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
To the extent any claim proceeds in court rather than through arbitration, for any reason, if not prohibited by applicable law, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.