Terms of Service
THESE TERMS OF SERVICE (TOS) PROVIDE FOR SETTLEMENT OF DISPUTES BY ARBITRATION INSTEAD OF JURY TRIALS. See Section 11.
The Services include new products, product changes, upgrades, support and other services. You may only receive the Services if you are a Service subscriber in good standing with a valid, authorized payment method on file with ATC. You understand that you must obtain your own Internet connection in order to use the Services. We do not control your Internet access or the quality of your Internet connection. WE ARE NOT RESPONSIBLE FOR ANY THIRD PARTY PRODUCTS OR SERVICES, OR FOR PROBLEMS IN THE SERVICES CAUSED BY YOUR INTERNET CONNECTION OR THIRD PARTY PRODUCTS OR SERVICES NOR WILL WE CONTACT ANY OF THESE PROVIDERS ON YOUR BEHALF.
Unlimited calling applies only to calls made within the continental United States and Canada. Calls to Alaska, Hawaii and all non-Canadian international calls are subject to additional charges.
Additional ATC Services can be purchased by users you designate as administrators by calling ATC Customer Care. You hereby authorize those users with administrative privileges to (i) add these Services to your ATC account and (ii) commit you to pay for these Services on a recurring monthly basis. You further authorize ATC to obtain payment of your then-current statement balance from you each month from your credit card account.
You may designate one or more users to be an account administrator with full administrative control of your account from the ATC Portal. For most ATC VoIP customers, the primary administrator for your account is known as the Superuser or, in some cases, a primary administrator (collectively hereinafter, "Superuser"). Upon creation of your account, the individual assigned to be the Superuser is the individual who entered into an agreement with ATC through our online sign-up process or, if the agreement was not entered into online, the individual's whose name is identified on your ATC quote sheet. The Superuser: (i) has the ability to make any changes to the account (e.g., service additions, service deletions, assignment of users, account cancellations, updates to credit cards, etc.); and (ii) is the authorized individual on your account with respect to porting of your telephone numbers to a carrier other than ATC. The Superuser may assign one or more additional administrators on the account and may re-assign "Superuser" status to another user. In the event that you wish to re-assign the Superuser designation on your account and the Superuser is unable to make the change, ATC will require that you submit an email from the Superuser's email address which is on file with ATC or otherwise provide a written request via facsimile, on your letterhead and executed by an officer or owner of the company which you represent.
Administrators on the account have the ability to authorize an account cancellation and make changes to the account (e.g., service additions, service deletions, assignment of users, updates to credit cards, etc.) but may not (i) designate himself or herself as the Superuser or (ii) designate any other user as an administrator.
Should you wish ATC to provide information on your account with respect to a customer service record or actual call log details (other than through the ATC Portal), such request may be made by the Superuser or any administrator on the account, but information provided by ATC will only be transmitted to the email address on file for the Superuser. The Superuser or any other administrator may designate the one or more "Company Contacts" for the account. The Company Contact is the individual(s) who will receive all messages from ATC VoIP concerning matters of general relevance to the account (notices of updates to the account, billing notices, maintenance alerts, etc.), which such notices are typically provided through electronic mail. ATC VoIP will initially assign the Superuser to be the Company Contact. A Company Contact may or may not be the Superuser or an administrator for the account.
ATC may adjust the components comprising a specific plan at any time. ATC reserves the right, from time to time, to enhance or change the terms and modify service plans and features, provided that such changes are consistently applied in a manner and degree to similarly situated customers. This may include changes to address issues caused by customers such as violation of the fair use terms associated with unlimited plans (See Section 4.2 for the fair use terms). ATC will use commercially reasonable efforts to provide thirty (30) days advance notice of such proposed changes. ATC also reserves the right to increase pricing when there are government sourced or regulated changes applicable to VoIP providers which increase the cost of VoIP services, and to include/exclude certain international calling destinations at any time based on its commercial or legal judgment. All pricing is exclusive of taxes, fees, and other government charges.
1. PAYMENT & SERVICES.
1.1 Automatic Monthly Billing.
The Services are provided on a monthly basis, with an automatic monthly renewal unless you give us seventy-two (72) hours notice of cancellation prior to a scheduled billing date in accordance with the requirements of Section 2 below. You agree to pay ATC the recurring monthly service charges, set-up charges and usage charges, if applicable, for your use of the Services plus any applicable taxes as set forth in Section 1.4 below.
1.2 Payment Processing.
You agree to provide us with a valid email address and a valid payment method. You must advise us immediately if your email address changes and/or payment method changes or expires. Failure to comply may result in the immediate termination of Services. You authorize ATC to automatically bill the credit card you provided, until you cancel the Services in accordance with the requirements of Section 2 below. You agree that ATC may receive updated information about your account from the financial institution issuing your credit card. Under certain circumstances a customer may make payments by check. Those customers will be charged a $10 per month processing fee and will be required to maintain a non-interest bearing deposit, to be held on account, in the amount of one month's total billings. This deposit will be adjusted as service levels increase or decline and will be refunded, less any past due balance, if you cancel your account.
1.3 Fee Payments & Late Charges.
Except for usage based fees, all fees are due in advance on the first day of each billing period. Fees may include monthly recurring charges ("Service Fees"), and other non-recurring charges including but not limited to, activation fees, porting fees, early termination fees ("ETF"), regulatory compliance and intellectual property recovery fees ("Regulatory Recovery Fees") and government mandated pass through fees such as, but not limited to, Universal Service Fees ("USF") and e911 fees ("Fees"). All usage based charges (including charges for calls to Alaska, Hawaii and international calls), Fees and any other non-recurring charges are due and payable in arrears on the first day of each billing period following the month they were incurred. You agree to pay for all equipment and set up fees at the time you request the Services. You agree to pay for the first month of Services upon your request for such Services. All payments, including payments paid in advance, are completely non-refundable. Failure to pay in full will result in immediate account suspension and ATC shall have no liability for such suspension under any circumstances. Accounts will be reactivated, at ATC's sole discretion, only when the account balance is paid in full and a $25 reconnect fee is paid. ATC will assess an additional 1.5% (or the highest amount allowed by law, whichever is higher) per month late charge if your payment is more than thirty (30) days past due. ATC, a Marketing Partner or an Authorized Distributor may modify the Service fees or other Fees at any time, but will provide at least thirty (30) days advance notice by postal mail, email or by publishing the new Service fees or Fees on its respective website. In the event that you present a check to ATC for payment that is returned by your bank for non-sufficient funds, you shall pay a processing fee of $25. Payment terms for customers acquiring ATC Services from a Marketing Partner or Authorized Distributor will be specified on the invoice, including late payment, reconnect fees, non-sufficient fund fees, and processing fees, if different from the terms herein. A Marketing Partner or Authorized Distributor may suspend Services when payments are not timely made and the timeframe and procedures for doing so may vary by Marketing Partner or Authorized Distributor. You are responsible and liable for any fees, including attorney and collection fees, that ATC, a Marketing Partner, or an Authorized Distributor may incur in its efforts to collect any remaining balances from you. You also agree that you will be billed for and will pay any outstanding balances if you cancel the Services.
During any period of suspension for non-payment, Services will be unavailable to you until the account balance is paid in full.
Notwithstanding the foregoing, in the event that your use of the Services involves usage-based charges that in ATC opinion are substantial, ATC may, in its sole discretion, process charges against your payment method prior to your regular monthly billing cycle date and/or require a non-interest bearing deposit to secure your payment obligations under this Agreement. In the event that ATC requires a deposit, the deposit will be in an amount determined by ATC to be equal to your forecasted monthly usage charges. All deposits must be paid via a wire transfer and will be held on account during the term of this Agreement. This deposit may be adjusted as usage levels increase or decline and will be refunded, less any past due balance, if you cancel your account. ATC may suspend your service at any time pending receipt of the required deposit. Marketing Partners and Authorized Distributors may do the same.
Prices for the Services do not include any customs duties, sales, use, import or export, value added, excise, federal, state, local, public utility, universal service or other similar taxes. You may also be charged taxes by a Marketing Partner or Authorized Distributor for non-ATC products and services sold or licensed by that Marketing Partner or Authorized Distributor in connection with your order for ATC Services. All such taxes shall be paid by you and will be added to any amounts otherwise charged to you unless you provide ATC, Marketing Partner or Authorized Distributor, as applicable, with an appropriate exemption certificate. If any amounts paid for the Services are refunded by ATC, Marketing Partner or Authorized Distributor, applicable taxes may not be refundable.
1.5 Invoice Discrepancies & Currency Conversion.
We deliver all invoices through email only. You agree to notify ATC about any billing problems or discrepancies within thirty (30) days after they first appear on your account statement. If you do not bring them to ATC's attention within thirty (30) days, you agree that you waive your right to dispute such problems or discrepancies. All transactions are charged in U.S. dollars (USD). Please remember that orders placed with us will be converted from USD to your currency by your credit card company when they process the transaction. ATC cannot be held responsible for any adverse currency fluctuations.
1.6 Release of Numbers.
You acknowledge that in the event of any account termination or cancellation, all telephone numbers associated with your account may be released. Similarly, the cancellation of individual services which have associated telephone numbers will result in the release of such numbers. You acknowledge that it is your responsibility to work with a third party provider to port out those numbers prior to your termination or cancellation of your account or termination of services.
1.7 Regulatory Recovery Fee.
A Regulatory Recovery Fee for every phone number assigned to your account will be charged monthly to offset costs incurred by ATC in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The Regulatory Recovery Fee will apply to every phone number assigned, including toll free and virtual numbers.
1.8 E911 Fee.
The FCC requires that ATC provide emergency 911 services, and allows us to charge a recurring monthly fee that is used for the following: next generation costs required by the Federal Communications Commission (FCC) for supporting computer software and hardware upgrades that allow public safety answering points (PSAP) to send assistance to the registered location of a 911 caller. The monthly Emergency 911 Fee is charged for each Unlimited and Metered Extension and for each Secondary Line Appearance.
1.9 Unlimited Voice Services.
Unlimited voice services are provided solely for live dialog between individuals. Unlimited voice services may not be used for reselling voice services such as conferencing, monitoring services, data transmissions, transmission of broadcasts, transmission of recorded material, or other connections which do not consist of uninterrupted live dialog between individuals. If ATC finds that you are using an unlimited voice service offering for other than live dialog between two individuals, ATC may, at its option, terminate your service or change your plan to one with no unlimited usage components. ATC may provide commercially reasonable written or email notice that it intends to take any of the above actions, and you may terminate the Agreement. Notwithstanding the foregoing, you shall be entitled to use ATC conference calling services such as three way calling and ATC-provided conference calling bridges. See section 4.2 below for additional limitations pertaining to your use of unlimited voice services.
1.10 Metered Usage.
There are certain calls which will incur additional usage charges, such as calls to Alaska, Hawaii and international calls. Metered usage is billed in full-minute increments, and actual usage is rounded up to the next full increment at the end of each call for billing purposes.
1.11 Bundled Usage.
ATC or its Marketing Partners or Authorized Distributors may offer bundled plans which include a defined combination of services and which may offer a specified number of minutes or unlimited usage (subject to Fair Use Policy set forth in Section 4.2 below). Bundled plans may also include usage based charges that differ from other ATC, Marketing Partner or Authorized Distributor plans. In some bundled plans, the number of minutes used may be aggregated into a pool of minutes available to all extensions on an account with excess usage charges applying for any usage above the allotted aggregate minutes at a specified rate
1.12 Credentials Necessary to Access Services.
Customer is responsible to secure all credentials used to access the Services, including credentials used by telephones or softphones and credentials used by end users or administrators to access the ATC user interface, as well as the media access control (MAC) address of telephones used by Customer. Customer acknowledges that placing telephones on a publicly accessible internet protocol address or a publicly accessible network will subject the Customer to a higher level of risk for fraudulent activity, as will use of the Services using a network that has not been secured using best practice measures. Customer acknowledges that Customer bears the risk of loss arising from any unauthorized or fraudulent usage of the Services. ATC may, but shall not be required, to take action to prevent or terminate any fraud or abuse in connection with the Services.
1.13 Ancillary Services.
Caller name identification (i.e., caller ID with name) Services is provided by ATC are based on availability of such Services from ATC's underlying providers. We do not guarantee that such Services are available for all numbers in all serving areas.
Each voicemail message recorded by ATC shall be retained for a minimum of three (3) months from the date the message was recorded. ATC retains the right to purge all voicemail messages after this minimum retention period.
Certain Services provided by ATC shall be subject to separate end-user license agreements ("EULA"). The terms of such EULAs shall be binding upon the parties to this Agreement. If any such EULAs, or any provisions in such EULAs, are held to be unenforceable for any reason, the terms of this Agreement shall apply with respect to the supply of that Service.
ATC may introduce new ancillary Services to new and existing customers. Such ancillary Services may sometimes be offered on a trial basis for a specified period of time during which no fees shall apply to Customer. In some cases, the terms of the free trial may involve an automatic re-enrollment at the end of the trial unless the customer opts out of the trial and/or cancels the service during the term of the free trial. In no event shall ATC impose service fees on Customer for ancillary services without providing customer the opportunity to opt-out of the trial and/or to cancel the ancillary Service during a no-cost trial period.
1.14 Notices from ATC.
ATC may provide you notice under this Agreement either by written document, email, voice mail or by publishing the information on the ATC website.
2. CANCELLATION OF SERVICES.
Your request to initiate cancellation may be started by one of our Marketing Partners or Authorized Distributor. If you contact a ATC Marketing Partner or Authorized Distributor to cancel all Services or any portion thereof, the Marketing Partner or Authorized Distributor will collect the pertinent information and provide that information to ATC to effect cancellation in accordance with your instructions. You will receive written confirmation of the cancellation (whether all Services or individual Services) from ATC.
You may cancel the Services at any time by providing ATC with a notice of your intent to cancel at least 72 hours in advance by having the Superuser or an administrator either (i) contact ATC Customer Care by telephone during normal business hours or (ii) complete the input form located at www.cancel.atcvoip.com. YOU MAY ONLY CANCEL SERVICES THROUGH THESE TWO METHODS. ATC WILL NOT ACCEPT CANCELLATION VIA EMAIL, FAX, SMS OR OTHER METHODS. FAILURE TO CANCEL SERVICES IN ACCORDANCE WITH THIS SECTION WILL RESULT IN ONGOING SERVICE FEES. You acknowledge that the cancellation will be effective 72 hours after you provide notification to ATC via the cancellation form or by telephone. ATC will provide you with email confirmation of both your request to cancel Services and the actual cancellation of Services. If you do not receive a confirmation of your request to cancel or if you do not receive a confirmation of Service cancellation, you must notify ATC by sending an email to firstname.lastname@example.org or contacting ATC Customer Care by telephone.
In the event you signed up for a minimum commitment period, you will be responsible for all charges for the entire minimum commitment period. When you cancel your service all such fees will immediately accelerate and you authorize ATC to immediately bill all these fees to your payment method.
In the event that you subscribe to ancillary services provided by ATC, your election to cancel telephone service or any termination with ATC shall also cancel such ancillary Services. In the event that ATC is providing voicemail recording, call recording, or other such ancillary service to you, all of your data, including all recordings, will be deleted on or after the date that you cancel such service, In the event that you cancel an end user account within the online Web user interface (located at http://portal.atcvoip.com), the user data associated with such account on the ancillary service will be automatically deleted.
You may also cancel individual Services on your account at any time by contacting ATC Customer Care or your Authorized Distributor or Marketing Partner during normal business hours. You acknowledge that the cancellation will be effective on the date you specify but in no event earlier than 72 hours after you provide notification to ATC.
ATC does not refund in whole or in part, or issue credits for any charges already billed to your account. In the event you signed up for a minimum commitment period for the Services being cancelled, you are responsible for all charges for the entire minimum commitment period.
3. ATC'S RIGHT TO TERMINATE OR MODIFY SERVICES.
ATC may modify the terms of this Agreement or the Services, including but not limited to the price, content or nature of the Services, upon notice to you. Your continued use of the Services constitutes your agreement with the modified terms of this Agreement. In the event ATC modifies the Agreement or the Services, you may terminate the Services as provided in Section 2, above. ATC may terminate this Agreement and any Services at any time upon notice to you, provided that in the event you have not violated any term of this Agreement, you will be entitled to receive the Services for any period for which you have already paid, or a pro-rata refund at ATC's sole discretion. This Agreement will automatically terminate if you fail to comply with any term. No refund will be provided in the event that you have violated any term of this Agreement. No notice shall be required from ATC to effect such termination. Upon any termination of this Agreement (whether by you or ATC), you shall immediately discontinue use of the Services. Your obligation to pay accrued charges and fees shall survive any termination of this Agreement.
4. SERVICE USE RESTRICTIONS.
4.1 Compliance with Laws.
You agree that you shall only use the Services in a manner that complies with all applicable laws in the jurisdictions in which you use the Services, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights and restrictions concerning call recording, call monitoring, call interception and/or direct marketing or telemarketing. ATC may provide you with guidelines regarding compliance with applicable regulation(s); however, you are solely responsible for ensuring that your use of the Services is in compliance with such regulations. You may only use the Services for your own use. You may not use the Services in any way to provide, or as part of, any commercial service or application or in any way interfere with the users, services or equipment of the network. You may not attempt to, in conjunction with any device, software program or service, circumvent technological measures employed to control access to the Service. In addition to any other remedies available in equity or law to ATC, failure to comply with any of the terms and conditions in this Section 4 (Service Use Restrictions) shall result in immediate termination of the Services.
4.2 Fair Use.
ATC's business service plans and features are for normal, reasonable business use and consistent with the types and levels of usage by typical customers on the same business calling plan. "Typical" refers to the calling patterns of at least 95% of our business customers on the same business calling plan. While most reasonable uses of our Services in connection with the terms of this provision ("Fair Use Policy" or "Policy") are permitted by ATC, unauthorized or excessive use beyond that normally experienced by typical business customers may cause extreme network capacity and congestion issues and interfere with our network and third party networks with whom we connect for call initiation and completion services. Such unauthorized or excessive use may manifest itself in increased busy signals for our customers and others, and may result in service termination. Any use of the Services or any other action that causes a disruption in the network integrity of ATC services or its vendors, whether directly or indirectly, is strictly prohibited and may result in termination of the Services.
A. Evaluation of Usage
ATC evaluates customer usage in comparison to typical levels of permissible usage engaged in by our customers (business use under business service plans or affiliate use under co-branded business service offers or business plans). Co-branded use is defined as ATC's service that is provided by a third party partner under that third party partner's marketing brand, with or without reference to ATC. Each of the following is impermissible under ATC's business plans and considered outside of normal use, whether obtained directly from ATC, an authorized reseller, or from a co-branded ATC partner:
Resale to others
Auto-dialing or fax/voice blasts
Without live dialog, including use as a monitor or for transcription purposes
Continuous or extensive call forwarding
Telemarketing involving practices that are in violation of any law or regulation or any other activity that would be inconsistent with small business usage.
You agree that you will NOT use the Services in ways that violate laws, infringe the rights of others, or interfere with the users, services, or equipment of the Services. You agree and represent that you are purchasing the Services and/or the equipment for your own internal use only, and shall not resell, transfer or make a charge to the Services without the advance express written permission of ATC.
ATC reserves the right to review usage of unlimited usage plans to ensure that you are not abusing such plans. You agree to use unlimited voice plans for normal voice related communications with aggregate usage that falls within the range of similarly situated business customers. Use of unlimited "paperless facsimile" service must also fall within the normal range of similarly situated business customers and shall in no event exceed 500 transmitted pages sent or received per month. In addition, you agree that you will not employ methods or use devices to take advantage of unlimited plans by using the Services excessively or for means not intended by ATC. ATC may terminate service immediately if it determines, in its sole discretion, you are abusing an unlimited minute plan.
We reserve the right to at any time to enforce this policy in accordance with its terms. You agree that your level of usage of our unlimited service plans will be comparable to that of our typical business customer utilizing such plans. ATC deems usage that substantially exceeds the average volume of its other unlimited usage plan customers as abusive. You agree that ATC has the right to terminate your service or charge you additional fees if your usage is considered abusive in the sole discretion of ATC.
B. Excessive Usage
If it is determined that your usage is abusive, you agree to pay a per minute or per page fee for use in excess of those levels at the then current rate established by ATC, of at least $.06 per minute and/or $.06 per facsimile page. At ATC's sole option, your service may be immediately terminated. THIS OVERAGE FEE APPLIES TO ALL PLANS INCLUDING THE UNLIMITED PLANS. A customer's aggregate usage may be considered outside of normal use if involves excessive:
number of calls made to a conference calling service during a month;
number of calls terminated and re-initiated consecutively, which, in the aggregate, result in excessive call lengths during a specific time frame; or
other abnormal calling patterns indicative of an attempt to evade enforcement of this Fair Use Policy
Based on such a combination, ATC may determine that abnormal, unreasonable or impermissible usage is occurring when compared to typical customers on the same calling plan, and may take appropriate steps described below to enforce this Policy and the Terms of Service.
C. For Lawful and Appropriate Purposes Only; ATC's Rights
You may not use our Service or devices in any way that is illegal, fraudulent, improper or inappropriate. The following is a non-exhaustive list of examples of illegal, fraudulent, improper, or inappropriate uses of our Service and or devices.
Invasive of another's privacy or any similar behavior
D. Prohibited Use.
You may not use any automated means to manipulate our Service or use our Service to violate any law, rule, regulation or any third parties intellectual property or personal rights. You shall not use our Service or our device to;
Impersonate another person;
Send bulk unsolicited messages;
Use robots, data mining techniques or other automated devices or programs to catalog, download, store or otherwise reproduce or distribute information from our Service or use any automated means to manipulate our Service;
Violate any law, rule or regulation;
Violate any third party's intellectual property or personal rights, or
Exceed your permitted access to our Service
We may monitor the use of our Service for violations Terms of Service. We may remove or block all communications if we suspect a violation of this agreement, or if we think it necessary in order to protect our Service, or ATC VoIP, its parent, affiliates, directors, officers, agents, and employees from harm.
We reserve the right to review your account and take further action, including, but not limited to, immediate suspension of your Service if account usage is beyond normal standards for typical customers on the same calling plan, impermissible or detrimental to other customers' ability to use the Service or adversely affects our or third party network providers' operations. We may assess abnormal usage based on comparisons to the usage patterns and levels of our other customers on the same plan(s). If we determine that you are engaging in abnormal or impermissible usage, we will use commercially reasonable efforts to inform you and may provide you with the opportunity to correct the improper usage. If we afford you the opportunity to correct your abnormal usage patterns and you fail to immediately conform to normal use, we may exercise our right to transfer your service to a more appropriate plan, charge applicable rates for that plan, implement other limitations or suspend or terminate your service with or without notice. If we believe that our Service has been used for an unlawful purpose, we may immediately terminate your Service with or without notice and/or forward the relevant communication and other information to the appropriate authorities for investigation and prosecution. We reserve all of our legal rights.
E. Right to Disclose Information
If we believe that you have used our service or device for unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You consent to our forwarding of any such communications and information to these authorities. In addition, you hereby agree disclose your name, telephone number, credit card information, and other personal information, any communications sent or received by you, and any other information that we may have about your account, including but not limited to, types of service, length of service, MAC address(es), IP address(es), email address(es), registered 911 address, and all other account information, as follows:
In response to law enforcement or other governmental agency requests;
As required by law, regulation, rule, subpoena, search warrant, or court order;
As necessary to identify, contact, or bring legal action against someone who may be misusing the service, the device, or both;
To protect ATC VoIP's rights and property; or
In emergency situations where disclosure of such information is necessary to protect ATC VoIP' customers or third parties from imminent harm.
ATC reserves the right to change this Policy at any time upon notice to you. Changes shall become effective upon the later of the date specified in the notice or when a revised Policy is posted to ATC's website.
5. PERSONAL INFORMATION AND PRIVACY.
6. NOTIFICATION OF SERVICE CHANGES
From time to time, ATC may send you and your employee's emails or text messages (SMS) describing new or changed Services, and how to access them, to the email addresses or SMS mobile phone numbers you provide. If you provide us with your cell phone number, you consent to receiving service-related information from us via SMS. You will receive service related emails or SMS messages even if you have opted out of receiving other emails or other SMS messages from ATC. If you do not want to receive service related emails or SMS messages, you may cancel the Service at any time as provided in this Agreement You also agree that you are solely responsible for the SMS charges that your wireless provider may charge for both sending and SMS to us and for receiving any account-related SMS from us.
7. PORTED TELEPHONE NUMBERS ON SERVICE DISCONNECTION.
7.1 Single line Accounts.
You may be able to take, or "port," your current telephone number(s) to another service provider. You will remain responsible for all charges and fees until you notify ATC of your election to cancel services in accordance with Section 2. Until you notify us of your intention to cancel, your Service and your Agreement with us will not terminate, you will remain a ATC customer, and you will continue to be responsible for all charges and fees associated with your ATC Service. You will not receive any refund or partial refund or any credits for any charges already billed to your account.
7.2 Multiple-line Accounts.
If you request that a new service provider port a number from us and you have multiple numbers assigned to your account and/or additional equipment on your account, you are required to inform us of your intent to terminate the specific affected Services on your account or we will continue to bill for such Services. You will continue to be responsible for all the charges and fees associated with the remaining Services on your ATC account. You will not receive any refund or partial refund or any credits for any charges already billed to your account. Telephone numbers assigned by ATC for ATC's facsimile service cannot be ported to a new service provider without the assistance and cooperation of ATC' underlying partner who provides their phone numbers. ATC will use commercially reasonable efforts to facilitate a port of a facsimile number which was ported on your behalf to ATC by another service provider. You may be required to pay a porting fee to ATC of not less than $100 per facsimile number ported
7.3 Request for ATC to Port numbers.
If you request that ATC port a number from an existing service provider to ATC, ATC will use commercially reasonable efforts to assist you in porting that number. You acknowledge that service providers require verification of identity, as well as authorization and other reasonable information in order to port any numbers to ATC. You must correctly complete a letter of authorization, provide us with a copy of your most recent bill from such service provider, and provide us with any other information required by such service provider to port your number to ATC. FAILURE TO PROVIDE ANY INFORMATION REQUESTED BY ATC OR THE THIRD PARTY SERVICE PROVIDER WILL DELAY THE PORTING OF THE NUMBER TO ATC. ATC SHALL NOT BE RESPONSIBLE FOR ANY DELAY IN THE PORT OF YOUR NUMBER AND WILL NOT PROVIDE CREDIT FOR ANY SUCH DELAYS.
In some cases, ATC may permit you to submit documentation required to port numbers using a web-enabled user interface You may withdraw your consent to submit your porting request electronically by contacting ATC Customer Care prior to our submitting the porting request to the carrier . Your consent to electronic submission applies only to the specific porting request you submit through web-enabled interface.
8. DISCLAIMER OF WARRANTY & LIMITATION OF LIABILITY.
THE SERVICES ARE PROVIDED AS-IS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ATC FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. YOU ASSUME THE ENTIRE RISK ARISING OUT OF THE USE OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ATC, ITS SUPPLIERS, DISTRIBUTORS, RESELLERS, OR RETAILERS BE LIABLE (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, COMPUTER FAILURE, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICES EVEN IF ATC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH ATC RELATED TO THIS AGREEMENT OR THE SERVICES/CONTENT SHALL BE CANCELLATION OF THE SERVICES. IN THE EVENT A COURT AWARDS DIRECT DAMAGES DESPITE THE FOREGOING, SUCH DAMAGES SHALL NOT EXCEED THE LESSER OF $250.00 OR THE AMOUNT YOU PAID TO ATC WITHIN THE LAST SIX (6) MONTHS. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. ATC DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY CONTENT PROVIDED BY OR THROUGH ATC ITS SUPPLIERS, DISTRIBUTORS, RESELLERS, OR RETAILERS.
YOU AGREE TO HOLD HARMLESS, INDEMNIFY AND DEFEND ATC, ITS OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS, RESELLERS, RETAILERS, AND SUPPLIERS FROM AND AGAINST ANY LOSSES, DAMAGES, FINES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS) ARISING OUT OF OR RELATING TO ANY CLAIM THAT YOU HAVE VIOLATED ANY TERM OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE REQUIREMENTS SET FORTH IN SECTION 4.1 OF THIS AGREEMENT.
10. NO ASSIGNMENT.
This Agreement is personal to you (or the company which you represent), and may not be assigned without ATC's express written consent. If you are agreeing on behalf of a company, you represent that you are authorized to bind the company under this Agreement.
11. OTHER IMPORTANT PROVISIONS.
11.1 Dispute Resolution And Binding Arbitration
PLEASE READ THIS CAREFULLY, IT AFFECTS YOUR RIGHTS.
It is important that you read this entire section carefully. This section provides for mandatory resolution of disputes through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury. Any arbitration under this agreement will take place on an individual basis; class arbitrations and class action lawsuits are not permitted.
ATC and you agree to arbitrate any and all disputes and claims between you and ATC. Arbitration means that all disputes and claims will be resolved by a neutral arbitrator instead of by a judge or jury in a court. This agreement to arbitrate is intended to be given the broadest possible meaning under the law. It includes, but is not limited to:
disputes and claims arising out of or relating to any aspect of the relationship between you and ATC, whether based in agreement, tort, statute, fraud, misrepresentation or any other legal theory;
disputes and claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
disputes and claims that may arise after the termination of this agreement;
disputes and claims that are currently the subject of individual litigation;
disputes and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
disputes and claims concerning the scope of this arbitration provision.
References to "ATC," "us" and "you" include our respective parent, subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of the service under these Terms of Service or any prior agreements between you and ATC.
Informal Resolution of Disputes
Our Customer Care Department can resolve most customer concerns quickly and to the customer's satisfaction. If you have a dispute or claim against us, you should first contact the ATC Customer Care Department by telephone at 1-844-ATC-VOIP (1-844-282-8647) or by email at http://atcvoip.com/contact-us/ . In the event your dispute or claim is not resolved to your satisfaction, you may seek to have that dispute or claim resolved through mandatory arbitration as set forth below.
Formal Notice of Disputes
A party who intends to seek arbitration must first send to the other party a written Notice of Dispute. A Notice of Dispute must be sent to ATC by certified mail addressed to: ATC VoIP, Attn: Chief Legal Officer, 132 W 32nd St, 15th Floor, New York, NY 10040 with a copy by email to email@example.com. A Notice of Dispute must be sent to you by certified mail or overnight express delivery with verification at the last mailing address that you registered with ATC and a copy by email to you at the last email address you registered with ATC. The Notice of Dispute must describe the nature and basis of the dispute or claim and set forth the specific relief sought. If you and ATC do not reach an agreement to resolve the dispute or claim within thirty (30) calendar days after the Notice of Dispute is received, you or ATC may commence an arbitration proceeding by downloading or copying a form from the AAA website: http://www.adr.org. The amount of any settlement offer made by you or ATC shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or ATC is entitled.
Arbitrator and Arbitral Rules
The arbitration shall be administered by the American Arbitration Association ("AAA"). You may contact the AAA by telephone at 1-800-778-7879, by email at Websitemail@adr.org, or by mail at 1633 Broadway, 10th Floor, New York, New York 10019. The arbitration shall be governed by the AAA's Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules"), as modified by this Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.
Location and Procedure of Arbitration
Unless you and ATC mutually agree otherwise, all hearings conducted as part of the arbitration shall take place at a location, convenient to you, in the county or parish of your billing address. If your claim is for $10,000 or less, you or ATC may request that the arbitration be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim is in excess of $10,000, the right to a hearing will be determined by the AAA Rules.
Fees and Costs
You are responsible for all costs that you incur in the arbitration, including, but not limited to, attorneys or expert witness fees. If a party elects to appeal an award, the prevailing party in the appeal shall be entitled to recover all reasonable attorneys' fees incurred in that appeal. Notwithstanding anything to the contrary in this arbitration provision, ATC shall pay all fees and costs which it is require by law to pay.
Waiver of Jury Trial
You and ATC agree that, by entering into this agreement, you and ATC are waiving the right to a trial by jury.
Waiver of Class Actions
You and ATC agree that the arbitrator may award 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. YOU AND ATC AGREE THAT YOU AND ATC 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. You and ATC agree that, unless you and ATC agree otherwise, the arbitrator may not consolidate more than one person's or entity's claims, and may not otherwise preside over any form of a representative or class proceeding.
Statute of Limitations
State laws may limit the time period after which you may assert a claim; in some cases you may be required to assert a claim within one (1) year after the occurrence of the event or facts giving rise to a dispute (except for billing disputes). Your failure to timely assert your claim may result in a waiver of your legal rights.
Exceptions to Arbitration Agreement
You and we agree:
you may take your dispute to small claims court, if your dispute qualifies for hearing by such court;
if you fail to timely pay amounts due, we may assign your account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement;
you or we may take any disputes over the validity of any party's intellectual property rights to a court of competent jurisdiction;
any dispute related to or arising from allegations associated with fraudulent or unauthorized use, theft, or piracy of service may be brought in a court of competent jurisdiction; and
either you or we may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect the rights or property of you or ATC, pending the completion of arbitration.
Modification of Arbitration Provision
Despite any provision in this Agreement to the contrary, if ATC makes any substantive change to this arbitration provision, you may reject any such change by sending us written notice within thirty (30) days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
11.2 Complete Agreement.
This Agreement shall constitute the complete and exclusive agreement between us, notwithstanding any variance with any purchase order or other written instrument submitted by you, whether formally rejected by ATC or its Authorized Distributors or Marketing Partners or not. The acceptance of any purchase order is expressly made conditional on your consent to the terms set forth herein and any additional terms in your purchase order or similar document shall be null and void. The terms and conditions contained in this Agreement may not be modified by you except in a writing duly signed by you and an authorized representative of ATC. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. ATC is not liable for editorial, pictorial, or typographical errors in this communication.
You may be required to purchase telecom equipment in order to utilize the Services. Procuring and maintaining that equipment is your sole responsibility. ATC may, at your request, facilitate the provision of equipment from a third party supplier or resell certain equipment. While we suggest and resell some equipment brands and facilitate your purchase of some equipment as an accommodation, the original equipment manufacturer and not ATC shall be responsible for any equipment defects, if applicable. ATC will pass through all original equipment manufacturer warranties for the equipment to you. ATC shall have no liability to you of any nature regarding such equipment. Please check the equipment provider's website for warranty, return rules and other terms and conditions applicable to such third party equipment supplier.
Equipment may not be returned to ATC for any reason. ALL EQUIPMENT SALES ARE FINAL. Equipment may be returned to the manufacturer solely in the event of a defect which arises within the applicable warranty period, provided you comply with the terms of this Section and the manufacturer's Return Materials Authorization ("RMA") policy. Prior to returning the equipment, you must contact ATC so that ATC may determine whether a defect exists and to receive an RMA number, which is required along with the return. You must ship the equipment to the manufacturer at the address provided by ATC in accordance with all RMA procedures. You have ten (10) days after receipt of an RMA to ship the equipment back to the manufacturer at the address we provide. You must pay all shipping fees. Once the manufacturer has received the equipment, the original equipment manufacturer will deal with the equipment under its applicable warranty policy.
12. EMERGENCY SERVICES- 911 DIALING & NON-VOICE SYSTEMS.
12.1 Non-Availability of Traditional 911 or E911 Dialing Service.
At ATC 911 dialing service operates differently than traditional 911. You agree to inform any business invitees, guests and other third persons who may be present at the physical location where you utilize the Service of the non-availability of traditional 911 or E911 dialing from your ATC's Service and equipment. The physical location where you utilize the Service must be the actual physical street address where the equipment is located, not a P.O box, mail drop or similar address.
12.2 Description of 911-Type Dialing Capabilities – Activation Required.
ATC offers 911-type dialing service in certain areas within the U.S. (but may not offer such service in certain areas of the U.S. or non-U.S. locations) that differs from traditional 911 services. When you dial 911 your call is routed from the ATC network to the Public Safety Answering Point (PSAP) or local emergency service personnel designated for the address that you listed at the time of activation. If you make changes to your 911 address using the ATC online web user interface http://portal.atcvoip.com, your call may be routed to a different PSAP or local emergency service personnel, who may ask you to provide your location and other information. Calls to 911 using a ATC-provided mobile or softphone application may use the native dialer of the customer-provided device to complete the call to 911 using the carrier's cellular network. If the native dialer is unavailable due to lack of service coverage or other condition that would prevent the call from being placed, the ATC-provided mobile or softphone application will attempt to complete the call over an alternative, non-cellular network. 911 calls completed using a ATC-provided mobile or softphone application over a non-cellular will be routed to a national clearing house. In such situations, 911 fees and taxes may not be assessed.
Calls dialed by handset extensions included in your account with ATC will be routed from the ATC's network to the PSAP or local emergency service personnel designated for the address that you listed at the time of activation. In the event that your equipment is used in multiple locations, or in the event that one or more items of equipment are used in multiple locations, end users designated as administrators on your account may, at your option, create additional service locations and associate your equipment to specific locations for the purposes of routing calls to the local PSAPs for such locations. Individual end users may assign and re-assign their current location on an as-needed basis, provided however, that the Super-user-", or System Administrator has previously activated that functionality. Updates can be made at http://portal.atcvoip.com. It is your sole responsibility to make these changes and to ensure that all business invitees, household residents, guests and other third persons who may be present at the physical location(s) where you utilize the Service are aware of this option.
For any ATC extensions assigned to a non-US 911 location (subject to applicable local law), calls placed to 911 will be routed to a US-based call center that may not be able to offer local emergency assistance to the caller.
12.3 Service Outage.
You acknowledge and agree that (a) 911 dialing does not function in the event of a power failure or disruption. If an interruption in the power supply occurs, the Service and 911 dialing will not function until power is restored and you may have to reset or reconfigure equipment prior to utilizing the Service or 911 dialing; (b) service outages or suspension or termination of service by your broadband provider and/or ISP or by ATC will prevent ALL Service including 911 dialing; (c) service outages due to suspension of your account as a result of billing issues will prevent ALL Service, including 911 dialing; (d) if there is a service outage for ANY reason, such outage will prevent ALL Service, including 911 dialing; and (e) ATC VoIP's liability is limited for any Service outage and/or inability to dial 911 from your line or to access emergency service personnel.
12.4 Possibility of Network Congestion and/or Reduced Speed for Routing or Answering 911.
You acknowledge and agree that (a) network congestion and/or reduced speed in the routing of a 911 communication made utilizing your equipment may be greater than that experienced when using traditional 911 dialing over traditional public telephone networks; (b) 911 dialing from your equipment will be routed to the general telephone number for the local emergency service provider (which may not be answered outside business hours), and may not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls at such local provider's facilities when such calls are routed using traditional 911 dialing; and (c) the general telephone number for the local emergency service provider may produce a busy signal or may take longer to answer, as compared to those 911 calls routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing.
12.5 Automated Number Identification.
Technical limitations may make it impossible for the Public Safety Answering Point (PSAP) and the local emergency personnel to identify your phone number when you dial 911. The local emergency operators answering the call may not see your telephone number or your registered address. The emergency center may not be equipped to receive, capture or retain your telephone number and registered address, so you must be prepared to give them this information. Until you give the operator your phone number, he/she may not be able to call you back or dispatch help if the call is dropped or disconnected, or if you are unable to speak. ATC's system is configured to send the automated number identification information; however, one or more telephone companies that route the traffic to the PSAP, and the PSAP itself, may not be able to receive the information and pass it along. You acknowledge and agree that PSAP and emergency personnel may or may not be able to identify your phone number in order to call you back if (a) the call is unable to be completed; (b) the call is dropped or disconnected; c) you are unable to speak to tell the dispatcher the location of your phone number and/or (d) the Service is not operational for any reason.
12.6 Limitation of Liability and Indemnification Related to E/911 Services.
ATC relies on third parties for the forwarding of information underlying such routing. ATC and its third party provider(s) disclaim any and all liability in the event such forwarded information or routing is incorrect. ATC and its officers, directors or employees may not be held liable for any claim, damage, loss or other cause of action, and you hereby waive any and all claims, damages, loss or causes of action, arising from or relating to ATC's 911 dialing.
You agree to defend, indemnify and hold harmless ATC, its officers, directors, employees, affiliates, agents and its third party provider(s) from any and all third party claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys' fees) arising out of, or resulting from (a) your failure to correctly activate 911 calling; (b) your provision to ATC of incorrect information in connection with your 911 calling or service; (c) misrouted 911 or E911 calls; or (d) the absence, failure or outage of the Service, including 911 dialing and/or inability of any user of your Service to be able to dial 911 or to access emergency service personnel.
12.7 Alternative 911 Arrangements.
You acknowledge and agree that (a) ATC does not offer primary line or lifeline services; (b) the equipment and Services do not support 911 emergency dialing or other emergency functions; and (c) users of the Services, who may place calls using your phone services, need to be notified of the 911 limitations.
ATC ADVISES YOU TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES SUCH AS TRADITIONAL TELEPHONES AND CELLULAR PHONES. YOU SHOULD ALWAYS HAVE AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 OR E911 SERVICES.
13. CONSENT TO USE OF ELECTRONIC SIGNATURES AND RECORDS
As a convenience and courtesy to you, ATC provides access to its Services online which may require you to enter into agreements or receive notices electronically. Accordingly, you acknowledge and agree that by clicking "I Agree" or "I Accept" anywhere on a ATC website:
13.1 You agree to conduct electronically the particular transaction into which you thereby enter including, without limitation, entering into this Agreement;
13.2 You have read and understand the electronic copy of electronic contracts, notices and records, including, without limitation, this Agreement, and any policies and any amendments hereto or thereto;
13.3 You agree to, and intend to be bound by, the terms of the particular transaction into which you thereby enter;
13.4 You are capable of printing or storing a copy of electronic records of transactions into which you enter including, without limitation, this Agreement and any amendments hereto; and,
13.5 You agree to receive electronically information about the Services and other electronic records into which you thereby enter including, without limitation, this Agreement.
14. VENUE/GOVERNING LAW
This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without regard to conflicts-of-laws principles. By using the Services, you hereby agree that the exclusive jurisdiction for any and all disputes regarding these Terms shall lie in the federal, state, and local courts of Wilmington, Delaware.