ONLINE TERMS OF SERVICE

 

THESE ONLINE TERMS OF SERVICE, including Orders and any applicable Attachments, or Exhibits, which by this reference are incorporated herein (“Agreement”), are a binding agreement between Accent Communication Services, Inc., an Ohio corporation with its primary office at 585 Sunbury Rd. Delaware, OH 43015, (“Accent”), and the legal entity identified in the Order (“Customer”). Accent and Customer may be individually referred to as a “Party” or collectively as the “Parties.”

 

Accent provides services and equipment intended solely for business use, pursuant to the terms and conditions set forth in this Agreement and on the condition that Customer accepts and complies with this Agreement. By signing this Agreement, Customer (a) accepts this Agreement and agrees that Customer is legally bound by its terms; and (b) represents and warrant that: (i) its representative is 18 years of age or of legal age to enter into a binding agreement; and (ii) has the right, power, and authority to enter into this Agreement on behalf of the corporation, governmental organization, or other legal entity, and to bind such organization to these terms. If Customer does not agree to the terms of this Agreement, neither Customer nor its End Users may not download, install, or use the services or equipment.

  1. DEFINITIONS

    1. Capitalized terms not defined have the meaning given to them in Exhibit D.

  2. AGREEMENT DESCRIPTION

    1. AGREEMENT SCOPE:  Pursuant to this Agreement, Customer shall purchase and Accent shall provide business communication services to Customer consisting of any and all products and services purchased by Customer pursuant to a Customer submitted and Accent accepted Order. This Agreement applies to and will be considered a part of any Order provided by Accent and agreed upon in writing by Customer.  Accent agrees to furnish the Service at the location(s), quantities, and rates as specified in the Order(s) to be established throughout this Agreement.  Customer understands and agrees that products and services provided by Accent are governed by the rules and conditions detailed within this Agreement and its associated Exhibits.  Accent shall have no obligation to accept a Order.  This Agreement does not cover the Customer’s wide area computer network (“WAN”), local area computer network (“LAN”), the wireless local area network (“WLAN”), computers/laptops, tablets or mobile voice handsets and other end devices, or any components on the Customer side of the Services provided.

    2. SERVICE DESCRIPTION:  Accent provides business communication services, telecommunication services, internet services, and managed network services which include but are not limited to business voice, e-fax, text messaging, call handling, mobile and desktop applications, and BYOD capability.  Exhibit A of this Agreement provides a detailed description of available services, service rules and conditions, and major service components.

  3. SERVICE ORDERING AND TERM

    1. SERVICE ORDERING:  Customer may order Services by executing an Order in the format provided by Accent and submitting electronically via Accent’s website or for subsequent Orders, via e-mail or to an Accent authorized representative. The Order will identify the Services requested by Customer together with: (i) the price for each Service; (ii) quantities for each Service; (iii) and products leased, rented, licensed or sold to Customer, if any. An Order will become binding when it is executed by the Customer and accepted by Accent. Accent may accept an Order by commencing performance of the requested Services. The Services will begin upon delivery of Services by Accent to Customer.

    2. SERVICE TERM AND AUTOMATIC RENEWAL:  The Service Term will begin upon delivery of the Services by Accent to Customer and upon Customer’s use of the Services provided and continue for the initial term set forth in the initial Order (“Initial Term”). Upon expiration of the Initial Term, recurring Services will automatically renew for successive periods of the same length as the Initial Term (each a “Renewal Term”) unless the Customer gives notice of non-renewal at least thirty (30) days before the expiration of the Initial Term or the then-current Renewal Term. Unless otherwise agreed upon, the term of any recurring Services added to the Customer Account after the initial Order is submitted will start upon delivery of the Services, will run co-terminus with the then-current Service Term of any pre-existing Services, and will be billed on the same billing cycles as the pre-existing Services.

    3. SERVICE SUBTRACTIONS OR REDUCTIONS:  Customer may only subtract or reduce Services once the then current Service Term has completed and prior to the Renewal Term.  Customer must provide written notice of Service reductions thirty (30) days in advance of the Renewal Term for reduction in Services to take effect.  Upon a change in Service quantities, the changes will be reflected on the next monthly invoice on a pro-rated basis. 

    4. SERVICE CHANGES:  Customer may request changes to the Service telephone numbers and/or Service address locations identified on the Order provided Customer and Accent execute a supplemental Order covering such changes. 

  4. INVOICING AND PAYMENT

    1. SERVICE BILLING AND PAYMENT:  Upon delivery of Services by Accent to Customer, the service charge will be billed on a monthly basis in advance of the Services provided.  Applicable sales taxes, regulatory fees, and tariffs will be added to Service invoices as appropriate.  Customer agrees to pay in full the monthly invoiced amount including any regulatory fees, tariffs, and/or taxes which are applicable under local, state, or federal regulatory law. All Services and equipment must be purchased via valid credit or debit card at the time of purchase. By providing a valid credit or debit card, Customer is expressly authorizing all Services and equipment charges and fees to be charged to such payment card, including recurring payments billed on a monthly or annual basis. In addition, Customer’s provided credit card shall be used for any in-month purchases of additional services and products, or where Customer has exceeded usage or threshold limits, any overage charges. Recurring charges are billed to the credit or debit card associated with your Account monthly in advance for those Services and equipment in the following month. Credit and debit card payments are subject to the approval of the card issuer, and Accent will not be liable in any way if a card issuer refuses to accept a credit or debit card for any reason. Customer is responsible for any credit card chargeback or similar fees for refused or rejected payments that Accent is entitled to charge under this Agreement. If the payment card associated with Customer’s Account is declined or fails for any reason, Accent will send Customer a notice using the contact information associated with Customer’s Account. Accent may continue to attempt charging Customer’s payment card for outstanding charges and additional fees along with any other rights and remedies available to Accent under this Agreement, at law or in equity.  A 2% convenience fee will be added to all credit and debit card transactions.

    2. TAXES:  All rates, fees, and charges are exclusive of applicable Taxes, for which Customer is solely responsible. Taxes may vary based on jurisdiction and the Services provided. Taxes, access fees, universal service or other recovery fees, or similar charges will be adjusted on the date in which those increases become effective as mandated by competent authority. If any withholding tax is levied on the payments, then Customer must increase the sums paid to Accent so that the amount received by Accent after the withholding tax is deducted is the full amount Accent would have received if no withholding or deduction had been made.

    3. DELINQUENT PAYMENT:  If, for any reason, Customer’s account becomes more than thirty days past due, Accent shall reserve the right to add a late payment fee to the Customer’s monthly Service invoice. The late payment fee shall be calculated as two percent (2%) of the outstanding account balance at the time Customer’s account becomes considered past due.

    4. SERVICE SUSPENSION:  If, for any reason, Customer’s account becomes more than sixty (60) days past due, Accent reserves the right to suspend the Service.  Service may resume once Customer’s outstanding account balance and any late payment fees are paid in full and Customer’s account is in good standing.  Accent reserves the right to permanently cancel the Service after account becomes more than ninety days past due.  Customer will be notified of account status and potential Service suspension or cancellation in writing via electronic mail no later than five (5) business days prior to suspension or cancellation.  Upon Service suspension or cancellation, Accent shall be under no obligation to release or permit the porting of Customer telephone numbers until Customer’s outstanding account balance is paid in full and the provisions set forth in Section 2.8 are fully satisfied.

    5. BILLING DISPUTES:  If Customer reasonably and in good faith disputes any portion of Accent’s charges, it must provide written notice to Accent within thirty (30) days of the billing date, identifying the reason for the dispute and the amount being disputed. Customer’s dispute as to any portion of the billing statement will not excuse Customer’s obligation to timely pay the undisputed portion of the billing statement. Upon resolution, Customer must pay any unpaid amounts within thirty (30) days. Any amounts that are found to be in error resulting in an overpayment by the Customer will be applied as a billing credit against future charges.

  5. CANCELLATION

    1. EARLY CANCELLATION:  Customer may cancel Services prior to the Service Term completion via providing written notice of early cancellation thirty (30) days prior to the desired early cancellation date and providing Accent one lump sum payment of one hundred percent (100%) of the remaining value of the Services to be provided.  The remaining value of the Services shall be calculated as the monthly service price multiplied by the number of months remaining in the Service Term upon the date notification of early cancellation is received by Accent. Payment for early cancellation must be received in full prior to Services cancellation and release of Customer telephone numbers for porting. Upon Customer request for early cancellation of Service, Accent shall be under no obligation to release or permit the porting of Customer telephone numbers or to cancel the Services until Customer fully satisfies the terms of early cancellation set forth herein.

    2. RENEWAL CANCELLATION:  Customer may cancel the automatic renewal of Services via providing written notice of cancellation thirty (30) days prior to the then current Service Term completion and Renewal Term date.  Upon cancellation of Service, Accent will discontinue the Services and any Accent owned resources installed in Customer’s offices shall be removed by Accent personnel.  Upon Customer request for renewal cancellation, Accent shall be under no obligation to release or permit the porting of Customer telephone numbers until Customer’s account balance is paid in full and Customer’s account is in good standing.

  6. 911 AND E-911 SERVICES

    1. LIMITATIONS:  The Service includes a 911 and/or enhanced 911 (“E-911”) function which may differ from the 911/E-911 function offered by other telecommunications providers. As such, it may have certain limitations. Customer acknowledges and accepts any limitations of 911/E-911.

    2. CORRECT ADDRESS:  In order for Customer’s 911/E-911 calls to be properly directed to emergency services, Accent must have Customer’s correct service location address. If Customer moves all or a portion of the Service to a different service location address without prior notice or approval from Accent, Customer’s 911/E-911 calls may be directed to the wrong emergency services authority, may transmit the wrong service location address, and/or fail altogether. Accordingly, Customer must contact Accent at least thirty (30) business days prior to moving all or any portion of the Service to a different service location address. Customer must receive approval from Accent to move the Service to a difference service location address. Failure to notify Accent of any changes in address will result in Accent reserving the right to bill Customer a one-time fee of $150.00 for each 911/E-911 call.

    3. POWER OUTAGES:  Customer understands and acknowledges that the Service uses electrical power at the Customer’s service location. If there is an electrical outage, 911/E-911 calling may be interrupted if there is no battery back-up installed, fails, or is exhausted. Further, 911/E-911 calls may not be completed if there is a problem with network facilities, including network congestions, problems caused by power outages, or another technical problem.

    4. 911/E-911 INDEMNIFICATION:  Customer acknowledges and agrees that neither Accent nor its associated parties shall be liable for any Service outage, inability to dial 911 using the Service, and/or inability to access emergency services. Customer agrees to defend, indemnify and hold harmless Accent and its associated parties from any and all claims, losses, damages, fines, penalties, costs, and expenses by, or on behalf of, Customer or any third party, or user of the service relating to the failure or outage of the service, including those related to 911/E-911.

  7. USE OF THE SERVICE

    1. SERVICE REQUIREMENTS:  The Services are dependent upon Customer’s maintenance of sufficient Internet access, networks, and power as set forth in Exhibit C - Technical Sufficiency Criteria.  Accent will not be responsible for any deficiencies in the provision of the Services if Customer’s network does not meet Accent’s Technical Sufficiency Criteria.

    2. USE POLICY:  Customer and its End Users may use the Services only in compliance with this Agreement, applicable Law, and the Use Policies referenced below, which are incorporated into and form part of this Agreement. Customer may not use, or permit the use of the Services, to interfere with the use of Accent’s service by others or with the operation of the Accent Network. Customer may not resell the Services. Customer must ensure that its End Users comply with the Use Policies. Any breach of the Use Policies will be deemed a material breach of this Agreement.  Accent may update the Use Policies from time to time, and will provide notice to Customer at the email address on file with the Account. Such updates will become effective thirty (30) days after such notice to Customer.

    3. ACCEPTABLE USE POLICY: The Services must be used in accordance with Accent’s Acceptable Use Policy, available at http://www.accentvoice.com/acceptable-use-policy.  Notwithstanding anything to the contrary in this Agreement, Accent may act immediately and without notice to suspend or limit the Services if Accent reasonably suspects fraudulent or illegal activity in the Customer’s Account, material breach of the Acceptable Use Policy, or use of the Services that could interfere with the functioning of the Accent Network provided such suspension or limitation may only be to the extent reasonably necessary to protect against the applicable condition, activity, or use. Accent will promptly remove the suspension or limitation as soon as the condition, activity or use is resolved and mitigated in full. If Customer anticipates legitimate but unusual activity on its Account, Customer should contact Accent Support in advance to avoid any Service disruption.

    4. FRAUDULENT USE OF SERVICE:  Customer is responsible for all charges attributable to Customer incurred respecting Service, even if incurred as the result of fraudulent or unauthorized use of Service by a representative, employee, contractor, agent, and Customer’s End User or by any third party. Service is available for lawful use only. Notwithstanding any other provision hereof, Accent may discontinue Service in the event that it determines, in its sole reasonable discretion, that Service is being used for any fraudulent, unauthorized or unlawful purpose or that Customer’s use thereof is interfering with any other person.

    5. CONTENTS OF COMMUNICATIONS:  Accent shall have no liability or responsibility for the content of any communications transmitted via the Service, or for Customer’s use thereof.  Customer shall defend, indemnify and hold Accent harmless from any and all claims (including claims by governmental entities seeking to impose penal sanctions) relating to Customer's use of Service.  Customer agrees that it shall make no claim whatsoever against Accent relating to the content of the communications or respecting any information, product, service or software ordered through or provided by virtue of the Service.  Only if and to the extent required by law or government regulation shall Accent regulate the contents of any communications over the Service.

  8. INTELLECTUAL PROPERTY

    1. LIMITED LICENSE:  Subject to, and conditional upon Customer’s compliance with, the terms of this Agreement, Accent grants to Customer and its End User, a limited, personal, revocable, non-exclusive, non-transferable (other than as permitted under this Agreement), non-sublicensable license to use any software provided or made available by Accent to the Customer as part of the Services to the extent reasonably required to use the Services as permitted by this Agreement, only for the duration that Customer is entitled to use the Services and subject to the Customer being current on its payment obligations.

    2. ACCENT’S RIGHTS:  Except as expressly provided in this Agreement, the limited license granted to Customer under Section 8.1 does not convey any ownership or other rights or licenses, express or implied, in the Services, any related materials, or in any Intellectual Property and no IP Rights or other rights or licenses are granted, transferred, or assigned to Customer, any End User, or any other party by implication, estoppel, or otherwise. All rights not expressly granted herein are reserved and retained by Accent and its licensors. The Software and Services may comprise or incorporate services, software, technology or products developed or provided by third parties, including open source software or code. Customer acknowledges that misuse of Accent’s Services may violate third-party IP Rights.

    3. CUSTOMER’S RIGHTS:  As between Accent and Customer, Customer retains title to all IP Rights that are owned by the Customer or its suppliers. To the extent reasonably required or desirable for the provision of the Services, Customer grants to Accent a limited, personal, non-exclusive, royalty-free, license to use Customer’s IP Rights in the same. Customer must provide (and is solely responsible for providing) all required notices and obtaining all licenses, consents, authorizations or other approvals related to the use, reproduction, transmission, or receipt of any Customer Content that includes personal or Confidential Information or incorporates any third-party IP rights.

  9. LIMITATION OF LIABILITY

    1. EXCLUDED DAMAGES:  TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR (1) INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, REPUTATIONAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND; (2) COSTS OF PROCUREMENT, COVER, OR SUBSTITUTE GOODS OR SERVICES; (3) LOSS OF USE, LOSS OR CORRUPTION OF DATA; OR (4) LOSS OF BUSINESS OPPORTUNITIES, PROFITS, GOODWILL, OR SAVINGS, WHETHER IN ANY OF THE FOREGOING, ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. NEITHER PARTY WILL BE LIABLE FOR ACTIONS REASONABLY TAKEN TO COMPLY WITH LAW.

    2. DIRECT DAMAGES:  EXCEPT AS SET FORTH HEREIN, THE TOTAL CUMULATIVE LIABILITY OF THE PARTIES UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE PREVIOUS SIX (6) MONTHS. LIMITATIONS UNDER THIS SECTION 9.2 WILL NOT APPLY TO: I) CUSTOMER PAYMENT OBLIGATIONS; II) EITHER PARTY’S LIABILITY FOR INFRINGEMENT OF THE OTHER PARTY’S IP RIGHTS; III) EITHER PARTY’S LIABILITY RESULTING FROM GROSS NEGLIGENCE, FRAUD, OR WILLFUL OR CRIMINAL MISCONDUCT; OR IV) CUSTOMER’S LIABILITY RESULTING FROM USE OF THE SERVICES IN BREACH OF THE ACCEPTABLE USE POLICY OR SECTION 6 OF THIS AGREEMENT.

    3. SURVIVAL:  The limitations of liability contained in this Section 9 will survive termination or expiration of this Agreement and apply in any and all circumstances (except as expressly set forth above), including without limitation in the event of any failure of the essential purpose of any limited warranty or available remedy provided herein.

  10. INDEMNIFICATION

    1. INDEMNIFICATION OBLIGATION:  Customer agrees to indemnify and defend Accent and its Affiliates at Customer’s expense, from and against any and all third-party claims, arising out of or in connection with: i) material violation of applicable Law by the Customer or its End Users in connection with the use of the Services; ii) use of the Services in a manner not authorized by this Agreement; iii) failure to promptly install any updates of any software or firmware or accept or use modified or replacement items provided by or on behalf of Accent, or iv) claims relating to Customer Content. Further, Customer will indemnify and hold harmless Accent against all damages, costs, and legal fees finally awarded against Accent by a court of competent jurisdiction in connection with such third-party claim, or agreed to in a written settlement agreement approved in writing by the Customer. 

    2. DEFENSE AND INDEMNIFICATION PROCEDURE:  Any Party seeking defense or indemnification (the “Indemnified Party”) must provide the Party from which it seeks such indemnification or defense (the “Indemnifying Party”) with the following: (a) prompt written notice of the third-party claim, (b) sole control over the defense and settlement of the third-party claim, and (c) reasonable information, cooperation, and assistance in connection with the defense and settlement of the third-party claim. The Indemnified Party’s failure to comply with the foregoing obligations will not relieve the Indemnifying Party of its defense or indemnification obligations under this Section (Indemnification), except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party will have the right to participate at its own expense in the defense of such third-party claim, including any related settlement negotiations. No such claim may be settled or compromised by the Indemnifying Party without the Indemnified Party’s express written consent (which such consent may not be unreasonably withheld, conditioned, or delayed), unless such settlement or compromise includes a full and complete release of all claims and actions against the Indemnified Party by each party bringing such third-party claim.

  11. WARRANTIES

    1. ACCENT WARRANTY:  Accent will provide the Services using a commercially reasonable level of skill and care, in material compliance with all applicable Laws and otherwise subject to the terms of this Agreement. To the extent permitted by Law, Accent shall pass through to Customer any and all warranties Accent receives in connection with equipment provided to Customer.

    2. CUSTOMER WARRANTY:  Customer’s and its End Users’ use of the Services must at all times comply with all applicable Laws and this Agreement.

    3. DISCLAIMER OF WARRANTY:  EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND ACCENT MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. TO THE EXTENT THAT ACCENT CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

  12. ACCENT OBLIGATIONS

    1. SERVICE DESIGN OBLIGATIONS:    Accent will provide a design of the overall Service based on the Order and Customer’s Service requirements with agreement on Service design, Service delivery, Service configuration, call routing and delivery, user roles and privileges, point of Customer demarcation, and hardware placement if necessary.

    2. STANDARD BUSINESS HOURS PROFESSIONAL SERVICES AND SUPPORT:  The professional services and support to be performed by Accent during Standard Business Hours include

      1. Management, administration, and maintenance of Service.

      2. Moves, adds, and changes (collectively, “MAC”) to Service required by Customer.

      3. Troubleshooting, diagnosis, and problem resolution of Service specific issues which are not the result of a service outage.

    3. EMERGENCY BUSINESS HOURS PROFESSIONAL SERVICES:  The professional services to be performed by Accent during Emergency Business Hours include:

      1. Troubleshooting and support for Service outages which are the direct result of errors or failures within the Accent Network.

    4. SUPPORT FOR SYSTEMS NOT INCLUDED IN THIS AGREEMENT:  Accent will not under this Agreement be held responsible for professional services including but not limited to management, maintenance, troubleshooting, or support of Customer systems or services not included in this Agreement or any Order(s).  Any professional services provided by Accent for systems or services which are not provided as part of the Service will be billed outside of this Agreement.

    5. TERMINATION OF THIRD-PARTY SERVICES AND SYSTEMS:  Accent will not under this Agreement be held responsible for the termination and/or disconnection of any third-party services or systems.  Disconnection and termination of all third-party services and systems shall be the sole responsibility of the Customer.

  13. CUSTOMER OBLIGATIONS

    1. PUBLICITY AND LOGO USAGE:  Customer grants to Accent at Accent’s discretion: the ability to (a) identify the Customer as a Customer of Accent, (b) hyperlink from an appropriate area within Accent’s web site to the Customer’s home page; and (c) display the Customer’s logo on the Accent web site (in accordance with the Customer’s guidelines) for the use of such mark.

    2. HARDWARE DAMAGE:  Damage or defects to Accent owned hardware provided by Accent and located at Customer owned or operated facilities which are a result of Customer personnel misuse or abuse, user error, power fluctuations due to unstable operating conditions, lightning damage, water damage, “Acts of Nature”, and “Acts of God” (collectively “Hardware Damage”) shall be the financial responsibility of Customer.

    3. TECHNICAL REQUIREMENTS:  Customer shall be required to comply with the terms set forth in Exhibit C – Technical Sufficiency Criteria in order to ensure proper Service delivery and function.

  14. MISCELLANEOUS

    1. AUTHORITY TO BIND:  Each party represents to the other that it has full organizational power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby.  The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary organizational action.

    2. REGULATORY AND LEGAL CHANGES:  In the event of any condemnation or exercise of the right of eminent domain, change in applicable law, regulation, decision, rule or order that materially increases or decreases the costs or other terms of delivery of Service, as determined by Accent, Accent and Customer will negotiate in good faith to assure the rates to be charged to Customer reflect such increase or decrease in cost.  In the event the parties are unable to reach agreement respecting new rates within thirty days after Accent’s delivery of a change of law written notice, then (a) Accent may pass such increased or decreased costs through to Customer, and (b) Customer may terminate the affected Agreement without termination liability by delivering written notice of termination no later than thirty (30) days after the effective date of the rate increase.

    3. FORCE MAJEURE:  Neither party is liable for any failure of performance nor shall any credit allowance or other remedy be extended, for any failure of performance due to any cause or causes beyond such party’s reasonable control, including without limitation, acts of God, fire, explosion, vandalism, cable cut, adverse weather conditions, war, revolution, civil commotion, acts of public enemies, terrorism or national emergency, governmental action or inaction (such acts including without limitation any regulatory or administrative decisions making said performance or obligation economically or technically unfeasible); labor difficulties, failure of any third party (including any other carrier or supplier) to provide services, facilities or equipment required for such performance or obligation (or any other act or omission by said third party). Either party’s invocation of this clause shall not relieve Customer of its obligation to pay for any Services actually provided to the Customer.  In the event Accent is unable to deliver Service for seven consecutive days as a result of any force majeure events, Customer shall not be obligated to pay Accent for the affected Service for so long as Accent is unable to deliver; provided, however, that the Service Term of such Service shall be extended for the period of time that the force majeure event continues.

    4. AGREEMENT AMENDMENT:  This Agreement may be amended only if agreed upon in writing and signed by both Customer and Accent.  Neither Customer nor Accent have any formal obligation to amend this Agreement once signed and accepted. 

    5. ENTIRE AGREEMENT:  This Agreement and any Exhibits or Schedules attached hereto or to be attached hereto, constitute the entire agreement between the parties hereto with respect to the subject matter hereof and supersede any and all prior negotiations, understandings, and agreements with respect hereto, whether oral or written.

    6. DISPUTE LIMITATIONS:  Except for actions for non-payment or liability arising from Section 10, no claim, suit, action or proceeding relating to this Agreement may be brought by either Party more than two (2) years after the cause of action has accrued. Any actions, lawsuits, or proceedings must be conducted solely on an individual basis and the Parties expressly waive any right to bring any action, lawsuit or proceeding as a class or collective action, private attorney general action or in any other capacity acting in a representative capacity.

    7. SURVIVAL:  The rights and obligations of either Party that by their nature would continue beyond the expiration or termination of this Agreement or a Order will survive expiration or termination of this Agreement or the Order, including without limitation payment obligations, warranty disclaimers, indemnities, limitations of liability, definitions and miscellaneous.

    8. GOVERNING LAW AND BINDING EFFECT:   This Agreement shall be construed and enforced in accordance with, and the validity and performances hereof shall be governed by the laws of the State of Ohio. The exclusive venue for all cases or disputes related to or arising out of this agreement shall be the state and federal courts in Delaware County, Ohio. This Agreement shall bind and inure to the benefit of each of the Parties and their successors and permitted assigns.

Exhibit A – Product/Service Rules and Conditions

CloudSIP

A Voice over Internet Protocol (“VoIP”) telecommunications service which is designed to deliver business telecommunications service via the Internet.  Accent’s CloudSIP service utilizes the Accent Network and the public Internet to deliver communications services to the Customer.  The Accent Network, and any other services provided shall be operated and maintained at the sole discretion of Accent and within the physical location or locations of Accent’s choosing.  Accent shall not be obligated under this or any other Agreement to allow Customer access to the Accent Network operations or the operations of Accent’s partners via either physical or virtual means. Throughout the term of this Agreement and upon Agreement cancellation, termination, or expiration, Accent shall retain sole ownership of all Accent Network infrastructure including but not limited to all hardware and software related to Service delivery, Service operations, and Accent Network operations.

    

Cloud Number Forward

Any telephone number ported to the Accent Network which is permanently forwarded to a telephone number which does not reside within the Accent Network will be subject to a Cloud Number Forward charge of $10.00 per month per telephone number.  A telephone number will be considered permanently forwarded if the number is forwarded for more than thirty (30) days or the Customer’s stated intention is for the telephone number to remain forwarded indefinitely. 

 

Concurrent Call Path (“CCP”)

CCP’s provide inbound and outbound calling capacity for VoiceONE Cloud and CloudSIP customers.  VoiceONE Cloud customers receive one CCP per cloud user license.  CloudSIP customers receive CCP’s specific to the delivery configuration of their service. All CCP’s are subject to Accent’s Fair Use Policy detailed in Exhibit B.  CCP’s cannot be used with automatic outbound dialing systems, call distribution systems, fax machines, security systems, or for dial-up Internet access. International call capability is enabled by Customer request assuming all responsibility for paying usage charges for International calls made regardless if Customer equipment was compromised by a 3rd party. Fax and/or modem dialing device usage is not allowed or supported. The G.711 codecs are available.

 

Equipment Rental & Fees

Equipment fees are required for VoiceONE Onsite and/or CloudSIP services.  Customer is required to provide a surge suppressed 110VAC electrical power source for each piece of equipment provided by Accent and an environment suitable for computer equipment to operate safely. A UPS protected power source and connection to the building's electrical ground is recommended. Accent must be notified if the physical address of the equipment changes. Customer must provide physical access to the equipment with a 72-hour notice from Accent.  Customer is financially responsible for the full manufacturer's retail price if the equipment unit is not returned at the end of rental period and agrees not to make alternations of any kind to the equipment. Accent or its partners of choosing will manage and monitor the equipment using its Service monitoring systems during the Term of this Agreement.

 

Toll-Free Number (8XX)

A Toll-Free Number enables inbound calls made to a toll free (8XX) number to terminate on a CCP for a per-minute usage-based fee. The per-minute usage rate is listed on the Customer’s Service Quote. Toll Free Numbers are only allowed to terminate to a CCP. The Toll-Free Number may be either ported from an existing carrier or a new assignment. Separate order processing charges may apply for ported numbers. Accent or an organization of its choosing shall be the RESPORG for all numbers. Call detail records are available upon request. Separate order processing charges may apply for ported numbers. New custom telephone number assignments are not available.

 

VoiceONE Cloud

Accent’s VoiceONE Cloud service utilizes the Accent Network and the public Internet to deliver communications services to the Customer.  The VoiceONE Cloud, Accent Network, and any other services provided shall be operated and maintained at the sole discretion of Accent and within the physical location or locations of Accent’s choosing.  Accent shall not be obligated under this or any other Agreement to allow Customer access to Accent’s VoiceONE Cloud operations or the operations of the Accent Network via either physical or virtual means. Throughout the term of this Agreement and upon Agreement cancellation, termination, or expiration, Accent shall retain sole ownership of all VoiceONE Cloud service infrastructure and the Accent Network including but not limited to all hardware and software related to Service delivery, VoiceONE Cloud operations, and Accent Network operations.    

 

VoiceONE Onsite

Accent’s VoiceONE Onsite service and all hardware/software provided via the Service shall be owned, operated, and managed by Accent.  VoiceONE Onsite and all services provided shall be operated and maintained at the sole discretion of Accent and within the Customer’s physical location or locations.  Accent shall not be obligated under this or any other Agreement to allow Customer access to Accent’s VoiceONE Onsite platform, hardware, or software via either physical or virtual means. Throughout the term of this Agreement and upon Agreement cancellation, termination, or expiration, Accent shall retain sole ownership of all Service and VoiceONE Onsite infrastructure including but not limited to all hardware and software related to Service delivery and VoiceONE Onsite operations.    

 

Voice Quality & Call Quality

Accent is committed to delivering a level of quality of the user experience which is consistent with common expectations of business-grade VoIP service.  Customer acknowledges assessment of voice quality is subjective and difficult to measure, and depends on a variety of technical and environmental factors.  These factors include but are not limited to Internet Service Provider (ISP) reliability, ISP latency, ISP jitter, ISP network loss, and Customer local network performance including Customer owned/provided network equipment.  Customer further acknowledges these factors and others related to delivering VoIP service are outside of the scope of Accent’s control and Accent shall not be held responsible for voice/call quality degradation which is a result of these stated items or other items outside of Accent’s control.  Voice and call quality for all Accent services is subject to the criteria set forth in Exhibit C of this Agreement.

 

Voicemail Transcription (VText)

VText is an available service which transcribes voice messages received to a user’s voicemail account and delivers the transcription of the voicemail message along with a copy of the audio file to the user via email.  Transcription of voicemail messages is performed via machine transcription technology by default unless Customer enrolls in the Human Assisted upgrade option.  Machine transcription accounts have a limit of 400 message transcriptions per user per month with a maximum message transcription length of three minutes per message.  Human assisted transcription accounts have a limit of 100 message transcriptions per user per month with a maximum message transcription length of one minute per message.  HIPAA compliant transcription upgrade options are available.    

 

Customer understands machine transcription is a best effort service and accuracy has many dependencies, including, but not limited to, audio quality, audio codec, audio compression rate, speaker speed, speaker accent and environmental noise. Under acceptable acoustic and speaker conditions, Accent provides a machine transcription accuracy target of 70% and a human assisted transcription target of 95%.  Failure by Accent to deliver these transcription accuracy targets will not constitute a basis for any refund of service fees or cancellation of services.   

Exhibit B – Fair Use Policy

 

“Unlimited” calling plans are subject to a fair usage limit of 3,000 minutes per user per month. As an example, a Customer with 20 total users would be subject to a total Fair Usage amount of 60,000 minutes per month.  Once this limit is met, the normal published per-minute Accent calling rates will apply for any additional minutes used, this rate is generally $.02 per minute.

 

Forwarded Calls/Find-Me/Follow-Me Calls:  Minutes consumed during a Forwarded Call or Find-Me/Follow-Me Call will consume twice as many minutes as you are talking on the phone. This is due to there being two legs of the call you are responsible for (the call to your landline or mobile phone and the call connecting the other party).

 

Conference Calls:  Minutes consumed during a Conference Call will be calculated by multiplying the number of parties on the call by the number of minutes of the call.

 

“Unlimited” SMS text messaging plans are intended for person-to-person text messaging only and are not intended for large one-to-many or man-to-many group distribution or mass campaign distributions. Accent may, at its sole discretion, limit SMS text messaging services if it identifies Customer’s use of this service violates this Fair Use Policy.

 

“Unlimited” E-Fax plans are intended for individual one-to-one faxing only and are not intended for large one-to-many or many-to-many group fax distribution or mass faxing campaign distributions. Accent may, at its sole discretion, limit E-Fax services if it identifies Customer’s use of this service violates this Fair Use Policy.

 

Accent reserves the right to change this Fair Use Policy at any time. Changes shall become effective within thirty days of publication of the revised version on http://www.accentvoice.com/fair-use-policy. Your continued use of your Services and calling plan after expiry of the 30-day period shall constitute your acceptance to be bound by the terms and conditions of the revised Fair Use Policy.

 

Exhibit C – Technical Sufficiency Criteria

 

Use of Accent’s products and services (collectively, “Services”) is dependent on meeting these Technical Sufficiency Criteria. These Technical Sufficiency Criteria are incorporated into and made a part of the applicable Service Agreement.

 

INTERNET SERVICES

The Services require a properly-configured, high performance, enterprise-grade broadband IP network and connection. Use of the Services with any network, services, or connection not compatible with the Services may result in partial or complete unavailability, interruption, or underperformance of the Services or other services utilizing the same network, services, or connection. Likewise, 2G, 3G, or LTE networks are not recommended for use with the Services. Customer will provide and maintain, at its own cost, an IP network, services, and connection meeting the foregoing standard and all equipment necessary for the Services to connect to and use such network, services, and connection.

 

Accent will not under any circumstances provide support for Internet Service or be held responsible for Services quality issues, call quality issues, or voice quality issues as a result of Internet Service provided to Customer via third party Internet Service Providers (“ISP”).  Services outages, interruptions, errors, and call quality impairments which are a result of ISP service issues, errors, or service interruptions are the sole responsibility of Customer.  Upon a Services outage or Services error as a result of an ISP outage or Internet Service degradation, Accent will verify Accent Services are operational and inform Customer of the then-current operational status.

 

In the event Customer Internet Service is not adequate enough to ensure reasonable and reliable Services delivery, Customer shall be responsible for any required upgrades or modifications to the Customer’s Internet Services including any costs which Customer incurs associated with these requirements.

 

LOCAL AND WIDE AREA NETWORK

The Services may require configuration of Customer-owned wide area network (“WAN”) and local area network (“LAN”) equipment to ensure proper and reliable delivery of Services.  Customer LAN equipment must be capable of providing Ethernet based access and power to Customer VoIP telephones and endpoints.  Customer physical cabling infrastructure of Category 5 or better and capable of supporting local VoIP communication where all VoIP phones are required must be provided by Customer.

 

Accent will not under any circumstances provide support for Customer LAN and WAN functionality or be held responsible for Services quality issues, call quality issues, or voice quality issues as a result of LAN or WAN based issues or errors.  Services outages, interruptions, errors, and call quality impairments which are a result of LAN or WAN issues, errors, or interruptions are the sole responsibility of Customer.  Upon a Services outage or Services error as a result of a LAN or WAN based outage, Accent will verify Accent Services are operational and inform Customer of the then-current Accent Services operational status.

 

Third-party professional services which may be required and any costs Customer incurs via Customer’s Support Personnel, hardware upgrade expenses, or third-parties to comply with the standards and requirements set forth herein shall be the sole responsibility of the Customer. 

 

Exhibit D – Definitions

 

  1. “Accent Network” means the network and supporting facilities between and among the Accent points of presence (“PoP(s)”), up to and including the interconnection point between the Accent network and facilities, and the public Internet, private IP networks, and the Public Switched Telephone Network (PSTN). The Accent Network does not include the public Internet, a Customer’s own private network, or the PSTN.

  2. “Account” means the numbered account established with Accent and associated with Customer and the Services provided to Customer under this Agreement. For billing and convenience purposes, multiple services or End Users may be included in a single billing account, and/or a single Customer may have multiple billing accounts encompassing different geographic locations, business units, or other designations as requested by Customer and accepted by Accent.

  3. “Affiliate(s)” means a person or entity that is controlled by a Party hereto, controls a Party hereto, or is under common control with a Party hereto, and “control” means beneficial ownership of great than fifty percent (50%) of an entity’s then-outstanding voting securities or ownership interests.

  4. “Concurrent Call Path” means as a single 2-way concurrent call session to the Public Switched Telephone Network provided via the Service and includes caller ID and local and long distance calling within the continental United States and Canada.

  5. “Customer Content” means the content of calls, facsimiles, SMS messages, voicemails, voice recordings, shared files, conferences or other communications transmitted or stored through the Services.

  6. “Emergency Business Hours” shall be defined as Monday – Friday, 5PM – 8AM EST and Saturday – Sunday 12AM – 12PM, EST.

  7. “End User” means an individual user to whom Customer makes the Service available, and may be a natural person, and may include but is not limited to Customer’s employees, consultants, Customers, external users, invitees, contractors and agents.

  8. “Intellectual Property Rights” or “IP Rights” means all common law and statutory rights (whether registered or unregistered, or recorded or unrecorded, regardless of method) arising out of or associated with: (a) patents and patent applications, inventions, industrial designs, discoveries, business methods, and processes; (b) copyrights and copyright registrations, and “moral” rights; (c) the protection of trade and industrial secrets and Confidential Information; (d) other proprietary rights relating to intangible property; (e) trademarks, trade names and service marks; (f) a person’s name, likeness, voice, photograph or signature, including without limitation rights of personality, privacy, and publicity; (g) analogous rights to those set forth above; and (h) divisions, continuations, continuations-in-part, renewals, reissuances and extensions of the foregoing (as applicable).

  9. “Law” means any law, statute, regulation, rule, ordinance, administrative guidance, treaty or convention, or court or administrative order or ruling of any governing Federal, State, local or non-U.S. governmental body with jurisdiction over the Services.

  10. “Service(s)” means all services provided under this Agreement, and set forth in one or more Order(s).

  11. “Order(s)” means a request or order for Service describing the type and quantity of Services required by Customer and submitted and accepted by the Parties in accordance with Section 3.1 (Service Ordering). The Order may be presented and executed physically or by contemporary means of electronic signature.

  12. “Service Term” means the length of time in months in which Accent shall deliver the Services based on the Accent provided and Customer executed Order, including both the Initial Term and any Renewal Term(s).

  13. “Standard Business Hours” shall be defined as Monday – Friday, 8AM – 5PM EST. 

  14. “VoIP” means Voice over Internet Protocol, a transmission protocol used to deliver voice communication services via the Internet.