TERMS AND CONDITIONS OF HOSTED CLOUD SERVICES

These Cloud Terms and Conditions of Service ("T's & C's") are incorporated into, and constitute an essential part of the Acuity Technologies Master Services Agreement (the "MSA" and together with these Terms and Conditions, the "Agreement") between Customer and Acuity when Customer has executed a Cloud Services Order ("CSO") or Scope of Work ("SOW"). Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to them in the Agreement. Acuity and Customer may be referred to herein individually as a "Party" and collectively as the "Parties."

SERVICES
1. Services and Orders. Acuity agrees to provide the cloud services set forth in the Statement of Work ("SOW") or the Cloud Services Order ("CSO") (the "Services"), subject to the terms and conditions of this Agreement and contingent upon Acuity's acceptance of any subsequent Cloud Service Order Form (the "Order") received from Client for additional services. The CSO annexed hereto and incorporated by reference herein. For purposes of the cloud Services, Order means the customer service orders setting out the selection of Services, the Initial Term, the rates and fees for the Services and any other written requests for additional services submitted to and accepted by Acuity after the due execution of this Agreement by the Parties. All CSO's and SOW's for the Acuity Timeclock Services shall be further subject to the scope of service terms
2. License granted by Acuity to Client. Acuity grants Client a limited, revocable, non-exclusive, non-transferrable license during the Term to access and use the Services solely in accordance with this Agreement. Acuity may reject any Order in its reasonable discretion, and Client-issued purchase orders will not constitute an Order or modify the terms of any Order or this Agreement. Only Acuity's provisioning of the Services described in an Order or Acuity's written acceptance of an Order shall be deemed Acuity's acceptance of an Order.
3. Excluded Services. All other services are specifically excluded from this Agreement. The Parties agree that any and all Services requested by Client that fall outside of the terms of this Agreement will be considered Projects or Out of Scope on-site adds, changes or moves, and will be quoted and billed as separate, individual Services. Likewise, should services by a Third-Party Vendor be necessary in order to resolve any issue, Acuity will inform Client and obtain its authorization for those services, which will then be invoiced directly to Client.
4. Support Coverage. Acuity will provide support coverage to designated representative(s) of the Client for the Services. Client is responsible for providing training and any other support to its end users, and Acuity shall have no responsibility whatsoever for such support. Client also has the option to purchase additional support programs from Acuity or other vendors.
  1. Support Hours. Availability. Remote Helpdesk and Vendor Management of Client's IT networks will be provided to the Client by Acuity through remote means between the hours of 8:00am - 5:00pm Eastern Time Monday through Friday, excluding public holidays. Network Monitoring Services will be provided 24/7/365. All services qualifying under these conditions, as well as Services that fall outside this scope will fall under the provisions of the associated CSO's or SOW's.
  2. Support. Acuity will respond to Client's Trouble Tickets under the provisions of Section 1.5, and with best effort after hours or on holidays. Trouble Tickets must be opened via email to helpdesk@thinkacuity.com, via phone to 813-769-5100, or via Acuity's support portal. Each call will be assigned a Trouble Ticket number for tracking.
  3. Service outside Normal Working Hours. Emergency services performed outside of the hours of 8:00am - 5:00pm Eastern Time Monday through Friday, excluding public holidays, shall be subject to additional charges.
5. Access to the Services. Client may access the Services online through by voice, text, smartphone app, or web app, as applicable to the specific service. To access the Services, Client must create an Acuity account with a valid information as required by the specific service. Client is responsible for all activities that occur under Client's account, regardless of whether the activities are undertaken by Client, Client's employees or a third party (including Client's contractors or agents). Acuity is not responsible for any unauthorized access to Client's account, except to the extent it results directly from the breach of this Agreement by Acuity. Client will contact Acuity immediately if Client believes that an unauthorized third party is using Client's account or if Client's account information is lost or stolen.
6. Taxes. It is understood that any Federal, State or Local Taxes applicable to the Services shall be added to each invoice for services or materials rendered under this Agreement. Client shall pay any such taxes unless a valid exemption certificate is furnished to Acuity for the state of use.
7. Security and Backup. Client acknowledges that it is responsible for taking steps to maintain appropriate security, protection and backup of its content, which may include the use of encryption technology to protect Client's content from unauthorized access and routinely archiving Client's content. Log-in credentials and any Acuity-provided security keys, including Third Party Licensor (as defined below) keys, are for Client's internal use only, and Client is responsible for keeping them available and secure. Lost security keys will result in permanently lost or inaccessible data, for which Acuity and its Third Party Licensors shall have no liability whatsoever.
8. End Users. Client is responsible for End Users' content and use of the Services. Client will ensure that all End Users comply with Client's obligations under this Agreement and that the terms of any agreement that Client may have with each End User are consistent with this Agreement. If Client becomes aware of any violation of its obligations under this Agreement by an End User, Client will immediately terminate such End User's access to the Services. For purposes of this Agreement, any content of or use of the Services by End Users will be deemed to be Client's content or use of the Services. "End Users" means Client's members, affiliates, employees, agents, contractors, customers or any other third parties who utilize or access the Services or the Acuity infrastructure through Client's Services or Client's account.
Third Party Licensors and Products.
1. Acuity may provide use of or access to software or technology from a third party vendor who licenses or otherwise grants a right to Acuity or Client to access or use its products in connection with Acuity Services (a "Third Party Licensor"). For purposes hereof, "Licensor Products" means any Third Party Licensor software, service, or technology and all intellectual property rights associated therewith, including without limitation, any worldwide copyrights, trademarks, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights that are made available in connection with the Services.
2. If Client has a separate agreement with a third party which permits Client to use a Licensor Product, Client represents and warrants that such agreement is in effect and applicable to Client's use of the Licensor Products with the Services. If Client does not have a separate license agreement with a Third Party Licensor for the relevant Licensor Product, then, in addition to the terms of this Agreement, Client agrees that Client's use of a third party vendor's software is subject to and governed by the terms set forth in the remainder of this Section.
  1. Prior to using the relevant Licensor Products, Client agrees that Client has reviewed any applicable Third Party Licensor agreements and has accepted the third party vendor's terms and conditions. Upon request by Acuity, Client agrees that Client will provide Acuity with evidence of such licensing and Client's agreement to it as Acuity may reasonably require prior to the commencement of the Services, and from time to time as necessary to update the status of the license.
  2. If Client fails to provide the required evidence of licensing, Acuity has the option to:
    1. Suspend the Services that were to include such software until Client provides the requested evidence;
    2. Provide the Services in reliance on Acuity's licensing agreement with the vendor, and charge Client its standard fee for the use of the software until such time as the required evidence is provided; or
    3. Terminate this Agreement.
3. Subject to Client's compliance with the terms of this Agreement and Client's payment of all fees and charges due hereunder, Client has a non-perpetual, non-exclusive, terminable, non-transferable, and limited license during the Term of this Agreement to copy, install, access, display, run, or otherwise interact with the Licensor Products solely as required to obtain the benefits of the Licensor Products connection with the Services provided by Acuity. Each Third Party Licensor retains and reserves all rights in its intellectual property not expressly granted to Client herein.
  1. If Client downloads any Licensor Product, Client is permitted to:
    1. install and use Licensor Products on a computer or other storage device; or
    2. install and use Licensor Products on a networked file server for the purposes of permanent installation onto hard disks or other storage devices or the use of the Licensor Products over Client's network; and
    3. make backup copies of the Licensor Products, solely to permit Client to obtain the benefits of the Licensor Products in connection with the Services provided by Acuity.
4. To the extent Licensor Products include third party technology, Client has a non-exclusive, non-transferable, limited sublicense to use the third party technology solely in connection with the related Licensor Products during the Term of this Agreement and the provision of Services by Acuity.
5. Client's license rights specified herein and any other rights that Client may have to any Licensor Products pursuant to this Agreement will automatically terminate upon the expiration or termination of this Agreement. Client agrees to promptly delete all Licensor Products, and any copies thereof, and all Third Party Licensor confidential information in Client's control or possession, including on any computer system or storage media, upon any expiration or termination of this Agreement. Client further agrees to destroy any other materials related to the Licensor Products in Client's possession or control, regardless of its format or containing medium, within thirty (30) days of the date of termination or expiration.
6. Client acknowledges that Licensor Products constitute valuable trade secrets of the Third Party Licensor and/or its suppliers. If Client engages in any activity in violation of this section, all profits and proceeds from such unauthorized activity, if any, will accrue to the Third Party Licensor and/or its suppliers, who will be the owner of same whether or not made in compliance with this Agreement.
  1. Client, and Client on behalf of its employees, and agents, agrees as follows:
    1. Client will not modify, translate, decompile, create or attempt to create by reverse engineering or otherwise, the source code from the object code of any Licensor Product, or adapt a Licensor Product in any way to create a derivative work;
    2. Client will not, and will not authorize any third party to use, reproduce, sublicense, distribute or dispose of a Licensor Product in whole or in part to enable such third party to benefit from the use or functionality of the Licensor Product, including, without limitation, via timesharing, service bureau arrangements or otherwise; and
    3. Client will comply with all reasonable requests made by a Third Party Licensor in relation to the protection of its intellectual property rights hereunder.
7. The Licensor Products and any worldwide copyrights, trademarks, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights relating thereto are the exclusive property of the Third Party Licensor and its suppliers and licensors. Third Party Licensor owns and exclusively retains all rights in and title to the Licensor Products and all future functionality and product developments thereto, if any. Client has no right to modify, duplicate or reverse-engineer any aspect of the Licensor Products.
8. Client is expressly prohibited from removing, modifying or obscuring any copyright, trademark, patent or other proprietary rights notices that are contained in or on any Third Party Licensor products and services. Client has no rights under this Agreement to use any Third Party Licensor logos in any manner whatsoever. Client must not undertake any action that will interfere with or diminish any right, title or interest in the trademark(s) or trade name(s) of any Third Party Licensor.
9. Client shall not offer, market, resell or otherwise provide any Licensor Products made available in connection with the Services to any third parties. Client is not authorized, solely by virtue of this Agreement, to act as a service provider in connection with or a reseller of any Licensor Products, or similarly make available Licensor Products for commercial profit.
10. Client acknowledges and agrees that the restrictions set forth in this Section are reasonable in the circumstances and that Client's violation of any of the provisions of this Section will result in immediate and irreparable harm and damage to the Third Party Licensor. Therefore, in the event of any violation of any provision of this Section, Client agrees that the Third Party Licensor will be entitled to equitable relief by way of temporary or permanent injunction or specific performance, and to such other relief as any court of competent jurisdiction may deem just and proper. Client hereby expressly submits to the personal jurisdiction of any such court in an action seeking such relief.
11. Client must cooperate with Acuity in the event that any Third Party Licensor requests Acuity's participation in an audit of the Licensor Products. Client agrees that Acuity can provide a Third Party Licensor with a list of the Licensor Products which run on Client's Services provided by Acuity and the relevant volume of such Licensor Products (e.g., number of licenses, users, etc.) provided to Client by Acuity. If a Third Party Licensor determines that Client is non-compliant with its licensing terms or program requirements, and Client does not cure the non-compliance within a reasonable time period specified by such vendor, then Acuity may terminate this Agreement, suspend the provision of any or all Services to Client, or both.
12. Third Party Licensors are intended third party beneficiaries to the terms in this Section and as such may assert any applicable rights set forth herein as may be necessary to protect their intellectual property rights or other confidential or proprietary material. For greater clarity, Client acknowledges and agrees that Third Party Licensors are also intended beneficiaries of the rights, remedies and disclaimers of Acuity under this Agreement and any reference to "Services” or “Equipment" in the Agreement shall also mean "Licensor Products".
13. In the event of a conflict between the terms of the Agreement and any other Third Party Licensor end user agreement, the terms of this Agreement will prevail. In addition, in order to access or use Licensor Products in connection with Acuity's Services and the Equipment, Client acknowledges and agrees that it may be required to accept Third Party Licensor's terms, including, but not limited to, pricing, termination, payment, and service levels.
Intellectual Property.
1. Retention of intellectual property rights. The Parties agree that each retains all right, title and interest to each's respective trade secrets, inventions, copyrights, and other intellectual property. Except for the rights expressly granted herein, nothing in the Agreement shall convey, license, or otherwise transfer any right, title, or interest in any intellectual property or other proprietary rights held by Acuity or the Third Party Licensors. Acuity's intellectual property and proprietary rights include any skills, know-how, modifications or other enhancements developed or acquired in the course of configuring, providing, or managing the Services.
2. Restrictions. Neither Client nor any end user may, or may attempt to do any of the following:
  1. modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Services;
  2. reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Services;
  3. access or use the Services in a way intended to avoid incurring fees or exceeding usage limits, or otherwise in violation of law.
3. Client's license rights are conditional. All licenses granted by this Agreement are conditional on Client's continued compliance this Agreement and will immediately and automatically terminate if Client does not comply with any term or condition of this Agreement. During and after the Term, Client will not assert, nor will Client authorize, assist, or encourage any third party to assert, against Acuity or any of Acuity's affiliates, customers, vendors, business partners, or Third Party Licensors, any patent infringement or other intellectual property infringement claim regarding any Services that Client has received from Acuity.
4. Feedback. If Client provides any feedback to Acuity or its affiliates regarding the Services, Acuity will own all right, title, and interest in and to such feedback, even if you have designated the feedback as confidential. Acuity and its affiliates will be entitled to use the feedback without restriction. Client hereby irrevocably assigns to Acuity all right, title, and interest in and to Client's feedback and agrees to provide Acuity with any assistance required to document, perfect, and maintain Acuity's rights in the feedback.
Limitation of Liability.In addition to other limitations of liability in the Agreement, Acuity is neither a hardware manufacturer nor a software developer, and makes no warranty whatsoever about any hardware or software's merchantability or fitness for a particular purpose. Acuity warrants only that its own services will be performed in a manner consistent with customary practices in the IT industry. Acuity does not warrant that the operation or other use of Client's IT systems will be uninterrupted, error-free, or free from damage or disruption to its data. Acuity will have no responsibility with regard to the quality, completeness or integrity of Client's data. Acuity further disclaims all warranties whatsoever, whether express or implied, written or oral, including, but not limited to, any warranty of fitness for a particular purpose; non-infringement; that customer will achieve a particular return on investment or a particular outcome; warranty arising by statute, course of dealing or use of trade; any warranty with respect to the security of the managed services and/or networks; and/or that hosted data will not be destroyed, lost, intercepted or altered by unauthorized persons.
Service Disclaimer. Client grants Acuity authorization to view any data within the regular routine of the repair or system improvement. Client also authorizes Acuity to reasonably delete, change, and/or rewrite any necessary information to complete the system repair or improvement that is consistent with the standards and practices in the industry.

VOIP Terms of Service

These Terms of Service constitute the agreement ("Agreement") between AcuityVOIP LLC, a Florida Limited Liability Company ("we," "us" or "Acuity") and the user ("you," "user", "Customer" or "Subscriber") of Acuity's business VOIP services and any related products or services ("Service").

This Agreement governs both the Service and any devices, such as an IP phone, Multimedia Terminal Adapter, Analog Telephone Adapter, switch, router or any other IP connection device ("Device" or "Equipment"), used in conjunction with the Service. If you purchased Equipment from a dealer, retail store or other provider other than Acuity, you are a "Retail Customer" for purposes of this Agreement.

BY ACTIVATING OR USING THE SERVICE, YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ, UNDERSTAND AND FULLY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT.

1. EMERGENCY SERVICES - 911 DIALING

1.1 Non-Availability of Traditional 911 or E911 Dialing Service. The Service does not support traditional 911 or E911 access to emergency services in all locations. Where we do not offer traditional 911 or E911 access, we offer a feature known as "911 Dialing" which is a limited emergency calling service available only on Acuity-certified Devices or Equipment. The 911 Dialing feature may not work at all when used in conjunction with a Soft Phone, Virtual Numbers or Subscriber provided Customer Premise Equipment. Our 911 Dialing feature is not automatic; you must separately take affirmative steps, as described in this Agreement and on our website, to register the address where you will use the Services in order to activate the 911 Dialing feature. You must do this for each Acuity phone number that you obtain. The 911 Dialing feature of the Service is different in a number of important ways from traditional 911 or E911 service as described on our website page for 911 Dialing under "Features," and below. You shall inform any household residents, guests and other third persons who may be present at the physical location where you utilize the Service of (i) the non-availability of traditional 911 or E911, and (ii) the important differences in and limitations of the Acuity 911 Dialing feature as compared with traditional 911 or E911 dialing. The documentation that accompanies each Device that you purchase should include a sticker concerning the potential non-availability of traditional 911 or E911 dialing (the "911 Sticker"). It is your responsibility, in accordance with the instructions that accompany each Device, to place the 911 Sticker on each Device that you use with the Service. If you did not receive a 911 Sticker with your Device, or you require additional 911 Stickers, please contact our customer care department at (813-769-5100).

1.2 Registration of Physical Location Required. For each phone number that you use for the Service, you must register with Acuity the physical location where you will be using the Service with that phone number. When you move the Device to another location, you must register your new location. If you do not register your new location, any call you make using the 911 Dialing feature may be sent to an emergency center near your old address. You will register your initial location of use when you subscribe to the Service. Thereafter, you may register a new location by following the instructions from the "911" registration link on your Acuity web account dashboard features page. For purposes of the 911 Dialing feature, you may only register one location at a time for each phone line you use with the Service.

1.3 Confirmation of Activation Required. Your 911 Dialing feature will not be activated for any phone line that you are using with the Service, unless and until you receive an email from us confirming that the 911 Dialing feature has been activated for that phone line.

1.4 How Emergency Personnel are Contacted. We contract with a third party to use the address of your registered location to determine the nearest emergency response center and then forward your call to a general number at that center. When the center receives your call, the operator will not have your address and may not have your phone number. You must therefore provide your address and phone number in order to get help. Some local emergency response centers may decide not to have their general numbers answered by live operators 24 hours a day. If we learn that this is the case, we will send your call instead to a national emergency calling center and a trained agent will contact an emergency center near you to dispatch help. You hereby authorize us to disclose your name and address to third-party service providers, including, without limitation, call routers, call centers and public service answering points, for the purpose of dispatching emergency services personnel to your registered location.

1.5 Service Outages.
(a) Service Outages Due to Power Failure or Disruption. 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to utilizing the Service, including 911 Dialing.
(b) Service Outages Due to Internet Outage or Suspension or Termination of Broadband Service or ISP Service. Service outages or suspensions or terminations of service by your broadband provider or ISP will prevent all Service, including 911 Dialing, from functioning.
(c) Service Outage Due to Suspension or Termination of Your Acuity Account. Service outages due to suspension or termination of your account will prevent all Service, including 911 Dialing, from functioning.
(d) Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts. Your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. In that event, provided that you alert us to this situation, we will attempt to work with you to resolve the issue. During the period that the ports are being blocked or your Service is impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Service, including the 911 Dialing feature, may not function. You acknowledge that Acuity is not responsible for the blocking of ports by your ISP or broadband provider or any other impediment to your usage of the Service, and any loss of service, including 911 Dialing, that may result. In the event you lose service as a result of blocking of ports or any other impediment to your usage of the Service, you will continue to be responsible for payment of the Service charges unless and until you terminate the Service in accordance with this Agreement.
(e) Other Service Outages. If there is a Service outage for any reason, such outage will prevent all Service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement. 1.6 Re-Activation Required if You Change Your Number or Add or Port New Numbers. 911 Dialing does not function if you change your phone number or if you add or port new phone numbers to your account, unless and until you successfully register your location of use for each changed, newly added or newly ported phone number.

1.7 Network Congestion; Reduced Speed for Routing or Answering 911 Dialing Calls. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Service as compared to traditional 911 dialing over traditional public telephone networks.

1.8 Possible Lack of Automatic Number Identification. It may or may not be possible for the local emergency personnel to automatically obtain your phone number when you use 911 Dialing. Our system is configured to send the automatic number identification information; however, one or more telephone companies, not us, route the traffic to the emergency response center and that center may not be capable of receiving and passing on that information. As a result, the operator who answers your 911 Dialing call may not be able to automatically obtain your phone number and call you back if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your phone number, or if the Service is not operational for any reason.

1.9 No Automated Location Identification. In most service areas, it is not possible at this time to transmit to the local emergency response center the address that you registered for 911 Dialing. You will need to state the nature of your emergency promptly and clearly, including your location (and possibly your telephone number), as the operator will not have this information. Emergency personnel will not be able to find your location if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your location, or if the Service is not operational for any reason.

1.10 Disclaimer of Liability and Indemnification. We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither Acuity nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 911 Dialing service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless Acuity, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel.

1.11 Alternate 911 Arrangements. If you are not comfortable with the limitations of the 911 Dialing service, you should consider having an alternate means of accessing traditional 911 or E911 services or terminating the Service.

2. SERVICE

2.1 Term. Service is offered on a monthly or multi-month basis as is determined in your Service activation or order form, or via our online ordering process. The term begins on the date that Acuity activates your Service and ends on the day before the anniversary date of your Term. Subsequent terms of this Agreement automatically renew on a monthly basis unless you give us written notice of non-renewal at least ten (10) days before the end of the monthly term in which the notice is given. You are purchasing the Service for full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you will be responsible for the full month's charges to the end of the then-current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will immediately become due and payable. You will also be responsible for the next full month’s charges in the event that you do not provide the requisite ten-days notice of termination prior to the expiration of the then-current term. Expiration of the term or termination of Service will not excuse you from paying all accrued and unpaid charges due under this Agreement.

2.2 This contract will Auto-Renew if there is not a written notification received by 10 days before the expiration of this dated contract. The contract date starts from the first day of service.

2.3 Use of Service and Acuity provided Device. You shall not resell or transfer the Service or the Device to another party without our prior written consent. You are prohibited from using the Service or the Device for auto-dialing, fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that you have at any time used the Service or the Device for any of the aforementioned or similar activities.

2.4 Use of Service only. For Service only customers, you are responsible for supplying, operating and supporting the Customer Premise Equipment for use with the Service. In addition, any customer supplied equipment must be pre-approved by Acuity in writing. You shall not resell or transfer the Service to another party without our prior written consent. You are prohibited from using the Service for auto-dialing, fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that you have at any time used the Service for any of the aforementioned or similar activities.

2.5 Prohibited Uses.

(a) Unlawful. You shall use the Service and the Device only for lawful purposes. We reserve the right to immediately terminate your Service if, in our sole and absolute discretion, we determine that you have used the Service or the Device for an unlawful purpose. In the event of such termination, you will be responsible for the full month's charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we believe that you have used the Service or the Device for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, Acuity will provide information in response to law enforcement requests, subpoenas, court orders, to protect it's rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others.
(b) Inappropriate Conduct. You shall not use the Service or the Device in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or any similar behavior. We reserve the right to immediately terminate your Service if, in our sole and absolute discretion, we determine that you have used the Service or the Device in any of the aforementioned ways. In the event of such termination, you will be responsible for the full month's charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we believe that you have used the Service or the Device in any of the aforementioned ways, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, Acuity will provide information in response to law enforcement requests, subpoenas, court orders, to protect it's rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others. Use of "outbound dialers" or "broadcasters" with this service is terms for immediate termination.

2.6 Use of Service and Device by Customers Outside the United States. Although we encourage you to use of the Service to place calls to foreign countries from within the United States, we do not presently offer or support the Service in any countries other than the United States and Canada. If you use the Service or the Device outside of the United States or Canada, you will be solely responsible for any violations of local laws and regulations resulting from such use. We reserve the right to terminate your Service immediately if we determine, in our sole and absolute discretion, that you have used the Service or the Device outside of the United States or Canada.

2.7 Copyright; Trademark; Unauthorized Usage of Device; Firmware or Software. (a) Copyright; Trademark. The Service and Device and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on our websites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All of our websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") are and will at all times remain our exclusive property. Nothing in this Agreement grants you the right or license to use any of our marks. (b) Unauthorized Usage of Device; Firmware or Software. You have not been granted any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, other than a non-transferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You expressly agree that the Device is exclusively for use in connection with the Service and that we will not provide any passwords, codes or other information or assistance that would enable you to use the Device for any other purpose. We reserve the right to prohibit the use of any interface device that we have not provided to you. You hereby represent and warrant that you possess all required rights, including software and/or firmware licenses, to use any interface device that we have not provided to you. In addition, you shall indemnify and hold us harmless against any and all liability arising out of your use of such interface device with the Service. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.

2.8 Tampering with the Device or Service. You shall not change the electronic serial number or equipment identifier of the Device or to perform a factory reset of the Device without our prior written consent. We reserve the right to terminate your Service if we believe, in our sole and absolute discretion, that you have tampered with the Device. In the event of such termination, you will remain responsible for the full month's charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will immediately become due and payable. You shall not attempt to hack or otherwise disrupt the Service or make any use of the Service that is inconsistent with its intended purpose.

2.9 Theft of Service. You shall notify us immediately, in writing or by calling our customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft, fraudulent use or unauthorized use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. Until such time as we receive notice of the theft, fraudulent use or unauthorized use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen, fraudulent or unauthorized use of the Service.

2.10 Return of Device (Does Not Apply to Customers who use Devices not provided by Acuity directly)
(a) Retail Customers. A Retail Customer may only return the Device to the retail store, dealer or other provider from which the Retail Customer purchased the Device. All returns will be subject to the return policy of such retail store, dealer or other provider. We will not accept any Device returned to us from a Retail Customer.
(b) Non-Retail Customers. Non-Retail Customers may return the Device to us within fourteen (14) days of the termination of Service to receive a credit for any termination fee (See Section 3.6) provided that:

the Service is terminated within the first thirty (30) days following the activation of the Service;
the Device is in original condition, reasonable wear and tear excluded;
the original proof of purchase are returned with the Device, together with the original packaging, all parts, accessories, and documentation;
prior to returning the Device to us, you obtain a valid return authorization number from our customer care department, which can be reached at 813-769-5100; and
you pay all costs of shipping the device back to Acuity.

If you disconnect multiple lines, we will issue you a credit for all termination fees upon receipt of all Devices in accordance with the requirements set forth above.

If you receive cartons or devices that are visibly damaged, you must note the damage on the carrier's freight bill or receipt and keep a copy. In such event, you must keep the original carton, all packing materials and parts intact in the same condition in which they were received from the carrier and contact our customer care department immediately at 813-769-5100.

2.11 Telephone Numbers and Portability. Any telephone number provided by Acuity ("Number") to the Customer shall be considered leased and not sold unless otherwise agreed by Customer and Acuity. Customer shall not use the Number with any device other than the Equipment without the express written permission of Acuity. Acuity reserves the right to change, cancel or move the Number at its sole discretion. At Acuity’s discretion, Acuity may release the Number to Customer at the end of the Term. For any Number ported to the Acuity system by the Customer, when Customer properly terminates its Services, Acuity will release the number according to the federal, state and local Local Number Portability rules upon request from the new provider.

Phone Numbers and Web Portal Discontinuance. Upon expiration, cancellation or termination of the Services, Customer shall relinquish and discontinue use of any telephone numbers, voice mail or conference bridge access numbers and/or web portals assigned to Customer by Acuity or its vendors.

2.12 Service Distinctions. The Service is not a telecommunications service and we provide it on a best efforts basis. Important distinctions exist between telecommunications service and the Service offering that we provide. The Service is subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.

2.13 Ownership and Risk of Loss. You will own the Device and bear all risk of loss of, theft of, casualty to or damage to the Device, from the time it is shipped to you until the time (if any) when it is returned to us in accordance with this Agreement.

2.14 No 0+ or Operator Assisted Calling; May Not Support x11 Calling. The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.

2.15 No Directory Listing. The phone numbers you obtain from us will not be listed in any telephone directories. Phone numbers transferred from your local phone company may, however, be listed. As a result, someone with your phone number may not be able to utilize a reverse directory to lookup your address.

2.16 Incompatibility With Other Services.
(a) Security Systems. The Service may not be compatible with security systems. You may be required to maintain a telephone connection through your local exchange carrier in order to use any alarm monitoring functions for any security system installed in your home or business. You are responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.
(b) Certain Broadband and Cable Modem Services. You acknowledge that the Service presently may not be compatible with some broadband services . You further acknowledge that some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.

3. CHARGES; PAYMENTS; TAXES; TERMINATION

3.1 Billing. Unless otherwise specified in the Master Services Agreement or service order, when the service is activated, you must provide us with a valid email address and a credit or debit card number from a card issuer that we accept. We reserve the right to stop accepting credit or debit cards from one or more issuers. If your credit or debit card expires, you close your account, your billing address changes, or your credit or debit card is cancelled and replaced on account of loss or theft, you must advise us at once. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which we decide to bill in arrears) to your credit or debit card, including but not limited to:

activation fees;
monthly Service fees;
international usage charges;
advanced feature charges;
equipment purchases;
termination fees; and
shipping and handling charges.

The amount of such fees and charges shall be published on our website and may change from time to time. Notification of monthly invoices will be sent to you via your email address on file with us. We reserve the right to bill at more frequent intervals if the amount you owe to us at any time exceeds $1,000. Any usage charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found on our website.

3.2 Billing Disputes. You must notify us in writing within seven days after receiving your credit or debit card statement if you dispute any Acuity charges on that statement or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to:

AcuityVOIP
ATTN: VOIP Disputes
442 W. Kennedy Blvd.
Suite 200
Tampa, FL 33606

3.3 Payment and Collection.
(a) Payment. We only accept payment by credit or debit card, unless other payment terms have been explicitly agreed to in writing by Acuity. Your subscription to the Service authorizes us to charge your credit or debit card. This authorization will remain valid until 30 days after we receive written notice from you terminating our authority to charge your credit or debit card, whereupon we will charge your credit or debit card for the termination fee, if applicable, and any other outstanding charges and terminate you Service. We may terminate your Service at any time in our sole and absolute discretion if any charge to your credit or debit card is declined or reversed, your credit or debit card expires and you have not provided us with a valid replacement credit or debit card or in case of any other non-payment of account charges.
(b) Collection. If your Service is terminated, you will remain fully liable to us for all charges pursuant to this Agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and attorney's fees. A 1% Fee will be accessed for payment by credit card/debit card.

3.4 Termination; Discontinuance of Service. We reserve the right to suspend or discontinue the Service generally, or to terminate your Service, at any time in our sole and absolute discretion. If we discontinue the Service generally, or terminate your Service without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month's charges. If your Service is terminated on account of your breach of any provision of this Agreement, you will be responsible for the 1/2 of the month's charges through to the end of the current term, including, without limitation, unbilled charges, plus the termination fee of $50, if applicable, all of which will immediately become due and payable. SEE provision 3.6.

3.5 Taxes. You are responsible for all applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to your credit card as set forth in this Agreement. If you are exempt from payment of such taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate. Taxes or fees may be adjusted periodically. A Regulatory fee will also be applied. The minimum fee is $2.50.

3.6 Termination Fee. Customer may terminate the Agreement before expiration of the Term by providing Acuity with written notice at least sixty (60) days in advance. In such event, Customer shall pay Acuity a mandatory early termination charge (the “Early Termination Charge”) equal to 50% of the monthly recurring charge and all associated fees and charges of the terminated Service multiplied by the number of months remaining in the Term. Customer hereby agrees that an Early Termination Charge is reasonable and fairly represents the amount of damages that Acuity will sustain as a result of such early termination and does not act as a penalty. Acuity will also charge Customer in its sole discretion the fair market value of any unreturned Equipment and the value of the Equipment returned damaged by Customer, in Acuity’s sole discretion, taking into consideration normal wear and tear.

3.7 MONEY BACK Guarantee; Limitations and Conditions.
(a) Money Back Guarantee. We offer Business subscribers a 30-day money back guarantee from the date of activation of Service. The money back guarantee applies only to the first-ordered service package, not to additional or secondary orders. We will NOT refund the activation fee (500-01 Hosted PBXSETUP, LNP Porting Fees) and/or any low voltage cabling required (ie. Ethernet, Cat5e, Cat6, Patch Panel or Hardware). Monthly charge money back guarantee for first month of Service provided that:

you have not exceeded 8000 minutes of local and/or long distance usage;
you cancel your Service within the 30-day period.
you cancel your Service within the 30-day period; and
you're not cancelling your Acuity service due to Internet provider outages, packet loss and/or customer-owned hardware (ex. switches, router)

Federal excise taxes and any other applicable taxes cannot be refunded. You will remain responsible for any charges for usage fees including but not limited to local or international usage, calls to Acuity toll free numbers and directory assistance. We reserve the right to terminate or revoke this money back guarantee at any time, without prior notice.

3.8 Payphone Charges. If you use our "Toll Free" feature or any toll free feature that we offer in the future, we will be entitled to recover from you any charges imposed on us either directly or indirectly in connection with toll free calls made to your number. We may recover these amounts by means of a per-call charge, rounded up to the next cent, or in such other fashion as we deem appropriate for the recovery of these costs.

3.9 Charges for Directory Calls (For example: 215-555-1212 or 411). Acuity does not offer 411 dialing by default. We will charge you $1.50 for each call made to directory assistance.

3.10 Charges for Conference Bridge Calls. Acuity will charge you .03 per minute for each caller who calls into the conference bride unless otherwise noted..

3.11 LATE FEE: A $3.95 late fee or 2% of the monthly invoice (whichever is greater) will be assessed if an invoice is not paid within 15 days of the Due Payment Date.

3.12 CREDIT CARD FEE: A 1% fee will be added if customer chooses to provide payment by credit card.

3.13 REGULATORY FEE: A regulatory fee is added to comply with all Federal and State Communication registrations and filings. The current fee is $4.25.

4. LIMITATION OF LIABILITY; INDEMNIFICATION; WARRANTIES

4.1 Limitation of Liability. We will not be liable for any delay or failure to provide the Service, including 911 Dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:

an act or omission of an underlying carrier, service provider, vendor or other third party;
customer equipment, network or facility failure;
customer equipment, network or facility upgrade or modification;
force events such as (but not limited to) acts of God, acts of nature, lightning strikes, fire, war, riot, acts of terrorism and government actions;
equipment, network or facility shortage;
equipment or facility relocation;
service, equipment, network or facility failure caused by the loss of power to you;
outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of the Service caused by any third party;
any act or omission by you or any person using the Service or Device provided to you; or
any other cause that is beyond our control, including, without limitation, a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications (including, without limitation, 911 Dialing) to be connected or completed, or forwarded.

Our aggregate liability under this agreement will in no event exceed the Service charges with respect to the affected time period.

4.2 Disclaimer of Liability for Damages. IN NO EVENT WILL ACUITY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.

4.3 Indemnification and Survival.
(a) Indemnification. You shall defend, indemnify, and hold harmless Acuity, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party or user of the Service, relating to the Services, including, without limitation, 911 Dialing, or the Device.
(b) Survival. The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive.

4.4 No Warranties on Service. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER ACUITY NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS, OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES DEVICES, OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THE SERVICE, WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OUR OR YOUR TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF ACUITY’S OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY ACUITY OR ACUITY’S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.

4.5 Device Warranties.
(a) Limited Warranty. Except as set forth herein, if you received the Device new from us and the Device included a limited warranty at the time of receipt, you must refer to the separate limited warranty document provided with the Device for information on the limitation and disclaimer of certain warranties. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation.
(b) No Warranty. If your Device did not include a limited warranty from us at the time of receipt, you are accepting the Device "as is". You are not entitled to replacement, repair or refund in the event of any defect.
(c) Disclaimer. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, WE MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE DEVICE OR ANY FIRMWARE OR SOFTWARE IS "ERROR FREE" OR WILL MEET CUSTOMER’S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE. DEVICE WARRANTIES DO NOT APPLY TO BUSINESS CUSTOMERS.

4.6 No Third Party Beneficiaries. No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.

4.7 Content. You will be liable for any and all liability that may arise out of the content transmitted by you or to any person, whether authorized or unauthorized, using your Service or Device (each such person, a "User"). You shall assure that you and your User's use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. We reserve the right to terminate or suspend your Services and remove your or your Users' content from the Service, if we determine, in our sole and absolute discretion, that such use or content does not conform with the requirements set forth in this Agreement or interferes with our ability to provide Services to you or others. Our action or inaction under this Section will not constitute any review or approval of your or Users' use or content.

4.8 Recording Conversations. Acuity provides a function that allows a user or Subscriber to record individual telephone conversations. The laws regarding the notice and notification requirements of such recorded conversations vary by state to state. Subscriber is solely responsible for applying the local laws in the relevant jurisdiction when using this feature. Example: State of Florida the user must notify the opposing person that the conversation is being recorded (Two Person Notification) or it is deemed illegal.

5. MISCELLANEOUS

5.1 Governing Law. The Agreement and the relationship between you and us is governed by the laws of the State of Florida without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 5.2, you shall submit to the personal and exclusive jurisdiction of the courts located within the State of Florida and waive any objection as to venue or inconvenient forum.

5.2 Mandatory Arbitration and No Jury Trial. Any dispute or claim between you, any member of your household or any guest or employee of you and us arising out of or relating to the Service or Device will be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration will take place in Hillsborough county, Florida. The arbitrator's decision will follow the plain meaning of the relevant documents, and will be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. All claims shall be arbitrated individually. You shall not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND AN AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL PROCEEDINGS IN HILLSBOROUGH COUNTY FLORIDA.

5.3 No Waiver of Rights. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.

5.4 Entire Agreement. This Agreement, including any future modifications as may occur within the terms of the Agreement, and the rates for Services found on our website constitute the entire agreement between you and Acuity and govern the use of the Service by you, members of your business, employees and guests. This Agreement supersedes any prior agreements between you and Acuity and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.

5.5 Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.

6. FUTURE CHANGES TO THIS AGREEMENT

We may change the terms and conditions of this document from time to time. The changes will also be listed on the Terms and Services page of http://www.thinkacuity.com/terms-of-service.

7. PRIVACY

Acuity Services utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Acuity is not liable for any lack of privacy which may be experienced with regard to the Service. Please refer to our website at www.thinkacuity.com for additional Privacy Policy information.

Last Updated: April 12th, 2017

VOIP Fraud Policy

This policy shall be in addition to Acuity’s VoIP Service Terms.

Customer is solely responsible for fraudulent calls or data transmitted utilizing the Services. Customer is solely responsible for selection, implementation and maintenance of security features for protection of data circuits and IP Addresses and against unauthorized calling, and AcuityVOIP LLC, a Florida Limited Liability Company (“Acuity”) shall have no liability therefor. Customer is solely responsible for payment of all long distance, toll and other telecommunications charges incurred through use of the Services being provided hereunder regardless of whether such use was intended or authorized by Customer.

Customer shall defend, indemnify and hold harmless Acuity from and against all costs, expenses, claims or actions arising from fraudulent use of data circuits, IP Addresses or fraudulent calls of any nature carried by means of the Services. Customer shall not be excused from paying Acuity for Services provided to Customer or any portion thereof on the basis that fraudulent calls comprised a corresponding portion of the Services.

In the event Acuity discovers fraudulent use of IP Addresses or fraudulent calls being made, nothing contained herein shall prohibit Acuity from taking immediate action, without notice to Customer, that is reasonably necessary to prevent such calls from taking place.

Notwithstanding the foregoing, it is understood that Acuity is under no obligation to investigate the authenticity of calls charged to Customer's account and shall not be liable for any fraudulent calls processed by Acuity and billed to Customer's account.

Customer Proprietary Network Information Policy

AcuityVOIP LLC (“Acuity”) is committed to maintaining the privacy of its customers. Acuity is obliged to provide Customer with protections to certain information about how Customer uses its Services. However, that information can help us customize and improve Services Acuity offers to Customer.

In this section, Acuity describes what information Acuity protects and how it is protected.

CPNI PROTECTIONS

As a customer of Acuity, Customer has the right, and Acuity has a duty, under federal law, to protect the confidentiality of certain types of Services, including: (1) information about the quantity, technical configuration, type, destination, location, and amount of Customer’s use of its Services, and (2) information contained on Customer’s telephone bill concerning the Services Customer receives. That information, when matched to Customer’s name, address, and telephone number is known as "Customer Proprietary Network Information," or "CPNI" for short. Examples of CPNI include information typically available from telephone-related details on Customer’s monthly bill, technical information, type of Service, current telephone charges, long distance and local Service billing records, directory assistance charges, usage data and calling patterns.

APPROVAL

From time to time, Acuity would like to use the CPNI information it has on file to provide Customer with information about Acuity’s communications-related products and Services or special promotions. Acuity’s use of CPNI may also enhance its ability to offer products and Services tailored to Customer’s specific needs. Accordingly, Acuity would like Customer’s approval so that Acuity may use this CPNI to let Customer know about communications-related Services other than those to which Customer currently subscribes that Acuity believes may be of interest to Customer. IF CUSTOMER APPROVES, CUSTOMER DOES NOT HAVE TO TAKE ANY ACTION; CUSTOMER’S SIGNATURE ON THE SERVICE AGREEMENT SIGNIFIES CUSTOMER’S CONSENT THAT ACUITY MAY USE AND DISCLOSE CPNI AS DESCRIBED HEREIN.

However, Customer does have the right to restrict Acuity’s use of Customer’s CPNI. CUSTOMER MAY DENY OR WITHDRAW ACUITY’S RIGHT TO USE CUSTOMER’S CPNI AT ANY TIME BY CALLING 813-769-5100. If Customer denies or restricts its approval for Acuity to use Customer’s CPNI, Customer will suffer no effect, now or in the future, on how Acuity provides any Services to which Customer subscribes. Any denial or restriction of Customer’s approval remains valid until Customer’s Services are discontinued or Customer affirmatively revokes or limits such approval or denial.

In some instances, Acuity will want to share Customer’s CPNI with its independent contractors and joint venture partners in order to provide Customer with information about Acuity’s communications-related products and Services or special promotions. Prior to sharing Customer’s CPNI with its independent contractors or joint venture partners, Acuity will obtain written permission from Customer to do so.

CUSTOMER AUTHENTICATION

Federal privacy rules require Acuity to authenticate the identity of its customer prior to disclosing CPNI. Customers calling Acuity can discuss their Services and billings with a Acuity representative once that representative has verified the caller's identity. There are three methods by which Acuity will conduct Customer authentication:

by having the Customer provide a pre-established password and/or PIN;
by calling the Customer back at the telephone number associated with the Services purchased; or
by mailing the requested documents to the Customer 's address of record.

Passwords and/or PINs may not be any portion of the Customer's social security number, mother's maiden name, amount or telephone number associated with the Customer's account or any pet name. In the event the Customer fails to remember their password and/or PIN, Acuity will ask the Customer a series of questions known only to the Customer and Acuity in order to authenticate the Customer. In such an instance, the Customer will then establish a new password/PIN associated with their account.

NOTIFICATIONS OF CERTAIN ACCOUNT CHANGES

Acuity will be notifying Customer of certain account changes. For example, whenever an online account is created or changed, or a password or other form of authentication (such as a "secret question and answer") is created or changed, Acuity will notify the account holder. Additionally, after an account has been established, when a Customer's address (whether postal or e-mail) changes or is added to an account, Acuity will send a notification. These notifications may be sent to a postal or e-mail address, or by telephone, voicemail or text message.

DISCLOSURE OF CPNI

Acuity may disclose CPNI in the following circumstances:

When the Customer has approved use of its CPNI for Acuity or Acuity and its joint venture partners and independent contractors (as the case may be) sales or marketing purposes.
When disclosure is required by law or court order.
To protect the rights and property of Acuity or to protect Customer and other carriers from fraudulent, abusive, or unlawful use of Services.
When a carrier requests to know whether Customer has a preferred interexchange carrier (PIC) freeze on its account.
For directory listing Services.
To provide the Services to the Customer, including assisting Customer with troubles associated with its Services.
To bill the Customer for Services.

PROTECTING CPNI

Acuity uses numerous methods to protect Customer’s CPNI. This includes software enhancements that identify whether Customer has approved use of its CPNI. Further, all Acuity employees are trained on the how CPNI is to be protected and when it may or may not be disclosed. All marketing campaigns are reviewed by a Acuity supervisory committee to ensure that all such campaigns comply with applicable CPNI rules.

Acuity maintains records of its own and its joint venture partners and/or independent contractors (if applicable) sales and marketing campaigns that utilize Customer CPNI. Included in this, is a description of the specific CPNI that was used in such sales or marketing campaigns. Acuity also keeps records of all instances in which CPNI is disclosed to third parties or where third parties were allowed access to Customer CPNI.

Acuity will not release CPNI during Customer-initiated telephone contact without first authenticating the caller's identity in the manner set-forth herein. Violation of this CPNI policy by any Acuity employee will result in disciplinary action against that employee as set-forth in Acuity’s Employee Manual.

BREACH OF CPNI PRIVACY

In the event Acuity experiences a privacy breach and CPNI is disclosed to unauthorized persons, federal rules require Acuity to report such breaches to law enforcement. Specifically, Acuity will notify law enforcement no later than seven (7) business days after a reasonable determination that such breach has occurred by sending electronic notification through a central reporting facility to the United States Secret Service and the FBI. A link to the reporting facility can be found at: www.fcc.gov/eb/cpni. Acuity cannot inform Customer of the CPNI breach until at least seven (7) days after notification has been sent to law enforcement, unless the law enforcement agent tells the carrier to postpone disclosure pending investigation. Additionally, Acuity is required to maintain records of any discovered breaches, the date that Acuity discovered the breach, the date carriers notified law enforcement and copies of the notifications to law enforcement, a detailed description of the CPNI breach, including the circumstances of the breach, and law enforcement's response (if any) to the reported breach. Acuity will retain these records for a period of not less than two (2) years.

NOTIFICATION OF CHANGES TO THIS POLICY

If Acuity changes this CPNI Policy, Acuity will post provide written notice to Customer so that Customer can be aware of what information Acuity collects, how Acuity uses it, and under what circumstances, if any, Acuity disclose it. If Customer decides to continue receiving its Services after Acuity makes any changes to this the CPNI Policy, Customer shall be deemed to have given express consent to the changes in the revised policy.