SERVICE TERMS AND CONDITIONS
1. EFFECTIVE DATE AND SERVICES. Acena (“the COMPANY”) has issued these Service Terms and Conditions (“Terms”) effective as of December 1, 2020 (“Effective Date”). The Company provides answering and call center related services (“Services”) to users of the Services (“Customer”).
2. ACCEPTANCE. By using the Services, Customer agrees to be unconditionally bound by these Terms as of the later of the Effective Date or the date on which Customer begins to receive Services from the Company and is provided notice by the Company of these Terms (“Customer Start Date”). These Terms will remain in effect at all times Customer receives Services from the Company. If Customer does not agree with any of these Terms, it may notify the Company immediately with a cancellation request in accordance with Section 4 so that its agreement with the Company may be terminated. If Customer does not provide the Company with a cancellation request but continues to use Services provided by the COMPANY after the later of the Effective Date or the Customer Start Date, Customer is deemed to have consented to these Terms.
The COMPANY may change these Terms at any time by giving 30 days’ notice to Customer. Customer’s continued use of the Services following notice of the changes will constitute acceptance of all changes.
In the event any portion of these Terms are found to be unenforceable, the remainder of these Terms shall remain in full force and effect and the otherwise unenforceable portion shall be amended so as to be enforceable to the greatest extent permitted by law.
3. CHARGES FOR SERVICES. Charges for Services are as agreed to between the COMPANY and Customer. Usage of Services is measured and billed in 30-second increments and call times are rounded up to the next 30-second increment, so that, for example, if a call is 110 seconds long, it will be billed as 120 seconds. For inbound calls, usage of Services is calculated starting from the time the receptionist receives the call and ending when a receptionist transfers the call through to someone, or to voicemail, or otherwise disconnects because the call is over, as well as any time a receptionist spends completing any information on a customers call after the caller has hung up. Customer is responsible for paying all charges and fees for Services provided by the COMPANY, in accordance with any payment terms set forth in its agreement with the COMPANY. The COMPANY reserves the right to change its charges or pricing plans or adjust pricing for Services or any components thereof in any manner and at any time with at least 30 days’ notice prior to any plan or price change. The Customer hereby agrees to pay all one-time and recurring usage charges as contracted including six (6) $15.00 annual holiday fees.
4. TERM & CANCELLATION. This agreement shall automatically extend on a month-to-month basis until the COMPANY receives a written cancellation request from the Customer, and after receipt of that notice, the Services will be cancelled as of the date the notice is received, unless a later date is requested by the Customer. The COMPANY reserves the right to terminate this agreement at any time with thirty (30) days written notice to the Customer. Service may be discontinued earlier and without any written notice if the COMPANY determines in its sole and absolute discretion, that continuation of service will adversely affect service to other customers, that Customers advertising is causing extreme fluctuations in call volume that adversely affects service to other customers, that Customer or its callers are abusive, disrespectful, or otherwise inappropriate to the COMPANY personnel, that Customer is in violation of any FCC rules, that a request from Customer or its callers constitutes or otherwise relates to fraudulent or otherwise illegal activity or to a sexual or otherwise potentially illicit encounter, the credit information furnished to the COMPANY by Customer is inaccurate or that Customer is otherwise in breach of these Terms. Customer authorizes the COMPANY to furnish any information the COMPANY has concerning Customer to law enforcement, collection and credit agencies. Customer consents to the COMPANY’s response to any subpoena, court order, or other court authorized request for information served upon it without necessity to contest the request on any grounds.
5. NO WARRANTIES. THE COMPANY MAKES NO REPRESENTATION OR WARRANTIES OF ANY KIND OR NATURE, EXPRESSED OR IMPLIED, AS TO ANY MATTER WHATSOEVER IN CONNECTION WITH THE SERVICES OR RELATING TO THE AVAILABILITY, QUALITY, RELIABILITY, SUITABILITY, TIMELINESS, TRUTH, ACCURACY OR COMPLETENESS OF THE SERVICES. THE CUSTOMER’S USE OF THE SERVICES IS AT ITS OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF THIRD-PARTY RIGHTS. THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL MEET ALL OF YOUR REQUIREMENTS OR THAT ITS OPERATIONS WILL BE UNINTERRUPTED OR ERROR FREE. NO ORAL OR WRITTEN INFORMATION, REPRESENTATION OR ADVICE GIVEN BY THE COMPANY OR ANY REPRESENTATIVE OF THE COMPANY SHALL CREATE A WARRANTY WITHOUT A WRITING SIGNED BY THE COMPANY REFLECTING THE CREATION OF THAT WARRANTY.
6. LIMITATION OF THE COMPANY’S LIABILITY. The obligations of THE COMPANY set forth herein are the sole remedy with respect to the provision of the Services. Notwithstanding any other provision of these Terms or any agreement between the COMPANY and Customer, except as provided in the next paragraph, in no event shall the COMPANY be liable for any direct, indirect, special, consequential or punitive damage or loss of business caused directly or indirectly by any failure, omission, error, delay or interruption, including but not limited to (1) the cell phone/’s or pager/s or any inadequacies thereof for any purpose, or (2) by the use or inability to use the Services or from the failure to take and transmit any message or from the failure to receive an accurate message or from the failure to receive any message at all, or (3) by the interruption or suspension or cancellation of Services or (4) failure to discontinue Services after Customer or the COMPANY cancels Services. The COMPANY is not responsible or liable for failure of telephone and satellite communications or wireless carriers which provide service links and other elements of the Services.
The COMPANY shall have no liability unless notice of a Customer’s claim is given to the COMPANY in writing within fourteen (14) days following the date of the problem. The COMPANY’S liability at all times shall be limited to a credit adjustment equal to the Customer’s pro-rated monthly service charge for the period during which the liability arose, to a maximum of fifteen (15) days or $500.00, whichever is less.
7. INDEMNITY OF THE COMPANY. Customer shall indemnify the COMPANY, its officers, directors, employees and agents from, and protect, defend and hold the COMPANY harmless against any loss, cost, damage or expense, including but not limited to attorney’s fees relating to or arising out of Customer’s use of any Services.
8. CREDIT CARD USE AND AUTHORIZATION. Customer shall maintain a valid payment method on file with the COMPANY. Customer expressly authorizes the COMPANY to charge any amount that Customer may owe for the Services including but not limited to outstanding monthly service fees. If Customer authorizes the use of the COMPANY’s Simplified Payment Plan (“SPP”), Customer is expressly authorizing the COMPANY to charge the payment method on file for the balance due on its account at the end of each month. Cancellation of SPP requires a written notice of cancellation request emailed to firstname.lastname@example.org, or written notice mailed to: ACENA. 1981 MARCUS AVENUE, SUITE C109, LAKE SUCCESS, NY 11042. Attention: Billing Department.
9. DEFAULT / NON PAYMENT / RECONNECT FEES. If Customer defaults in payment of any sum due the COMPANY or in the observance of any term hereof, and the COMPANY is unable to charge the payment method on file in accordance with Section 8, the COMPANY may without incurring any liability notify Customer either by telephone, in writing or transmitted message, that their Services will be temporarily discontinued. Customer shall pay the COMPANY all amounts hereunder, plus interest on delinquent amounts at the rate of 1.5% per month (or the maximum allowed by state law), plus late charges, collection agency and attorney fees and expenses, court costs, and other expenses incurred in recovering such sums owing. Acceptance by the COMPANY of any payment that is less than the sum due hereunder shall not constitute a release or an accord or satisfaction for any greater sum due, or to become due, regardless of any endorsement restriction. Customer agrees to pay a reconnect fee determined by the COMPANY at its discretion for reinstatement of a suspended account. All past amounts owing must be paid and current. The COMPANY reserves the right to refuse reinstatement of any suspended account.
10. NOTICES. Customer shall provide the COMPANY with valid contact information for communication by email, phone and US mail, and the COMPANY may use that contact information to communicate with Customer about the Services. Service announcements or administrative communications may be communicated by email, phone, US mail or other means. Any notice by US mail shall have been deemed given five (5) business days after the same is placed in the US mail postage prepaid, and addressed to the party at its address provided to the COMPANY.
11. SERVICE. Service is subject to transmission limitations caused by failures in third party telephone, satellite or wireless carriers which provide service links and other elements of the service, scheduled and emergency maintenance, atmospheric conditions and other uncontrollable interferences. Customer agrees and understands that the COMPANY is not required to notify them of any interruptions of any type, suspensions, curtailments or failures, and that the COMPANY has no liability for any damages or loss therefrom.
12. ACCESS NUMBERS. Customer has no property rights to any the COMPANY telephone, pager or ID number that THE COMPANY assigns to Customer. The COMPANY may assign, designate, or change such numbers when, in its sole discretion, it is reasonably necessary in the conduct of its business to do so, without liability to the Customer. Customer shall hold the COMPANY harmless and without liability should their telephone, pager or ID number/s no longer be available.
13. MONITORING AND RECORDING. When permitted by state law, Customer acknowledges and consents to telephone conversations into the COMPANY call center being monitored and recorded for training and quality purposes.
14. DISPUTE RESOLUTION/ARBITRATION. Any controversy or claim between Customer and the COMPANY arising out of or relating to: (a) these Terms, or the breach thereof, or (b) Customer’s access to or use of the Services, or (c) any alleged violation of any federal or state or local law, statute or ordinance (each such controversy or claim, a “Claim”), shall be resolved exclusively by a binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, with the arbitration to be held in the city of Chesapeake, Virginia. Customer hereby consent to the exclusive jurisdiction of the state and federal courts located in Chesapeake, Virginia (or, for federal courts, Norfolk, Virginia) to enforce these Terms. However, judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Claims shall be heard by a single arbitrator. Arbitrations shall be held in Chesapeake, Virginia, but the parties may choose for themselves whether to appear in person, by phone, or through the submission of documents. The arbitration shall be governed by the Federal Arbitration Act and by the internal laws of the Commonwealth of Virginia, without regard to conflicts of laws principles. The prevailing party shall be entitled to an award of reasonable attorneys’ fees.
In arbitration, the parties give up their right to have their Claim decided by a judge or jury, and their Claim is instead decided by an arbitrator. Discovery rights and appellate rights in arbitration are more limited than in court. The arbitrator shall issue a reasoned award in writing, including all findings of fact and law upon which the award was made.
CUSTOMER AND THE COMPANY AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING. UNLESS BOTH CUSTOMER AND THE COMPANY AGREE OTHERWISE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF A CLAIM IMPLICATES THIS SECTION, AND IF THIS SECTION IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL BY A COURT OF COMPETENT JURISDICTION, THEN SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
NOTWITHSTANDING THE FOREGOING, IF ANY CLAIM IS NOT SUBJECT TO ARBITRATION, CUSTOMER AGREES TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN THE CITY OF CHESAPEAKE, VIRGINIA (OR, FOR FEDERAL COURTS, NORFOLK, VIRGINIA), WHICH IS THE PLACE OF PERFORMANCE OF THESE TERMS.
15. CLASS ACTION WAIVER. CUSTOMER WAIVES ANY RIGHT TO COMMENCE OR PARTICIPATE IN ANY CLASS ACTION LAWSUIT AGAINST THE COMPANY RELATED TO ANY CLAIM, DISPUTE OR CONTROVERSY, AND, WHERE APPLICABLE, AGREES TO OPT OUT OF ANY CLASS PROCEEDING AGAINST THE COMPANY OTHERWISE COMMENCED ON OR AFTER THE EFFECTIVE DATE.