Bonded AceDSL® Service
ACE INNOVATIVE NETWORKS, INC.®
Bonded AceDSL® Service and Usage Agreement
I. Acceptance of Terms
I, on behalf of (the "Customer") understand that in order to obtain service from ACE Innovative Networks, Inc. ("ACE"), I must read this Service and Usage Agreement, including Exhibit A - Bonded AceDSL® Order Form (collectively, the "Agreement") carefully and accept the terms of this agreement by signing below.
I understand that by signing this Agreement or by using any of ACE's services, including, without limitation, the Bonded AceDSL® service, Web Site Hosting or E-mail Services (collectively, the "Service" or "Services"), I acknowledge that I have read this Agreement, which constitutes a contractual agreement between myself or the party I represent and ACE; and, that I agree to be bound by all the terms and conditions set forth herein.
This Agreement shall remain in effect for an initial term beginning as of the date hereof and ending on the Contract End Date set forth in Exhibit A. Thereafter, the term of this Agreement shall automatically be renewed annually, on each occasion, for an additional one (1) year period beginning on the day immediately following the Contract End Date and ending on the next anniversary of the Contract End Date, unless either I or ACE shall give notice to the other canceling this Agreement, which notice will only be effective if given no earlier than sixty (60) days and no later than thirty (30) days prior to the Contract End Date. If a valid and timely notice of cancellation is given, this Agreement will terminate as of the Contract End Date. For the purposes of this Agreement, the Contract End Date shall mean the last day of the then current annual period in effect. In the event that I wish to terminate my Bonded AceDSL® service with ACE prior to the Contract End Date, I understand that I will be subject to a break-up fee (the "Break-up Fee") equal to the amount of the recurring Monthly Fee, as described in Exhibit A, plus any Discount given on Non-Recurring (NRC) items, as described in Exhibit A, payable upon my submission of notice of termination sent in accordance with Section XVI of this Agreement. Such termination will then be effective as of the thirtieth (30th) day after the date such notice is properly sent to ACE via e-mail, and I will be charged at the applicable rate for the Services rendered during the said 30-day period. A purported notice of termination which is not accompanied by the applicable Break-up Fee shall be null and void and of no force or effect at the option of ACE.
The terms "I", "me", "my" or "myself", as used herein, shall refer to the authorized ACE Customer, and, where appropriate, shall be deemed to refer and apply to business entities, their employees, officers, successors and permitted assigns, or such other groups' accounts as may be approved by ACE to receive the Services.
II. User Obligations
A. Acceptable Use
I agree to use my ACE account in a way that conforms to all applicable laws and regulations. I specifically agree not to make any attempt to gain unauthorized access to any systems or networks. I agree that I will not use ACE's services (including any Web site I established on ACE's server) to publish, post, distribute or disseminate any legally obscene or otherwise unlawful materials.
I also agree not to publish post, distribute or disseminate any proprietary information that belongs to third parties, including trademarks or copyrighted information, without express authorization of the third party rights' holder. I agree that ACE reserves the right to release my name to any law enforcement agencies in the event that I or those individuals who access ACE's services through my account are involved in any unlawful conduct.
B. PasswordsI agree not to share passwords or accounts with other individuals (except when using one Bonded AceDSL® connection for multiple computers within LAN). I understand that I am responsible for maintaining the security of my accounts and passwords and that ACE shall provide me with a new password in the event that security of my account is compromised.
C. System SecurityI understand and agree that I am prohibited from utilizing ACE's services to compromise the security or tamper with system resources or accounts on any of computers, routers, servers, modems, or any other equipment belonging to ACE or to an unrelated third party. I understand that I am prohibited from distribution of tools designed to compromise security of any systems or networks. Examples of such tools include but are not limited to password guessing programs, cracking tools or network probing tools. I agree that ACE reserves the right to release my name to system administrators at other sites in order to assist them in resolving security incidents in the event that I or those who access ACE's services through my account are involved in violation of System Security.
III. Billing Policies
I agree and assume full responsibility for making timely and full monthly payments for the Services for the duration of the contract term as described in the Exhibit A - Bonded AceDSL® Order Form. I understand that monthly payments are due on the 21st day after the billing statement date for a given billing cycle. I understand that the billing cycle coincides with the calendar month and that my first bill will be pro-rated in the event that the Service Start Date, as described in Exhibit A, is other than the 1st day of a calendar month.
I understand that I will be charged interest at a monthly rate of 1.5% on any unpaid balance for any previous billing cycle which remains outstanding at the time a monthly statement is generated. If your account becomes delinquent, ACE reserves the right, at its sole discretion, to suspend or cancel your account and terminate any or all Services. Any additional services ordered or charges incurred during a billing cycle will be reflected on the statement for the next following billing cycle.
I understand and agree that ACE shall not be responsible for any charges or expenses that I may incur resulting from overdrawing my bank account or exceeding my credit card limit as a result of a charge generated by ACE pursuant to this authority.
I agree to provide ACE with accurate and complete billing information and to notify ACE of any changes within thirty (30) days of the change.
I understand that the standard service fees and charges do not include, and I agree to pay in addition thereto, any and all applicable sales, use and other taxes, duties, surcharges and levies of every kind and nature which may be required or imposed by any law or regulation. I also agree to pay all attorneys' fees and costs of collection arising in connection with efforts to collect any unpaid balances on my account or to otherwise enforce this Agreement and your rights hereunder.
I understand that, in order to activate my account, I will be asked to provide certain information, including, without limitation, information necessary to conduct appropriate credit verification. I warrant and represent that any information I provide ACE or its representatives is truthful and accurate, and that ACE may make a credit inquiry to verify the same. ACE may, at any time and from time to time, set a credit limit that would apply to all outstanding charges on my account or require that I make a deposit or other prepayment for activation or continuation of service. Any such deposit or prepayment may be applied to amounts past due on my account. My deposit or prepayment will not bear any interest, and any balance remaining after termination of Service and payment of any and all outstanding charges on my final bill will not be refunded, unless required by law. ACE may terminate or suspend my service if I exceed my account's credit limit.
IV. Limitation of Liability
I HEREBY WAIVE, AND RELEASE AND DISCHARGE ACE FROM, ANY AND ALL CLAIMS AND LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES TO BE PROVIDED HEREUNDER, AND AGREE THAT I SHALL MAKE NO CLAIM AGAINST ACE FOR ANY DAMAGE, LOSS OR LIABILITY OF ANY KIND, WHETHER DIRECT OR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE, FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS TERMINATION, MY WEBSITE, MY USE OF THE SERVICES, MY OTHER ACTIVITIES IN CONNECTION HEREWITH, OR ANY OTHER MATTER. I UNDERSTAND AND ACCEPT THAT ACE SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY FOR LOSSES RESULTINGFROM SYSTEM FAILURE OR SERVICE INTERRUPTION.
I UNDERSTAND THAT SERVICE MAYBE INTERRUPTED AND THAT SUCH INTERRUPTION MAY RESULT IN DROPPED TELEPHONE CALLS, INABILITY TO COMPLETE TELEPHONE CALLS, INABILITY TO ACCESS SERVICES DURING TIMES OF PEAK USAGE, OR MAINTENANCE/IMPROVEMENT OPERATIONS, INFERIOR SOUND QUALITY, AND OTHER PROBLEMS THAT MAY ARISE FROM TIME TO TIME ACE WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO PREVENT SUCH INTERRUPTION AND/OR REPAIR LOSSES RESULTING FROM SYSTEM FAILURE TO THE EXTENT THAT THE SAME IS WITHIN ITS REASONABLE CONTROL, HOWEVER, I AGREE THAT IN NO EVENT SHALL ACE, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUBSIDIARIES OR AFFILIATES BE LIABLE FOR DAMAGES OF ANY KIND IN EXCESS OF ONE ($1.00) DOLLAR. I UNDERSTAND THAT ACE DOES NOT AND CANNOT CONTROL THE FLOW OF VOICE TRANSMISSION, OR DATA, OR INFORMATION TO OR FROM ITS NETWORK AND OTHER PORTIONS OF THE INTERNET; THAT SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES; AND AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT MY CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ACE CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, ACE DISCLAIMS, AND RELEASE ACE FROM, ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS. I ALSO UNDERSTAND THAT IN NO EVENT SHALL ACE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, MONETARY LOSS, ARISING OUT OF VIOLATIONS OF THIS AGREEMENT OR MY USE OF OR INABILITY TO USE ACE'S SERVICES AT ANY TIME.
V. Warranty Disclaimer
I ASSUME FULL RESPONSIBILITY AND RISK FOR USE OF THE ACE SERVICES BY ME AND THOSE INDIVIDUALS WHO ACCESS ACE'S SERVICES THROUGH MY ACCOUNT. I UNDERSTAND THAT ACE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND THAT ACE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR FREE OF DEGRADATION OR ERROR. I ALSO UNDERSTAND THAT ACE DOES NOT WARRANT THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIALS AVAILABLE ON THE INTERNET AND ACCESSIBLE VIA ACE IS FREE OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS.
I UNDERSTAND AND AGREE THAT ACE MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDING ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED BY OR THROUGH ACE OR ON THE INTERNET GENERALLY. I ACKNOWLEDGE THAT NO ADVICE OR INFORMATION GIVEN BY ACE, ITS EMPLOYEES, AGENTS, AFFILIATES OR CONTRACTORS SHALL CREATE ANY SUCH WARRANTY.
I HEREBY AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS ACE, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, SUBSIDIARIES AND AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGE, LOSS, LIABILITY, COSTS AND EXPENSES, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS' FEES, related to or arising from any violation of this Agreement, including, but not limited to, unlawful behavior or the infringement of any intellectual property rights of a third party, by me or those who access ACE's services or the Internet through my account. I agree that under no circumstances MAY I sue or recover damages from ACE, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, SUBSIDIARIES OR AFFILIATES as a result of ACE's decision to remove material from its servers, suspend or terminate my account or take any other action during the investigation of a suspected violation of this Agreement or as a result of ACE's conclusion that a violation has occurred.
I UNDERSTAND THAT IN NO EVENT SHALL ACE BE LIABLE under tort, contract, or other legal theory FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED, TO LOST PROFITS, damage, accident, injury to person or property ARISING OUT OF VIOLATIONS OF THIS AGREMEENT OR MY USE OF OR INABILITY TO USE ACE'S SERVICES.
VII. Provision of Service
A. Dry Loop DSL Circuits
I understand that my Bonded AceDSL® service required provision of two or more telephone lines that carry DSL signal but do not carry dial tone ("Dry Loop DSL Circuits"). I further acknowledge that a local telephone company will be contracted to perform the installation of the Dry Loop DSL Circuits and that I must provide the local telephone company technician access to my premises on the scheduled date or dates of installation. I understand that ACE will work in good faith to coordinate timely Dry Loop DSL Circuit installations and that ACE makes no representation of the timeliness of such installations.
I understand that a local telephone company technician is under no obligation to install extended onpremise inside wiring on my premises and that telephone jacks for the Dry Loop DSL Circuits may be installed within two (2) feet of the point of entry of the telephone lines into my premises (the "Network Interface Device" or the "NID") (see Paragraph VII.B herein below).
I further acknowledge that ACE provides no warranties whatsoever as to availability of DSL signal on a particular Dry Loop DSL Circuit at any point in time, including my scheduled installation date (see Paragraph VIII herein below).
B. On-Premise Installation and Inside Wiring
I understand that I must provide the ACE technician with access to my premises on the agreed upon date in time (the "ACE Dispatch") to complete the installation of the Bonded AceDSL® service. If I fail to provide such access I agree to pay ACE an amount equal to three hundred U.S. dollars ($300.00) for each missed ACE Dispatch that occurs due to my actions or failure to act.
I understand that during my Bonded AceDSL® service installation visit an ACE technician will extend the Dry Loop DSL Circuit cabling and will install two or more standard RJ-11-type telephone jack to a specified location on my premises provided that such location is no farther than twenty-five (25) feet from the NID. I understand that ACE is will not perform any cosmetic or construction work to conceal the Dry Loop Circuit cabling. I further acknowledge that if I select a third party to perform the Dry Loop Circuit cabling installation I am still responsible for Non-Recurring Charges ("NRC") as outlined in Exhibit A.
I acknowledge that upon termination of my bonded AceDSL® service, ACE shall not be obligated to remove any cabling or telephone jacks installed by ACE at my premises.
C. ACE-Owned Customer Premise Equipment (CPE)
I understand that Bonded AceDSL® service requires installation, at my service location, of a router or another device designed to terminate Dry Loop DSL Circuits (the "ACE-Owned Customer Premise Equipment" or the "ACE CPE"). I further acknowledge that the ACE CPE is and at all times shall remain the sole and exclusive property of ACE, and I shall acquire no interest therein by virtue of the payments provided or for any other reason, except if agreed upon by ACE.
I shall not open, alter, misuse, tamper with or remove the ACE CPE as and where installed by ACE, and will not remove any markings or labels from the ACE CPE indicating ACE ownership or serial or identity numbers. I shall safeguard the ACE CPE from loss or damage of any kind and (except for any self installation procedures approved by ACE) will not permit anyone other than an authorized representative of ACE to perform any work on the ACE CPE.
If the ACE CPE is physically damaged, destroyed, lost or stolen, in whole or in part, while in my possession, I shall notify ACE within five (5) business days of such event. I shall further reimburse ACE, within ten (10) business days of such event, an amount equal to the ACE CPE Declared Value, without any deduction for depreciation, wear and tear, as set forth in Exhibit A. I further acknowledge that any event described in Paragraph VII.B.iii of this agreement shall in no way accelerate, delay, postpone or cancel the Contract End Date as defined in Paragraph I of this Agreement. Upon termination of Bonded AceDSL® service, for any reason, I acknowledge that my right to possess and use the ACE CPE shall likewise terminate. In such event, the ACE CPE shall be returned to ACE in the same condition as when received, ordinary wear and tear expected, within five (5) business days of the date of Bonded AceDSL® service termination date, I shall promptly return the ACE CPE or arrange with ACE to schedule retrieval by ACE. If I fail to return the ACE CPE or schedule retrieval within the time frame set forth in this Paragraph, I shall reimburse ACE, within ten (10) business days of the date of Bonded AceDSL® service termination, an amount equal to the ACE CPE Declared Value, without any deduction for depreciation, wear and tear, as set forth in Exhibit A.
Failure of ACE to remove the ACE CPE shall not be deemed as abandonment. I shall reimburse ACE all expenses, in excess of reasonable shipping and handling fees, incurred by ACE in the retrieval of the ACE CPE which I fail to return.
VIII. Service Warranty
I understand that in the event that my Bonded AceDSL® service is inoperable (as defined herein below), through no fault of my own, for a period of eight (8) hours but less than twenty four (24) hours, continuously or otherwise, I will receive a credit equal to one-thirtieth (1/30th) of applicable monthly rate described in Exhibit A.
I acknowledge that if my Bonded AceDSL® service is inoperable (as defined herein below), continuously or otherwise, through no fault of my own, for more than twenty four (24) hours, I will receive a credit in the amount equal to no greater than 25% of applicable monthly rate described in Exhibit A.
I understand that in no event should any credit accumulated during a course of one calendar month shall exceed 25% of the applicable monthly rate described in Exhibit A.
I also understand that if my Bonded AceDSL® service is not restored within 72 hours I have a right to terminate my annual agreement with ACE with regard to the service described in Exhibit A, without any penalty. I hereby acknowledge that in the event of such early termination, I am fully responsible for any charges incurred prior to termination date.
For the purposes of this Agreement, Bonded AceDSL® service shall be deemed inoperable only if the combined throughput of all the Dry Loop DSL Circuits comprising my Bonded AceDSL® services amounts to less than 75% of the total advertised bandwidth of the service plan presented in Exhibit A. For the purposes of this Agreement, throughput speed of all the Dry Loop DSL Circuits shall be determined only by obtaining the readings from the ACE CPE router (as defined herein above) installed at my service location.
I agree that any claim of inoperable service (as defined herein), must be made in writing via e-mail addressed to email@example.com within 24 hours of the service disruption.
IX. Representation and Warranties
Each party represents and warrants to the other party that: (i) such party has been duly organized and chartered under the laws of its respective jurisdiction and is validly existing under the laws of such jurisdiction; (ii) such party has the full right, power and authority to enter into this Agreement; (iii) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (iv) such party acknowledges that the other party makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in this Agreement.
Each party represents and warrants that it will maintain security measures and safeguard the confidentiality of all user information or data that may come into its possession or control, which security measures and safeguarding will be maintained and undertaken with at least the same level of care, quality and diligence as industry standard care applicable to the same or substantially similar data or information. Each party represents, warrants and covenants that it will not use any data in violation of any privacy or publicity rights.
XI. Termination of Services
I understand that ACE reserves the right to terminate my account at any time, for reasons including, but not limited to, my failure to abide by the terms of this Agreement or my failure to pay any fees or charges when due. In the event that my account is deactivated, I may be required to pay reconnect charges and a prepaid deposit in order to re-activate my account. I understand that any information stored on ACE's servers will be deleted upon deactivation. More detail of violations that constitute a likely cause of termination of my account can be found in Article II or this Agreement. ACE reserves the right to decline or refuse service to any potential customer for any or no reason, subject to applicable law.
XII. Law and Jurisdiction
I understand and agree that the laws of the State of New York alone shall govern the interpretation and enforcement of this Agreement and my ACE account. I expressly agree that exclusive jurisdiction for any claim or dispute with ACE or relating in any way to my account or my use of ACE's Services shall only be brought in the courts of the City, County and State of New York. I further agree and expressly consent to the exercise of personal jurisdiction in the courts of the State of New York in connection with any such dispute, including any claim involving ACE, its officers, directors, shareholders, employees, agents, subsidiaries and affiliates.
The Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without the prior written consent of ACE, which consent may be withheld for any or no reason. Any attempted assignment or transfer in violation of these provisions shall be voidable at the option of ACE. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective permitted successors and assigns.
XIV. Entire Agreement
This Agreement, including the Exhibits hereto, represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters covered by this Agreement. Each party acknowledges that it has not entered into this Agreement based on any representations other than those contained herein. This Agreement may only be amended or terminated by a written agreement signed by both parties. Notwithstanding the foregoing, ACE may make changes or modifications to this Agreement from time to time, which changes, I agree, shall become a part of this Agreement and shall be binding upon the parties provided that, if such change would materially increase any of my obligations or liabilities or would have a material adverse effect on my rights under this Agreement, such changes or modifications shall not become effective earlier than thirty (30) days after the date on which I am given notice of such change and the effective date thereof, and I will then be given the right to cancel this Agreement by giving notice of my election to do so on or before the specified effective date of such change or modification.
I agree that if I am given such notice and do not cancel this Agreement by timely giving notice thereof, then this Agreement shall continue in full force and effect, as so changed or modified.
If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
The waiver of any particular breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default, and no waiver shall be effective unless in writing and signed by the waiving party.
All notices required or permitted hereunder shall be given in writing addressed to the respective parties as set forth below and shall either be: (i) personally delivered by private courier, (ii) transmitted by nationally-recognized private express courier, or (iii) sent by certified mail to the respective address hereinafter designated, and shall be deemed to have been given on the date of receipt or in the case of a notice sent by mail pursuant to clause "(iii)", on the date that delivery is first attempted, and in any case, an additional copy shall be electronically mailed to the respective e-mail address hereinafter designated. Either party may change its address or e-mail address for purposes hereof by written notice to the other. The addresses for the parties are as follows:
ACE Innovative Networks, Inc.
277 Broadway, Suite 807
New York, NY 10007
The Address and E-mail Address set forth in Exhibit A.
The headings of the several sections of this Agreement are intended for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement. As used in this Agreement, the word "including" means "including but not limited to". In the event any terms or conditions in the Exhibit(s) attached hereto conflict with any terms or conditions in the main body of the Agreement, the terms and conditions in the main body of the Agreement will govern.
"AceDSL" and AceDSL logos are trademarks of ACE Innovative Networks, Inc. Any and all rights in and to such trademarks are expressly reserved, shall at all times remain the property of ACE Innovative Networks, Inc., and may not be used or reproduced without the prior express written permission of ACE Innovative Networks, Inc.