In consideration of providing voice, wireless, internet or any other service(s) Ally Communications, LLC. (” Ally Communications” or “the Company”) shall charge to the customers a periodic fee as stated in the Service Agreement. The periodic fee shall be subject to change upon thirty days written notice. As a user of Ally Communication, you agree that you are at least 18 years of age (or have permission from a parent or guardian to use this service) and will abide by the policies of Ally Communication. Ally Communication may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong. Violating any terms listed in this AUP may result in suspension or termination or your account without notice. Ally Communication reserves the right to refuse service to anyone.
- SERVICE(S): Services means provisioning of voices services, wireless services, internet access (including Shared Bandwidth and Dedicated lines), domestic, international and toll free termination and origination, conferencing, hosting, server collocation, hardware sales and all related customer support services.
- DEVICE(S) and EQUIPMENT: Devices and Equipment means any type of hardware (telephone, adapters, routers, modem, computers, servers, etc.). Devices and Equipment may be Customer owned or the property of Ally Communications.
- SOFTWARE: Software means any computer programs or code, software applications, and any other software provided by Ally Communications to Customer pursuant to this Agreement.
- SERVICES and INSTALLATION
- SERVICES: Ally Communications shall provide the service(s) to Customer on the terms and conditions set forth in this Agreement. Ally Communications’ obligations under this Agreement are expressly conditioned upon ACCESS TO PREMISES as specified below.
- DEVICE(S) and EQUIPMENT: Required Equipment. Customer understands and agrees that the Service requires certain equipment provided by Customer such as a sip aware access device, personal computer, an Ethernet card and an appropriate operating system (the “Customer Equipment”), as well as certain equipment provided by Ally Communications such as the Software, an edge access device, an IP phone or SIP gateway (the “Ally Communications Equipment”). Customer represents that it owns the Customer Equipment or otherwise has the right to use such equipment in connection with the service(s).
- OWNERSHIP OF EQUIPMENT: All Ally Communications Equipment and Software shall at all times remain the property of Ally Communications or its designee. Customer may not sell, transfer, lease, encumber or assign all or part of the Ally Communications Equipment or Software, nor shall Customer relocate the Ally Communications Equipment outside the Premises. Customer shall pay to Ally Communications the full manufacturer’s suggested retail price for the replacement of any lost, stolen, unreturned, damaged, sold, transferred, leased, encumbered or assigned Ally Communications Equipment or part thereof, together with any incidental costs incurred by Ally Communications relating to the replacement of the Ally Communications Equipment. Customer hereby authorizes Ally Communications to charge Customer’s Visa, MasterCard or other credit card and/or to electronically debit Customer’s bank account for any such charges. Ally Communications may, at its option, install new or reconditioned Ally Communications Equipment.
- ACCESS TO PREMISES: Customer authorizes Ally Communications and its employees, agents, contractors and representatives to enter Customer’s premises (the “Premises”) to install, maintain, inspect, alter, repair and remove the Ally Communications Equipment. All such services shall be conducted at a time agreed to with Customer. If Customer is not the owner of the Premises, upon Ally Communications’ request Customer shall supply Ally Communications with the owner’s name and address, evidence that the Customer is authorized to grant access to the Premises on the owner’s behalf, and (if needed) written consent from the owner of the Premises. Customer also grants its consent to Ally Communications to contact such owner for the purpose of entering into one or more Right of Access and/or Site Lease(s). If Customer does not provide access as provided herein, Ally Communications shall, at its option, a) declare the full amount for the entire term due and payable immediately, or b) elect to terminate this agreement.
- BACK UP REQUIREMENTS: The installation, use, inspection, alteration, maintenance, repair or removal of the Ally Communications Equipment and software may result in service outage or potential damage to Customer’s Equipment. If Customer does not back-up all existing computer files by copying them to another storage medium prior to such activities, Customer understands and accepts the associated risks of not making such a backup. IN ANY EVENT, EXCEPT AS SET FORTH IN CUSTOMER HARDWARE and SOFTWARE BELOW, ALLY COMMUNICATIONS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF THE CUSTOMER’S EQUIPMENT, PERIPHERALS, SOFTWARE OR DATA.
- NON-RECOMMENDED CONFIGURATIONS: Ally Communications has informed Customer of the recommended minimum computer hardware requirements, if any, (the “Minimum Requirements”) for efficiently operating the Service. If Customer allows the installation of the Service utilizing hardware that does not meet the Minimum Requirements (a “Non-recommended Configuration”), Customer agrees that (i) Customer shall not be entitled to Customer support relating to any issues other than the quality of the signal delivered to Customer’s IP phone or SIP gateway, and (ii) the following limitations of liability shall apply: ALLY COMMUNICATIONS DOES NOT REPRESENT OR WARRANT THAT A NON-RECOMMENDED CONFIGURATION WILL ENABLE CUSTOMER TO SUCCESSFULLY ACCESS, OPERATE OR USE THE SERVICE(S), NOT THAT ANY SUCH INSTALLATION WILL NOT CAUSE DAMAGE TO THE CUSTOMER’S EQUIPMENT, PERIPHERALS, SOFTWARE OR DATA. ALLY COMMUNICATIONS DOES NOT ASSUME ANY LIABILITY WHATSOEVER FOR ANY DAMAGE OR FAILURE TO INSTALL, ACCESS OR USE THE SERVICE. The foregoing limitation of liability is in addition to and shall not limit any other limitation of liability set forth in this Agreement.
- CUSTOMER HARDWARE and SOFTWARE: Except for gross negligence or willful misconduct by Ally Communications, Ally Communications shall have no liability whatsoever for any damage, loss or destruction to Customer’s Equipment or peripherals. In the event of such gross negligence or willful misconduct by Ally Communications, Ally Communications shall pay for the repair or replacement of the damaged parts up to a maximum of One Thousand Dollars ($1,000) and such amount shall be Customer’s sole remedy. ALLY COMMUNICATIONS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY SOFTWARE, FILES OR DATA. Customer acknowledges that the opening of Customer’s computer may void warranties provided by the computer manufacturer or other parties relating to the computer’s hardware or software. Customer consents to the opening of the computer for installing and providing the Service. ALLY COMMUNICATIONS SHALL HAVE NO LIABILITY WHATSOEVER AS THE RESULT OF THE VOIDING OF ANY SUCH WARRANTIES.
- TECHINAL SUPPORT: Ally Communication assumes that the user has a basic understanding of their computer. Ally Communication will not train users in basic computer skills such as, but not limited to deleting files or creating directories. Technical support is intended to facilitate the setup of your properly functioning computer system for access to our services. Your computer must recognize your modem or network card, and receive a dial tone or network link connectivity before any technical support will be dispensed.
- INSTALLATION and SOFTWARE LICENSES
- INSTALLATION PROCESS: Ally Communications or its agents will supply and install the Ally Communications Equipment within the Premises.
- FILE MODIFICATION: As part of the installation process, system files on Customer’s computer may be modified. Ally Communications does not represent, warrant nor covenant that such modifications will not disrupt the normal operations of Customer’s computer. For these and other reasons, Ally Communications recommends, and Customer agrees, that Customer will back-up all files in accordance with Section 2.5 above prior to installation of the Service. If Customer does not back-up all existing computer files, Customer understands and accepts the associated risks of not doing so. Ally Communications SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE RESULTING FROM THE ABOVE OR OTHER FILE MODIFICATIONS.
- VIRUSES: Ally Communications may run third party virus checking software on Customer’s computer prior to installing software and setting up the Service on Customer’s computer. Ally Communications does not represent, warrant nor covenant that the virus check software will detect or correct any or all viruses. If a virus or other harmful feature is detected, and Customer does not authorize Ally Communications to attempt to remove the same, the installation of the Service will be discontinued and this Agreement shall terminate. In addition, software or other content downloaded from the Service could contain a virus or other harmful feature, and it is Customer’s sole responsibility to take appropriate precautions to protect Customer’s computer from damage to its software, files or data. Ally Communications SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE.
- NON-EXCLUSIVE LISCENES: If Software is provided by Ally Communications, Ally Communications grants to Customer a limited, non-exclusive license to use the Software, in object code form only, solely for the purpose of connecting Customer’s computer(s) or device(s) to the service(s). This license will permit such use by Customer and any person authorized by Customer to use the Service, provided that Customer shall be responsible for all uses of the Service as provided in this Agreement. This license will commence upon Ally Communications’ acceptance of Customer’s subscription for the Service and will terminate immediately upon the expiration or termination of this Agreement for any reason. Customer will destroy all Software and any related written material, together with any copies, promptly upon the expiration or termination of this Agreement for any reason.
- COPIES: Customer may make a single copy of the Software solely for back-up purposes, provided that such copy contains the same copyright notices and proprietary markings as the original Software. Customer cannot engage in, nor permit, any other copying, or any translation, reverse engineering or reverse compiling, disassembly or modification of or preparation of any derivative works based on the Software, all of which are prohibited.
- END USER LISCENSES: Customer agrees to comply with the terms and conditions of all end user license agreements accompanying any software or plug-ins to such software distributed in connection with the Service. All end user licenses shall immediately terminate on the date that the Service expires or is otherwise terminated.
- FIXED MONTHLY USEAGE FEES: The cost for Services requiring a fixed monthly fee shall be as stated in the Customer Service Quote and shall be payable monthly, in advance, plus all applicable taxes, tariffs, governmental assessments, surcharges and fees (collectively, the “Fixed Service Fee(s)”). The Fixed Service Fee for the first month of Service shall be due and payable prior to installation of Service and if commencement of Service occurs on other than the first calendar day of the month then the Fixed Service Fee will be prorated by the number of calendar days remaining in the month. Thereafter, the Fixed Service Fee is due and payable in advance on the first day of each month and shall be considered late if not received by Ally Communications by the tenth calendar day of each month.
- VARIABLE MONTHLY USEAGE FEES: The cost for Services computed based on the usage by Customer and other variable factors shall be computed at the rates stated in the Customer Service Quote and shall be payable monthly, using a cut-off date selected by Ally Communications, in arrears, plus all applicable taxes, tariffs, governmental assessments, surcharges and fees (collectively, the “Usage Fee(s)”). The rates for voice services set forth in the Service Quote shall be valid for the initial term, provided however, all rates for International Services are subject to change on five calendar days’ notice from Ally Communications. New rates are automatically effective on the 6th day from the date of such notice. Ally Communications, upon 10 days’ notice, can adjust the rates for voice services to include the cost, if any, of tariffs, taxes or assessments imposed upon Ally Communications by any governmental agency. The Usage Fees are due and payable on the first day of the month billed and shall be considered late if not received by Ally Communications by the tenth calendar day of such month.
- INSTALLATION CHARGE and SECURITY DEPOSIT: The charge for Installation shall be as stated in the Service Quote and shall be due and payable prior to installation. Charges for Advanced Installation are detailed in the Service Quote. An equipment deposit for Ally Communications Equipment to be used in the Customer Premises shall be as stated in the Service Quote and shall be due prior to installation and shall be refunded to Customer upon termination of service, provided said Ally Communications Equipment is returned in good working condition.
- AGREEMENT TO PAY: Monthly payments and any other amounts due to Ally Communications may be charged to Customer’s Visa, MasterCard, American Express or other credit card, and/or electronically debited to Customer’s bank account, at Customer’s option. Customer agrees to pay all monthly Service Fees, Usage Fees, the Installation Charge, and Equipment Deposit. Customer hereby authorizes Ally Communications to charge Customer’s Visa, MasterCard or other credit card and/or to electronically debit Customer’s bank account for all such fees, charges, taxes and payment transaction processing costs. Payment is due on the date set forth in the invoice as the due date, and if no such date is identified, then no later than ten (10) days from the date of the invoice. Ally Communications billing cycle is the first to the last day of each month.
- LATE PAYMENT / FAILURE TO PAY: If any payment due to Ally Communications is not received within twenty (20) days from the date of the invoice, a late payment penalty in the amount of $20.00 be assessed monthly until the account is brought current. Accounts that are thirty (30) days past due will be deactivated and sent to collections and consequently, the Customer shall forfeit all telephone numbers associated with the account. If the Service is deactivated, Customer will be required to pay a reconnect fee of $150.00 in addition to all past due amounts before the Service is reconnected. The charges are intended to be a reasonable advance estimate of Ally Communications’ costs resulting from Customer’s late payments and non-payments, and is set in advance due to the difficulty inherent in determining the costs associated with any late payment or non-payment. Ally Communications does not anticipate that Customer will fail to make payments on a timely basis. Ally Communications does not extend credit to its Customer, and the charges are is not interest, a credit service charge nor a finance charge. In the event Ally Communications, at its sole discretion, elects to use the services of a third-party collection agency, the costs of such third-party collection agent shall be paid by the Customer.
- PRICE CHANGES: Ally Communications has the right to change its Service Fee at any time and upon 30 days’ advance notice unless otherwise stated in the Service Quote.
- ADDITIONAL CHARGES: The Service may allow Customer to access the Internet, on-line services and other information. Customer acknowledges that Customer may incur charges while using the Service in addition to those billed by Ally Communications. For example, Customer may incur charges as a result of accessing certain on-line services or purchasing or subscribing to certain other offerings. Customer agrees that all such charges, including all applicable taxes, are the sole responsibility of Customer.
- CREDIT INQUIRIES: Customer authorizes Ally Communications to make inquiries and to receive information about Customer’s credit experience from others, enter this information in Customer’s file, and disclose such information concerning Customer to appropriate third parties for reasonable business purposes. Ally Communications reserves the right, in its sole discretion, to refuse to provide Service based upon lack of creditworthiness, or in the alternative to require a security deposit that will be returned to Customer, without interest thereon, upon the expiration or termination of Services assuming all amounts due Ally Communications have been paid in full. Ally Communications shall have the right to offset against the security deposit, in part or in full, for any amounts due Ally Communications.
- ACCEPTABLE USE POLICY
- CUSTOMER CONDUCT: Customer agrees to abide by the Acceptable Use Policy. A copy can be found on our website at http://www.AllyAdvantage.com/Policies.
- SERVICE INTERUPTIONS
- PRORATED CREDIT: Except as otherwise required by law, Customer is entitled to a prorated credit upon request only in the event of a complete failure of the Service due to technical malfunction of the system or network operated by Ally Communications for a period of twenty-four (24) consecutive hours or more. To obtain a credit, Customer must request a credit in writing to Ally Communications within thirty (30) days of the failure. Credits shall be applied against future fees payable by Customer for the Service.
- FORCE MAJEURE: Ally Communications shall have no liability, including as set forth in this Section, for interruption of the Service due to circumstances beyond Ally Communications’ control, including, without limitation, acts of God, flood, natural disaster, regulation or governmental acts, fire, civil disturbances, strike or weather.
- AUTOMATIC RENEWAL and TERMINATION:
- CUSTOMER TERMINATION: In event of Customer’s early termination of this agreement prior to the expiration of any fixed term, Customer shall pay Ally Communications all charges for service provided through the effective date of such termination, plus 100% of the balance of the term’s Monthly Recurring Charges (MRC). It is agreed that Ally Communications’ damages, if services were terminated prior to the expiration of the Agreement Term, would be difficult or impossible to ascertain. Accordingly, the terms of this paragraph are intended as liquidated damages and not as a penalty in the event of early termination. Termination of service shall not relieve Customer of its obligation to pay all fees for service accrued and owing up to and including the date of termination or any other amount payable to Ally Communications. ANY TERMINATION NOTICE RECEIVED BY ALLY COMMUNICATIONS WHICH IS NOT ACCOMPANIED BY THE PAYMENT OF THE APPLICABLE TERMINATION FEE SHALL BE NULL AND VOID.
- COMPANY TERMINATION: Ally Communications may discontinue service or cancel an application for service, without incurring any liability, for any of the following reasons:
- Non-payment when due any sum payable to Ally Communications for service. Accounts that are thirty (30) days past due will be deactivated and sent to collections and consequently, the Customer shall forfeit all telephone numbers associated with the account.
- Violation of any law, rule, or regulation of any governing authority having jurisdiction over the service
- By order of a court or other governmental or quasi-governmental authority having such jurisdiction
- In the event service charges exceed the amount of any deposit which Ally Communications may have required or any established credit limit
- If Customer provides false or misleading credit information
- If, in the sole discretion of Ally Communications, Customer’s financial condition has deteriorated or if Customer is involved in any bankruptcy or similar proceeding
- In the event of any violation giving rise to a right of termination as set forth in AUP and T&C. This paragraph shall not operate to limit or waive any other rights Ally Communications may have.
CUSTOMER OBLIGATIONS: Customer agrees that upon termination of this Agreement;
- Customer will pay Ally Communications in full for Customer’s use of the Service and Ally Communications Equipment up to the later of (i) the effective date of termination of this Agreement or (ii) the date on which the Service and the Ally Communications Equipment have been disconnected and returned to Ally Communications. Customer agrees to pay Ally Communications on a prorated basis for any use by Customer of the Service or Ally Communications Equipment for a part of a month;
- Customer will permit Ally Communications, its employees, agents, contractors and representatives to access Customer’s Premises during regular business hours to remove the Ally Communications Equipment and other materials furnished by Ally Communications;
- Customer will ensure the return of all Ally Communications Equipment to Ally Communications. Customer will return or destroy all copies of any software provided to Customer pursuant to this Agreement. If the Ally Communications Equipment is not returned, Customer agrees to pay the charges referred to in Section 2.4 above and Ally Communications shall have the right to charge such amounts to Customer’s Visa, MasterCard or other credit card, or to electronically debit Customer’s bank account;
- Customer, upon request by Ally Communications made not more frequently than monthly, shall provide information regarding the number of desktop and/or portable computers connected to the Ally Communications Service during any month.
- SERVICE MINIMUM: As certain considerations and discounts were extended based on the service term, as indicated on the pages of the Service Order, Customer must maintain all service quantities unless changes are agreed upon by both parties.
There may be some content on the Internet or otherwise available through the Service which may be offensive to some individuals or which may not be in compliance with all local, state, or federal laws, regulations, and other rules. Ally Communications assumes no responsibility for the content contained on the Internet or otherwise available through the Service. All content accessed by the Customer through the Service is access and used by the Customer at Customer’s own risk and Ally Communications and each of its representatives, affiliates, subcontractors, employees, and agents, shall have no liability whatsoever for any claims, losses, actions, damages, suits, or proceedings arising out of or otherwise relating to access to such content by the Customer or the Customer’s employees, affiliates, agents, or representatives. Ally Communications specifically disclaims any responsibility for the accuracy, quality, and confidentiality of information obtained through the Service.
Customer acknowledges that Customer is executing this Agreement on behalf of all persons who use the Service and/or Ally Communications Equipment through Customer’s computer(s), phone systems, PBXs and other telecommunications equipment. Customer shall have sole responsibility for ensuring that all such other users understand and comply with the terms and conditions of this Agreement. Customer further acknowledges and agrees that Customer is solely responsible and liable for any and all breaches of the terms and conditions of this Agreement whether such breach is the result of use of the Service and/or the Ally Communications Equipment by Customer or any other user of Customer’s computer(s), phone systems, PBXs and other telecommunications equipment. Customer agrees to indemnify, defend and hold harmless Ally Communications against all claims and expenses (including reasonable attorneys’ fees) arising out of the use of the Service and/or Ally Communications Equipment by any other user of Customer’s computer(s), phone systems, PBXs and other telecommunications equipment.
- EXCLUSIONS: UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT OR OTHERWISE PROHIBITED BY LAW, NEITHER ALLY COMMUNICATIONS, IT’S OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, NOR ANY OWNER OR MANAGER OF THE BUILDING OR LAND IN WHICH CUSTOMER’S PREMISES IS LOCATED SHALL HAVE ANY LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR:
- ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF EARNINGS OR LOSS OF BUSINESS OPPORTUNITIES, RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, THE USE OF THE SERVICE BY CUSTOMER OR ANY OTHER USE OF THE ALLY COMMUNICATIONS EQUIPMENT OR SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGE RESULTING FROM OR ARISING OUT OF CUSTOMER’S RELIANCE ON OR USE OF THE SERVICE OR ALLY COMMUNICATIONS EQUIPMENT OR SOFTWARE, OR THE MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSION OR ANY FAILURE OF PERFORMANCE OF THE SERVICE OR ALLY COMMUNICATIONS EQUIPMENT OR SOFTWARE; OR
- ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES OR COSTS (INCLUDING LEGAL FEES) RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE ALLY COMMUNICATIONS EQUIPMENT OR SOFTWARE, OR SERVICE OR A THIRD PARTY INFRINGES UPON THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY OR OTHER INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY.
- APPLICATION: The liability limitations set forth in this Section 10 apply to the acts, omissions and negligence of Ally Communications (and its officers, directors, employees, agents, contractors and representatives) which, but for this provision, would give rise to a cause of action in contract, tort or any other legal doctrine. However, the liability limitations set forth in this section shall apply to liability for personal injury or death only to the extent applicable law does not prohibit such limitation.
- NO THIRD-PARITIES. No third-party owner or manager of Customer’s building or land is a party to this Agreement. Thus, no such owner or manager shall be responsible for, nor shall be liable for, the quality of the Service or Ally Communications Equipment.
- SOLE REMEDIES: Customer’s sole and exclusive remedies under this Agreement are as set forth in this Agreement.
- EXCLUSIONS: UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT OR OTHERWISE PROHIBITED BY LAW, NEITHER ALLY COMMUNICATIONS, IT’S OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, NOR ANY OWNER OR MANAGER OF THE BUILDING OR LAND IN WHICH CUSTOMER’S PREMISES IS LOCATED SHALL HAVE ANY LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR:
- MISCELLANEOUS: Choice of Law / Disputes: This agreement shall be governed by and construed in accordance with the substantive and procedural laws and practices of the State of Alabama, without giving effect to conflicts of law. Any action commenced hereunder, or relating to any relationship between the parties, shall be brought exclusively in a court of competent jurisdiction in the State of Alabama. If a dispute arises and Ally Communications refers this agreement to an attorney for collection, Customer shall pay all costs of investigation, enforcement, and collection, including interest, court costs, fees and attorney’s fees. Notwithstanding the cancellation or natural expiration of the term of this agreement, and to the fullest extent permitted by law, if Customer has accumulated unpaid charges, Ally Communications may refuse any request for release or other transfer of Local and Toll-Free numbers to a third party, and may reject any request for change in Toll-Free service to another carrier, including a change request from a Responsible Organization, without liability to Ally Communications, until such charges are paid in full to the date of termination of service. Ally Communications reserves the right to re-assign any terminated local or Toll-Free number(s).
- Waiver of Trial by Jury: The parties hereto hereby knowingly, irrevocably, voluntarily, and intentionally waive any rights to a trial by jury in respect of any action, proceeding, or counterclaim based on this Agreement or arising out of, under, or in connection with this agreement or any document or instrument executed in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written), or action of any Party hereto. This provision is a material inducement for Ally Communications and Customer entering into the subject transaction.
- Non-Waiver: No provision of this agreement shall be deemed waived, amended, or modified by Ally Communications unless such a waiver, amendment, or modification is in writing, signed by Ally Communications.
- Authority: Each party represents that it has the full right, power, and authority to enter into this agreement and to perform all of the obligations on its part contemplated herein.
- Notices: Except where otherwise stated herein, any notice required or permitted to be given under this agreement shall be in writing and shall be sent to the Customer at the mailing or e-mail address supplied on page 1 of this Service Order and Agreement, and to Ally Communications at 222 W Alabama St., Florence, Alabama, 35630, Attention: Director of Administration. Either party may, at any time, notify the other of a change of address for notices, by giving written notice in accordance with this Paragraph.
- Variances: The Terms and Conditions of this agreement shall prevail notwithstanding any variance with the Terms and Conditions of any order submitted by Customer or the terms of any other agreement between Customer and Ally Communications.
- Severability: If any provision of this agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.
- Assistance: If necessary, and if requested by Customer, Ally Communications will provide commercially reasonable assistance to Customer in obtaining necessary facilities from the local telephone company through which Customer may use Ally Communications service. Customer is responsible for such activity and is liable for any and all charges incurred therefore. Customer agrees to execute any additional documents necessary for the enforcement or operation of this Agreement.
- Construction: The parties acknowledge that they have reviewed, and/or had the opportunity to review, the Agreement with counsel, and have had all of its terms explained to them to their full and complete understanding and satisfaction. They further acknowledge that this agreement is the joint work product of the parties. Accordingly, in the event of ambiguities in this agreement, no inferences shall be drawn against either party on the basis of authorship of this Agreement.
- Headings: The headings in this agreement are for convenience of reference and shall not affect its construction or interpretation.
The Federal Communications Commission (“FCC”) requires that Ally Communications provide E911 Service to all customers who use Ally Communications services within the United States.
- CUSTOMER ACKNOWLEDGES THAT ALLY COMMUNICATIONS’ EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS IN THE SAME WAY THAT TRADITIONAL LAND LINE 911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION AND CUSTOMER HEREBY AGREES TO NOTIFY ANY POTENTIAL USER OF THE SERVICES, WHO MAY PLACE CALLS USING CUSTOMER’S SERVICES, OF THE 911 LIMITATIONS DESCRIBED HEREIN. ALLY COMMUNICATIONS WILL PROVIDE CUSTOMER WITH WARNING LABELS REGARDING THE LIMITATIONS OR UNAVAILABILITY OF 911 EMERGENCY DIALING. CUSTOMER AGREES TO PLACE A LABEL ON AND/OR NEAR EACH TELEPHONE OR OTHER CUSTOMER PREMISE EQUIPMENT ON WHICH THE SERVICES MAY BE UTILIZED. IF ADDITIONAL LABELS ARE REQUIRED, CUSTOMER MAY REQUEST THEM FROM ALLY COMMUNICATIONS. ALLY COMMUNICATIONS WILL PROVIDE CUSTOMER WITH ADVISORY NOTICES REGARDING 911 EMERGENCY DIALING AND REQUEST ACKNOWLEDGMENTS FROM CUSTOMER. CUSTOMER AGREES TO RESPOND AND AFFIRMATIVELY ACKNOWLEDGE THAT ALLY COMMUNICATIONS HAS ADVISED CUSTOMER OF THE CIRCUMSTANCES UNDER WHICH ALLY COMMUNICATIONS E911 SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON TO TRADITIONAL 911 EMERGENCY DIALING. ALLY COMMUNICATIONS ADVISES CUSTOMER TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
- CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
- CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION PROPERLY IF THERE IS AN INTERRUPTION OR A LACK OF BANDWIDTH OF CUSTOMER’S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE. (Adjust this to cover all our services?)
- CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMS INCLUDING HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, AND ENTERTAINMENT OR SATELLITE TELEVISION SYSTEMS. CUSTOMER HEREBY WAIVES ALL CLAIMS AGAINST ALLY COMMUNICATIONS FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
- ALLY COMMUNICATIONS E911 SERVICE IS A MANDATORY COMPONENT OF ALL INBOUND/OUTBOUND FAX AND VOICE SERVICE PLANS. E911 SERVICE IS NOT OFFERED ON INTERNATIONAL NUMBERS, TOLL FREE NUMBERS OR SIMILAR SERVICE ACCESSORIES OR ADD-ON PLANS. E911 SERVICE IS ONLY AVAILABLE IN SELECTED AREAS. CUSTOMERS WHO SUBSCRIBE TO ALLY COMMUNICATIONS E911 SERVICE WILL BE REQUIRED TO REGISTER THE PHYSICAL LOCATION OF THEIR EQUIPMENT (ATA or IP PHONE) WITH ALLY COMMUNICATIONS, EITHER ON THE ALLY COMMUNICATIONS USER PORTAL, INITIAL ORDER FORMS OR BY CALLING CUSTOMER SERVICE, AND AGREE TO UPDATE THE LOCATION WHENEVER THE PHYSICAL LOCATION OF SERVICE CHANGES. CUSTOMER ACKNOWLEDGES THAT ALLY COMMUNICATIONS’ ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER IS THE PHYSICAL LOCATION CURRENTLY REGISTERED FOR THE ACCOUNT. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY ALLY COMMUNICATIONS WILL BE BASED UPON THE PHYSICAL LOCATION PROVIDED TO ALLY COMMUNICATIONS BY CUSTOMER. IN THE EVENT THAT THE PHYSICAL LOCATION HAS NOT BEEN UPDATED OR IS NOT COMPLETE, ALLY COMMUNICATIONS MAY ATTEMPT TO ROUTE A 911 CALL BASED UPON THE BILL-TO OR SHIP-TO ADDRESSES ASSOCIATED WITH THE CUSTOMER’S ACCOUNT OR INITIAL ORDER.
- CUSTOMER ALSO ACKNOWLEDGES THAT ALLY COMMUNICATIONS E911 SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE. THESE CHARACTERISTICS MAY MAKE ALLY COMMUNICATIONS’ E911 SERVICES UNSUITABLE FOR SOME CUSTOMERS. BECAUSE EACH CUSTOMER’S CIRCUMSTANCES MAY VARY WIDELY, CUSTOMERS SHOULD CAREFULLY EVALUATE THEIR OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO RELY SOLELY UPON ALLY COMMUNICATIONS E911 SERVICE. CUSTOMER ACKNOWLEDGES THAT IT IS CUSTOMER’S RESPONSIBILITY TO DETERMINE THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET CUSTOMER’S EMERGENCY CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCY CALLS). THE FOLLOWING CHARACTERISTICS DISTINGUISH ALLY COMMUNICATIONS E911 SERVICE FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE:
- ALLY COMMUNICATIONS E911 SERVICE WILL NOT FUNCTION IF CUSTOMER’S ATA or IP PHONE FAILS OR IS NOT CONFIGURED CORRECTLY OR IF CUSTOMER’S ALLY COMMUNICATIONS SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGE, BROADBAND SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF BILLING OR OTHER ISSUES. IF THERE IS A POWER OUTAGE, CUSTOMER MAY BE REQUIRED TO RESET OR RECONFIGURE THE EQUIPMENT BEFORE BEING ABLE TO USE THE ALLY COMMUNICATIONS SERVICE, INCLUDING FOR E911 PURPOSES.
- AFTER INITIAL ACTIVATION OF THE E911 SERVICE, AND FOLLOWING ANY CHANGE OF AND UPDATE TO CUSTOMER’S PHYSICAL LOCATION, THERE MAY BE SOME DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR. THIS INFORMATION IS TYPICALLY POPULATED INTO ALLY COMMUNICATIONS’ NOMADIC E911 DATABASES PRIOR TO SERVICE ACTIVATION, BUT NO GUARANTEE CAN BE MADE THAT THE AUTOMATIC NUMBER AND LOCATION INFORMATION WILL BE ACTIVATED WITHIN THIS SCHEDULE.
- THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING ALLY COMMUNICATIONS E911 EMERGENCY SERVICE CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING THE ALLY COMMUNICATIONS E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON THE ALLY COMMUNICATIONS NETWORK, THERE IS A POSSIBILITY THAT AN ALLY COMMUNICATIONS E911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIA TRADITIONAL, LEGACY, CIRCUIT-SWITCHED TELEPHONE NETWORKS.
- IF A CUSTOMER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE THE ALLY COMMUNICATIONS EQUIPMENT WILL BE LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE, ALLY COMMUNICATIONS E911 COMMUNICATIONS MAY NOT BE DIRECTED TO THE CORRECT LOCAL EMERGENCY OPERATOR.
- CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT ALLY COMMUNICATIONS WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING ALLY COMMUNICATIONS OR TO ACCESS AN EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT. CUSTOMER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS ALLY COMMUNICATIONS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, CUSTOMER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO 911 DIALING.
- NO ASSIGNMENT ENTIRE AGREEMENT: Customer may not assign this agreement or resell, sublicense, or transfer any interest in the service without prior written consent from Ally Communications, which may be withheld in its sole discretion. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective affiliates, successors, and permitted assigns. This agreement, together with any attachments and the AUP, constitute the entire agreement and understanding between Customer and Ally Communications as to the subject matter hereof, and any prior or contemporaneous oral or written understandings, representations, promises, or agreements, and any of those subsequent to this agreement that do not properly amend it in accordance with the amendment provision herein, are void and of no force and effect. Customer may amend this agreement only by a writing signed by Ally Communications. This agreement may be supplemented or amended by Ally Communications at any time and effective immediately upon notice to Customer, either by mail, e-mail, or publication on Ally Communications’ website (www. Ally Communications.com). Customer is expected to review, understand, and comply with all such terms, and is deemed to have done so upon notice being provided.
Indemnification Obligation. Customer shall defend (with counsel reasonably acceptable to Ally Communications), indemnify and hold harmless Ally Communications and Ally Communications’ officers, directors, employees, agents, contractors and representatives from and against any and all claims and expenses, including reasonable attorneys’ fees).
Customer agrees that Ally Communications and/or its agents may, from time to time, collect information regarding Customer’s use of the Service and activities on the Internet. Customer agrees that such information may be shared with third parties provided that (i) Ally Communications does not disclose any personally identifiable information to others except, as allowed by law and (ii) otherwise complies with applicable privacy laws. Customer expressly grants Ally Communications the right to disclose information relating to Customer and/or Customer’s account in response to a subpoena issued in a civil or criminal investigation, litigation, court order or a civil investigation by a governmental entity.
- FRAUDULENT CALLS
In the event Customer connects the Services to the public switched network, Customer is solely responsible for selection, implementation and maintenance of security features for protection against unauthorized calling, and ALLY COMMUNICATIONS shall have no liability therefore. Customer is solely responsible for payment of long distance, toll and other telecommunications charges incurred through use of the Services being provided hereunder. Customer shall indemnify and hold ALLY COMMUNICATIONS harmless from all costs, expenses, claims or actions arising from fraudulent calls of any nature carried by means of the Services. Customer shall not be excused from paying ALLY COMMUNICATIONS 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 ALLY COMMUNICATIONS discovers fraudulent calls being made, nothing contained herein shall prohibit ALLY COMMUNICATIONS from taking immediate action, without notice to Customer that is reasonably necessary to prevent such calls from taking place. Notwithstanding, it is understood that ALLY COMMUNICATIONS 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 ALLY COMMUNICATIONS and billed to Customer’s account.
- CHOICE OF LAW: You and Ally Communication agree that the law of the State of Alabama, U.S.A. will apply to all matters relating to this Agreement and to Ally Communication, Inc. In addition, you and Ally Communication agree and consent that the courts of State of Alabama will have exclusive jurisdiction and be the exclusive venue for any legal actions relating to this Agreement or to the services provided hereunder. Customers agrees to defend, indemnify and hold harmless Ally Communication, its officers, directors, employees, agents and licensees, from any claims and expenses, including reasonable attorney’s fees, arising out of or relating to member’s use of Ally Communication service. If any part of this agreement is unacceptable to you, you must immediately terminate your membership with Ally Communication. This agreement shall automatically renew on the stated periodic basis unless terminated by either party giving the other thirty days written notice.
- NOTICES: All notices permitted or required under this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally, (ii) by commercially established courier service upon delivery or, if the courier attempted delivery on a normal business day and delivery was not accepted, upon attempted delivery, (iii) by facsimile transmission when confirmed by facsimile transmission, or (iv) by certified or registered mail, return receipt requested, ten (10) calendar days after deposit in the mail. Such notices shall be sent to the addresses set in the Services Quote or such other address as a party hereto shall notify the other party of in writing.
To Ally Communications:
222 W Alabama St.
Florence, AL 35630
Attention: Billing Dept.
Telephone: (256) 648-4010
Facsimile: (855) 648-4010
- COUNTERPARTS: This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
- HEADINGS: The headings in this Agreement are inserted for convenience and do not constitute a part of the Agreement, nor modify or limit any of the terms.
- WAIVER; AMENDMENT; MODIFICATION: No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed by the party against whom such waiver or consent is asserted. The waiver by either party of, or consent of either party to, a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of, consent to, or excuse of any other or subsequent breach by the other party. This Agreement may be amended or modified only by mutual agreement of authorized representatives of the parties in writing.
- ENFORCEABILITY OF PROVISIONS: To the extent any provision or portion of this Agreement is determined to be invalid, illegal or unenforceable, such provision or portion shall be severed or deleted from this Agreement or limited so as to give effect to the intention of the parties insofar as possible. The invalidity or unenforceability of any provision or portion hereof shall not affect the validity or enforceability of any other provision or this Agreement as a whole.
- ASSIGNMENT: Ally Communications may assign its rights and obligations under this Agreement to any party without the consent of Customer. Customer may not assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of Ally Communications.
- ENTIRE AGREEMENT: This Agreement, including the Services Quote, Service Terms, AUP, and attachments hereto, constitutes the entire agreement between the parties regarding its subject matter. This Agreement supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. No other representation, warranty, term or condition, other than as expressly set forth in this Agreement, shall be binding on Ally Communications.
- REVISIONS TO THIS DOCUMENT: Ally Communication reserves the right to revise, amend, or modify this T&C and our other policies and agreements at any time and in any manner. Notice of any revision, amendment, or modification will be posted in accordance with the service