We have a long history of maintaining the privacy of information we obtain in the normal course of providing our services. We work hard to serve you through new and exciting products and services. In the process, we remain sensitive to privacy issues. ATC is the sole owner of the information collected on this site. The information we obtain from you is generally necessary for us to provide your services and design new services for your future use. For example, we need to know your name, address and the services you buy from us to properly provide and bill for those services. When you call us, our representatives pull up account records and may refer to your bill, your calling patterns, and other information we have to answer questions you may have or recommend how we can best serve you.
We may also use information in our records to protect our customers, employees or property--for instance, to investigate fraud, harassment or other types of unlawful service activities involving ATC or other carriers that we do business with. In some cases, it may be necessary to provide this information to the government or third parties who make a lawful demand for it.
A cookie is a piece of data stored on the user's hard drive containing information about the user. Usage of a cookie is in no way linked to any personally identifiable information while on our site. Once the user closes the browser, the cookie simply terminates. However, by saving information and thus setting a cookie on our site a user's password can be saved and thus save time when visiting our site. Where users reject cookies they may still use our site, but may be limited in some areas of our site. Cookies can also enable us to track and target the interests of our users to enhance the experience on our site.
Disclosure of Account Information
ATC will not sell or trade your personally identifiable information or Customer Proprietary Network Information ("CPNI") unless we are authorized to do so by you or applicable law.
If you tell us in writing to release your account information to a third party we will honor your request and provide that information.
Your account information is released to other carriers when you give us your permission or when the carrier advises us it has your approval to access the information in accordance with applicable law. This most often occurs with respect to a sale of service the carrier has or intends to make. Unless we are advised that permission from you has been granted in accordance with applicable law, we do not release the information.
We may provide account information to collection agencies when customers do not pay their bills. We restrict the use of this information to collection activities related to our charges.
As a general rule, ATC does not release customer account information to unaffiliated third parties without your permission, unless we have a business relationship with those companies where the disclosure is appropriate. For example, we may hire outside companies as contractors or agents, or be engaged in a joint venture or partnership with another company. Upon occasion, ATC may decide to stop providing a service or may decide to sell or transfer parts of our business to unaffiliated companies. When this happens, we may provide confidential customer information to these companies so that they can continue to provide and/or offer you the same or similar services. In all of these situations, we provide information to these other companies only as needed to accomplish our business objectives; these companies are similarly bound by requirements to keep ATC customer information confidential.
There are certain exceptions to the general rule noted above. For example, we might provide information to regulatory or administrative agencies so that they can accomplish their regulatory tasks (for example, responding to a customer complaint) or to maximize the efficiencies of our own processes (such as getting mailing addresses correct, for example). Other disclosures will be driven by legal requirements imposed on ATC, such as compliance with "legal process," such as a subpoena or court order or other similar demand, associated with either criminal or civil proceedings.
In certain circumstances, other carriers may use ATC to bill for their charges. In this case, the carriers provide us with information about you, including your call logs and calling patterns, and we bill you on their behalf. In turn, we provide them with non-sensitive information about your service, such as the date your service was established or disconnected, whether you have toll or 900 blocking services, whether you have a calling card and when it was issued, how you pay your bills and if they are paid on time.
ATC uses reasonable administrative, technical, and physical safeguards to protect the personally identifiable information collected about its customers. However, as effective as modern security practices are, no physical or electronic security system is impenetrable. ATC cannot guarantee the security of its systems or databases, nor can ATC guarantee that information supplied by you will not be intercepted while being transmitted over the Internet. ATC is not responsible for the unlawful or unauthorized actions of third parties.
Your Control Over the Disclosure of Information
You tell us the telephone listings you want to include in our directories and in directory assistance. You also may choose to have a non-published or non-listed number, or to exclude your address from your listing.
If and when the ATC web site contains links to other sites ATC is not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of each and every web site that collects personally identifiable information. This privacy statement applies solely to information collected by ATC.
ATC takes every precaution to protect our users' information. When users submit sensitive information via ATC's web site, your information is protected both online and off-line.
Furthermore, ALL employees are kept up-to-date on our security and privacy practices. Every quarter, as well as any time new policies are added, our employees are notified and/or reminded about the importance we place on privacy, and what they can do to ensure our customers' information is protected.
Notification of Changes
AGREEMENT. The services, products and equipment referenced in these Terms and Conditions (“Service” or “Services”) are offered to Customer by American Telephone Company on behalf of itself and its operating affiliates (“ATC”). Customer shall contract for Service under a written, signed Master Service Agreement (“MSA”), which incorporates these Terms and Conditions by reference. The MSA together with these Terms and Conditions shall constitute an agreement under which Customer purchases the Services from ATC (“Agreement”). These Terms and Conditions may be modified by ATC any time at ATC’s sole discretion. ATC shall publish any changes to these Terms and Conditions on ATC’s website (www.americantelephonecompany.com) at least ten (10) days in advance of their taking effect. Customer shall be bound by changes after they become effective.
SERVICES/TERM. Customer agrees to purchase Services from ATC for the term set forth on the MSA (“Initial Term”). The “Term” of the Agreement shall begin on the Service Commencement Date, as defined below, and shall include the Initial Term plus any and all renewal periods. The Agreement shall become effective on the Service Order Date, as defined below, and shall continue in full force and effect for the Term stated herein. The Agreement, upon expiration, will be automatically and continually renewed for a period equivalent to the Initial Term, unless customer delivers written notice of its intent to terminate the Agreement at least sixty (60) days prior to the end of the Term. Customer hereby waives any notice that might be required by law relating to the automatic renewal clause inherent in this agreement.
Service Commencement Date. ATC will notify Customer that the Services are installed or connected and available for use. The date of such notice shall be the “Service Commencement Date.” The “Service Order Date” is the date the MSA was signed by the Customer.
Rates and Charges. The “Rates and Charges” for the Services shall be those set forth in (1) the fee schedules of the MSA, (2) amendments, supplements, or exhibits to the fee schedule, (3) tariffs, and (4) publicly posted terms and conditions, including without limitation those posted on ATC’s website, as applicable and as amended from time to time. For any Service provided to Customer for which a rate is not specified in the MSA, the rate set forth in the applicable tariff or the publicly posted terms and conditions shall apply. ATC retains the right to change, increase or decrease from time to time, in its discretion and without liability to Customer, the methods, processes and/or the suppliers by which ATC provides Services to Customer. ATC may also modify service and rate offerings upon ten (10) days’ notice of the intended change.
Service Activation. A fee of $200.00 will be assessed if Customer cancels a scheduled service activation appointment within 24 hours of the prescheduled date and time requested by Customer. If a scheduled service activation appointment is not canceled and is missed by Customer, Customer will be assessed a fee of $300.00.
Service Order Charge.
Customer’s requests for changes in service will be charged a one time Service Order Charge. A Service Order Charge applies per customer order for each work order or services ordered to be provided at one time, on the same premises, for the same customer. The charge recovers the cost of receiving, recording, and processing a customer’s request for a change in service. The Service Order Charge applies for connections, moves, changes of equipment or service, changes in domains, changes in bandwidth of EVC’s or ports, changes of telephone number/s, changes of IP addresses and installation, connection, initial or other except where otherwise specified.
Billing and Payment. Customer shall pay the Rates and Charges, as well as all applicable taxes, fees, and surcharges when due. Customer shall pay all ATC invoices upon receipt. Any undisputed invoiced amounts not paid within thirty (30) days after the date listed on the invoice (“Invoice Date”) shall subject to a late payment fee equal to 1.5% of the unpaid balance due. Customer must provide ATC with written notice of any disputed invoiced amounts within ninety (90) days of the Invoice Date, providing a clear written statement explaining the basis for each and every such dispute and all relevant documentation within Customer’s possession or otherwise available to Customer. If Customer fails to provide such notice, Customer shall be deemed to have waived any and all rights to dispute the invoiced amounts. Where Customer disputes less than the entire charges on a particular invoice, Customer remains obligated to pay all undisputed charges of an invoice, including without limitation taxes, surcharges, fees and late payment fees associated with the undisputed charges, in accordance with the foregoing terms. ATC will review all timely disputes of Customer in good faith. In the case a Customer’s timely dispute cannot be resolved with mutual satisfaction between ATC and Customer, Customer may pursue dispute resolution under the provisions set forth herein.
Dispute Resolution. Customer acknowledges and agrees that any dispute between Customer and ATC arising out of or relating to this Agreement or the ATC services provided hereunder will be resolved through binding arbitration. Customer further agrees that any dispute Customer has against ATC cannot be joined with the dispute of any other person or entity in a lawsuit, arbitration or any other proceeding, or resolved on a class-wide basis. Before initiating or participating in any such arbitration, Customer must notify ATC in writing of such a dispute and give ATC at least 60 days (from the time the Customer first notifies ATC in writing) to resolve the dispute. If the Customer and ATC are unable to resolve its dispute within 60 days of notifying the other party of its dispute, either party may request arbitration of the dispute through JAMS. The arbitration will be conducted in the State of New York, New York County, pursuant to the Commercial Arbitration Rules of the American Arbitration Association, as such rules are in effect on the date of commencement of the arbitration, and as such rules are modified hereunder. The arbitration will be based only on the written submissions of the parties and documents submitted to the arbitrator, unless the parties agree or the arbitrator orders otherwise. The arbitrator shall have no authority to award punitive, exemplary, consequential, indirect, incidental or similar damages, or attorneys’ fees. The arbitrator’s decision shall be final and binding upon ATC and Customer, and judgment on the arbitrator's award may be entered in any court of competent jurisdiction. All post-award proceedings will be governed by the United States Arbitration Act, 9 U.S.C. 1-16 et seq. All administrative fees and expenses of arbitration, including the fees and expenses of the arbitrator, will be divided equally between the Customer and ATC. Each party must pay its own expenses associated with any arbitration, including without limitation attorneys’ fees. Unless otherwise provided by applicable law, any dispute or claim arising out of or relating to the Agreement or services provided by ATC must be brought within two (2) years after the date on which the basis for the dispute or claim first arises.
Master Service Agreement Charges. Customer commits to pay to ATC the minimum monthly fees set forth on the MSA (“Minimum Fee”). On a monthly basis, Customer agrees to pay ATC the greater of (i) the total amount due for all Services provided by ATC to Customer at the rates set forth in the Agreement, or (ii) the Minimum Fee. Customer accepts responsibility for the rates, charges, taxes, usage fees, and surcharges associated with all use of Services provided by ATC, regardless of whether Customer authorized the use. ATC shall not be liable whatsoever for the use, misuse or abuse of a Customer’s service by third parties.
Taxes, Fees, and Surcharges. Customers will be assessed a monthly surcharges and fees on the use of the Services, as required and/or permitted under applicable law. Surcharges and fees to recover administrative costs associated with ATC’s regulatory compliance may also be assessed. As the level of applicable surcharges and fees are modified by governmental authorities on an ongoing basis and the level of costs associated with administrative compliance may change, the amount of the surcharges and fees assessed by ATC to Customer are subject to change on an ongoing basis. Customer shall be responsible for payment of all federal, state and local taxes, fees, and surcharges relating to the sale, transfer of ownership, installation, license, use, or provision of Services provided by ATC, including but not limited to USF, PICC, 911, E911, LNP, TRS, MTA, GRT, SLC, EUCL,NANP, payphone surcharges and regulatory recovery fees, as required or permitted by applicable law, regulation, tariff, or publicly available terms and conditions, including those posted on ATC’s website (www.americantelephonecompany.com).
Facilities. In the event ATC is required to construct and or acquire telecommunications related facilities to provide Services to Customer, Customer acknowledges and agrees that ATC will incur significant costs. In addition to any other rights and remedies ATC may have, Customer agrees that if Customer cancels, terminates or breaches the Agreement after ATC incurs costs for such construction or acquisition but prior to the end of the Term, Customer will be required to reimburse ATC for all reasonably incurred costs associated with the construction or acquisition of such facilities. If in the event such construction or acquisition of facilities is required ATC reserves the right to cancel the Agreement prior to incurring any construction charges.
Termination. ATC may terminate the Agreement for convenience upon sixty (30) days written notice. ATC may terminate the Agreement or suspend Service upon fifteen (15) days written notice, if Customer breaches the Agreement and Customer fails to cure the breach within such notice period; provided, however, that the termination and cure period for breach of any of Customer's payment obligations shall be only ten (10) days. ATC may terminate the Agreement immediately upon written notice to Customer if (i) Customer dissolves or becomes insolvent or bankrupt; (ii) Customer makes an assignment for the benefit of creditors; (iii) Customer suspends the transaction of its usual business or consents to the appointment of a trustee or receiver; (iv) a trustee or receiver of Customer is appointed; (v) any bankruptcy, reorganization, insolvency or similar proceeding is instituted by or against Customer; or (vi) Customer or a third party uses the Services provided by ATC in violation of the Agreement or applicable law. Customer further understands and agrees that any breach by Customer of its obligations under this Agreement shall also be deemed a breach by Customer of its obligations under any other agreements it (or any Customer affiliate) has entered into with ATC and understands and agrees that any such breach shall authorize ATC to suspend performance under, and or terminate, said agreements with Customer (or Customer's affiliates) pursuant to the terms of this Agreement. ATC shall not be liable for any special, incidental or consequential damages whatsoever incurred by Customer while Service is suspended or terminated for non-payment.
Termination Liability. If Customer terminates the Agreement for any reason whatsoever or if the Customer’s service is terminated by ATC for any reason other than convenience after the Service Commencement Date and prior to the expiration of the Term, Customer will be liable to ATC for termination charges as follows: Customer shall pay ATC, immediately upon demand, all sums due and unpaid plus an amount equal to the Minimum Fee multiplied by the amount of months remaining in the Term together with any and all previously waived or credited installation fees and one-time credits.
Acceptable Use Policy. Customer must use the Services in accordance with this Agreement and all applicable laws, regulations and policies. Use of the Services for any purpose that is unlawful, or in any manner which could damage, disable, overburden or impair the operation of the Services of ATC or other communications providers, or in any other way that negatively impacts ATC is strictly prohibited. Without limitation, Customer may not (a) attempt to use or gain unauthorized access to data, accounts, hosts, servers, systems or networks of others, nor relay communications through any third party servers without the owner’s authorization, (b) probe, scan or test the vulnerability of ATC’s Services or network, (c) interfere with the Services or another’s use of ATC services in any way, (d) use any forged, false or misleading number identity or employ techniques to hide, obscure or counterfeit the source of a call or other communication, (e) collect or use information without the consent of the owner, (f) engage in conduct that is likely to result in retaliation against ATC, its network, Services, employees, officers or other agents, (g) configure the Services in a manner that prevents E911 services from operating properly, (h) resell Services that are not available for resale, or (i) use the Services to violate telemarketing or other marketing laws or regulations.
1.1 “Service” – shall mean American Telephone Company, LLC’s broadband phone service provided by American Telephone Company, LLC under the pricing plan that you have selected.
1.2 “Device” – shall mean a American Telephone Company, LLC-provided telephone, telephone adapter, or router.
1.3 “Fax Broadcasting” and “Fax Blasting”– shall mean sending the same message by fax to six (6) or more recipients at the same time, one after another.
2. Unlimited Voice Services. American Telephone Company, LLC reserves the right to periodically review usage levels of unlimited minute service plans to ensure that you are not using such service in violation of this AUP and if such an abuse or violation is discovered to terminate or adjust the plan as appropriate. You agree to use the unlimited minute service plans for traditional voice or fax call of a duration comparable to that of the average residential or small business customer presently utilizing American Telephone Company, LLC’s service and will not employ methods, devices or procedures to take advantage of unlimited plans by using the voice or fax services excessively or for means not intended by American Telephone Company, LLC. Excessive use is defined by American Telephone Company, LLC as use that substantially exceeds the average call volume or duration used by all other American Telephone Company, LLC unlimited plan customers, and attempting to originate or terminate multiple concurrent phone calls through any single line of service. The following types of services are specifically prohibited and may not be accessed through American Telephone Company, LLC’s unlimited voice service plan: conference calling, monitoring services, data transmissions, transmission of broadcasts or transmission of recorded material. American Telephone Company, LLC may terminate your service or change your service plan if, in its sole discretion, American Telephone Company, LLC determines that your use of the unlimited plan violates this prohibition or is otherwise “unreasonable” or results in abuse of the unlimited minute service plan.
2.1. We consider your use of our Service to be “unreasonable” and therefore subject to immediate termination if you:
2.1.a. re-sell, re-brand, re-supply, re-market or commercially exploit our Unlimited Service, without our written consent, in order to aggregate traffic from more than one customer over an "unlimited" line or trunk;
2.1.b. set up routing functionality such that only outbound long-distance traffic is sent over the Unlimited Service; or
2.1.c. engage in any other conduct which is fraudulent, illegal, harassing or results in significant network congestion, or degradation.
2.2. We consider your use of our Service to be “abusive” and subject to immediate termination or adjustment if you utilize:
2.2.a. Autodialing, predictive-dialing, or robo-dialing.
2.2.b. Continuous, repetitive or extensive call forwarding
2.2.c. Harassing, threatening or abusive calls.
2.2.d. Unsolicited calls if such unsolicited activities could reasonably be expected to, or actually do in fact, provoke complaints.
2.2.e. False information for you or any users of the Service.
2.2.f. Continuous or extensive chat line or conference call participation.
2.2.g. Free conference calling or similar services that participate in traffic simulation practices or schemes that result in excessive charges.
2.2.h. Repetitive and/or continuous messaging or calling to the same destination number if such activity could reasonably be expected to, or in fact actually does, provoke complaints.
2.2.i. Long duration calls (defined as calls to the same number in excess of four hours (continuous or cumulative) within a 24-hour period) and/or calls placed to specific numbers/destinations for the purpose of generating charges or fees for or with a third party.
2.2.j. calls that do not consist of uninterrupted live human voice dialog by and between natural human beings.
2.2.k. Continuous call session connectivity
2.2.l. Fax Broadcasting
2.2.m. Fax Blasting
2.2.n. Telemarketing; or
2.2.o. Any other activity that would be inconsistent with reasonable personal, residential and business use patterns, causes network congestion or jeopardizes the integrity of American Telephone Company, LLC’s network.
2.3 Short Duration Calls: American Telephone Company, LLC reserves the right to charge all short duration calls (calls under 10 seconds in length) a ten-cent (10¢) per call assessment if American Telephone Company, LLC determines, in its sole discretion, that you have an excessive volume (more than 10% of your total calls in any given month) of calls that consist of such short duration calls. You agree that calls, as defined herein for billing purposes, shall include all call traffic when accepted by American Telephone Company, LLC or its underlying carriers for termination whether such calls are terminated or not for any reason (“incomplete calls”). American Telephone Company, LLC will bill you for all calls completed to American Telephone Company, LLC’s facility or equipment or that of American Telephone Company, LLC’s underlying carriers regardless if the call is completed to the called party. Accordingly, you understand your obligations in regards to incomplete calls and agrees that American Telephone Company, LLC shall incur no liability as a result of or, in relation to, said incomplete call.
3. Lawful purposes only. You may not use our Service or your Device in any way that is illegal, improper or inappropriate. A non-exhaustive list of examples of illegal, improper or inappropriate uses of our Service and/or Devices includes:
3.1. Interfering with our ability to provide Service to you or other customers, or avoiding your obligation to pay for the Service within the timeframe designated for payment.
3.2. Use of the Service to threaten, abuse, harass, defame, deceive, defraud, interfere or invade another’s privacy or engage in any similar behavior.
3.3. Use our Service or your Device for: auto-dialing; continuous, repetitive or extensive call forwarding, telemarketing (including charitable or political solicitation or polling), fax or voicemail broadcasting or blasting.
3.4. Use our Service or your Device to: impersonate another person; send bulk unsolicited messages; use robots, data mining techniques, or other automated Devices or programs to catalog, download, store, or otherwise reproduce or distribute information from our Service or use any automated means to manipulate our Service.
3.5. Violate any law, rule, or regulation; violate any third party’s intellectual property or personal rights; or exceed your permitted access to our Service.
3.6. Use the Service for transmitting or receiving any communication or material of any kind which would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or encourage conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law.
4. Right of Termination. In addition to American Telephone Company , LLC’s right to terminate service for non-payment, American Telephone Company , LLC reserves the right to terminate the Service immediately and without advance notice if American Telephone Company , LLC, in its sole discretion, believes that you have violated any of the above restrictions, leaving you responsible for the full month’s charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee and any penalties, all of which immediately become due and payable.
5. Monitoring. We may monitor the use of our Service for violations of this agreement. We may, without liability, remove or block all communications if we suspect a violation of this agreement, or if we think it necessary in order to protect our Service, or American Telephone Company, LLC, its parent, affiliates, directors, officers, agents, and employees from harm.
5.1. Providing information to authorities and third parties. If we believe that you have used our Service or your 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 consent to our forwarding of any such communications and information to these authorities. In addition, we may disclose your name, telephone number, credit card information, and other personal information, any communications sent or received by you, and any other information that we may have about your account, including but not limited to, types of service, length of service, MAC address(es), IP address(es), email address(es), registered 911 address, and all other account information, as follows: in response to law enforcement or other governmental agency requests; as required by law, regulation, rule, subpoena, search warrant, or court order; as necessary to identify, contact, or bring legal action against someone who may be misusing the Service, the Device, or both; to protect American Telephone Company , LLC’s rights and property; or in emergency situations where disclosure of such information is necessary to protect American Telephone Company , LLC customers or third parties from imminent harm.
5.2. Use of Service and device by Customers Outside the United States. While American Telephone Company, LLC encourages use of the Service within the United States to other countries, American Telephone Company, LLC does not presently offer or support the Service to customers located in any countries other than the United States. American Telephone Company, LLC’s Services are only for use by persons or entities whose primary residence or business address is in the United States. American Telephone Company, LLC’s Services are designed to work generally with unencumbered high-speed internet connections. However, if the high-speed internet connection you are using is outside the United States and/or your ISP places restrictions on the usage of VoIP services, American Telephone Company, LLC does not represent or warrant that use of the Service by you is permitted by any other jurisdictions or by any or all the ISPs. If you remove the device to a country other than the United States or use the Service from there, you do so at its own risk, including the risk that such activity violates local laws in the country where you do so. You will be solely responsible for any violations of local laws and regulations or violations of ISP terms of service resulting from such use. American Telephone Company, LLC reserves the right to disconnect Services immediately if American Telephone Company, LLC determines, in its sole and absolute discretion, that you have used the Service or the device in violation of applicable laws, including without limitation laws of jurisdictions outside the United States. You are solely liable for any and all use of the Service and/or device by any person making use of the Service or device provided to you.
5.3. No Transfer of Service. You may not resell or transfer your Service or your Device or provide a telephone service to anyone else by using your American Telephone Company, LLC service or features of your American Telephone Company, LLC service without first obtaining our prior written consent.
5.4. No Alterations or Tampering. If you copy or alter or have someone else copy or alter the firmware or software of the Device in any way that facilitates a compromise of your service, you are responsible for any charges that result. You may not attempt to hack or otherwise disrupt our Service or make any use of our Service that is inconsistent with its intended purpose.
5.5. Theft of Service. You may not use or obtain our Service in any manner that avoids American Telephone Company, LLC policies and procedures, including an illegal or improper manner. You will notify us immediately in writing if your Device is stolen or if you believe that your Service is being stolen, fraudulently used, or otherwise being used in an unauthorized manner. When you notify us of one of these events, you must provide your account number and a detailed description of the circumstances of the theft, fraudulent use, or unauthorized use of Service. If you fail to notify us in writing in a timely manner, we may disconnect your service and levy additional charges on you. Until you notify us in writing, you will remain liable for all use of our Service using a Device stolen from you and any and all stolen, fraudulent or unauthorized use of the Service up through the date notice is received by American Telephone Company, LLC.
Personal Abuse. Personal threats, sexual harassment, profanity and vulgarities of any sort directed toward ATC personnel are a violation and grounds for termination of the Agreement. If terminated under this provision, Customer shall be responsible for the termination charges set forth above.
No Warranty. ATC WARRANTS THAT THE SERVICES WILL BE PERFORMED IN A PROFESSIONAL MANNER, PURSUANT TO GENERALLY ACCEPTED INDUSTRY STANDARDS AND PRACTICES FOR SIMILAR SERVICES; PROVIDED, HOWEVER, THAT CUSTOMER UNDERSTANDS AND AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY FOR ANY ISSUE OR CLAIM RELATED TO THE PERFORMANCE OF NON-PERFORMANCE OF THE SERVICES SHALL BE FOR ATC TO PROVIDE CUSTOMER WITH A CREDIT ALLOWANCE SUBJECT TO THE LIMITATIONS SET FORTH IN THIS AGREEMENT. EXCEPT FOR SUCH CREDIT ALLOWANCE, ATC PROVIDES ALL SERVICES ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S OWN RISK. ATC DOES NOT MAKE AND EXPLICITLY DISCLAIMS, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AS WELL AS ANY WARRANTIES THAT MAY ARISE FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICES. ATC DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE, UNINTERRUPTED OR SECURE FROM THIRD-PARTY ATTACKS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THESE DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE CHARGES FOR SERVICE OFFERED BY ATC.
Limitation of Liability. WITH RESPECT TO CLAIMS OR SUITS BY CUSTOMER, OR ANY OTHERS, FOR DAMAGES RELATING TO OR ARISING OUT OF ACTS OR OMISSIONS UNDER THIS AGREEMENT AND/OR SERVICES PROVIDED HEREUNDER, ATC'S LIABILITY FOR SERVICE INTERRUPTIONS OR PROBLEMS OF ANY KIND, IF ANY, SHALL BE LIMITED TO CREDIT ALLOWANCES AS EXPRESSLY PROVIDED IN THIS AGREEMENT. IN NO EVENT SHALL SUCH CREDIT ALLOWANCE EXCEED THE TOTAL AMOUNT OF FIXED MONTHLY RECURRING CHARGES BILLABLE TO CUSTOMER FOR THE SERVICES UNDER THIS AGREEMENT FOR A PERIOD OF SIX (6) MONTHS. ATC AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES RESULTING FROM: (A) THE DELIVERY, INSTALLATION, MAINTENANCE, OPERATION, USE OR MISUSE OF AN ACCOUNT, EQUIPMENT OR SERVICE; (B) ANY ACT OR OMISSION OF CUSTOMER, OR ITS END-USERS OR AGENTS, OR ANY OTHER ENTITY FURNISHING SERVICES TO CUSTOMER; OR (C) ANY PERSONAL OR PROPERTY DAMAGES DUE TO THE LOSS OF STORED, TRANSMITTED OR RECORDED DATA RESULTING FROM THE SERVICE, EVEN IF ATC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE LOSS OF DATA, GOODWILL OR PROFITS, SAVINGS OR REVENUE, INTERRUPTION OF BUSINESS OR HARM TO BUSINESS, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY CAUSE OF ACTION WHATSOEVER. IN ADDITION AND NOT IM LIMITATION OF ANY OTHER DISCLAIMER OR LIMITATION OF LIABILITY CONTAINED IN THE AGREEMENT, ATC AND ITS SUPPLIERS WILL NOT BE RESPONSIBLE FOR ANY DAMAGES, LOSSES, EXPENSES OR COSTS THAT CUSTOMER SUFFERS AS A RESULT OF THE SERVICES, INCLUDING BUT NOT LIMITED TO: (1) ANY INTERRUPTION OR FAILURE OF THE SERVICES, (2) THE DOWNLOADING OR USE OF ANY INFORMATION, DATA, SOFTWARE OR MATERIALS OBTAINED VIA THE SERVICES OR FROM THE INTERNET, (3) ANY FAILURE TO COMPLETE A TRANSACTION ON THE INTERNET OR WHILE USING THE SERVICES, (4) ANY LOSS OF DATA, EMAIL, BACK-UP FILES OR OTHER ELECTRONICALLY-STORED INFORMATION, (5) ANY UNAUTHORIZED USE OF, OR MODIFICATION TO, THE SERVICES OR THE COMBINATION OF THE SERVICES WITH OTHER SERVICES, EQUIPMENT OR PRODUCTS, (6) ANY INTERRUPTION OR FAILURE OF A THIRD PARTY’S SERVICES, SOFTWARE, EQUIPMENT OR NETWORK, (7) VIRUSES, WORMS, ADWARE, MALWARE, TROJAN HORSES, CYBER ATTACKS OR OTHER HARMFUL DATA, SOFTWARE, OR ACTIVITY, (8) ANY UNAUTHORIZED ACCESS, ALTERATION, THEFT OR DESTRUCTION TO CUSTOMER’S DATA, COMPUTERS, EQUIPMENT, OR SYSTEMS. CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT SERVICES MAY BE PROVIDED BY ONE OR MORE SUPPLIERS, AND THAT ATC IS RESELLING THE SERVICE PROVIDED. CUSTOMER’S SOLE LIABILITY WITH RESPECT TO THE SERVICES PROVIDED BY ATC SHALL BE AS SET FORTH ABOVE. CUSTOMER ACKNOWLEDGES THAT ATC HAS ENTERED INTO THIS AGREEMENT AND HAS SET ITS PRICES IN PART IN RELIANCE ON THE LIABILITY LIMITATIONS AND THAT THEY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN CUSTOMER AND ATC UNDER THE AGREEMENT.
Indemnification. Customer agrees to indemnify, defend and hold harmless ATC and its officers, directors, employees, agents, affiliates and suppliers from and against any claims, actions, demands, losses and damages, including attorney's fees, relating to any violation of this Agreement, misuse of the Service, or related acts or omissions by Customer, its end users, or other users of its account, and/or Customer’s replacement or transmission of any message, information, software or other materials on the internet by Customer or end users of Customer's account. T
Force Majeure. Except with respect to Customer’s payment obligations, notwithstanding any other provision of the Agreement, neither party to the Agreement shall be liable to the other party for any delay or failure in performance of the Agreement to the extent such delay or failure is caused by fire, flood, explosion, accident, war, terrorism, strike, embargo, governmental requirement, civil or military authority, Act of God, inability to secure materials or labor or any other causes beyond its reasonable control (“Force Majeure Event”). Any such delay or failure shall suspend each party’s performance until such Force Majeure Event ceases to prevent the reasonable performance of the obligation.
Partial Invalidity. If any provision of the Agreement shall be held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render the Agreement unenforceable. Instead, the remainder of the Agreement shall remain in effect, excluding the invalid or unenforceable provision. However, if such provision is an essential element of the Agreement, the Parties shall promptly negotiate a substitute provision.
Additional Services. Additional locations or additional services, not covered by the MSA, may be added by the execution of additional MSAs. Each additional MSA shall have a separate and distinct term and shall apply separately and distinctly to the services covered therein, except as otherwise provided herein.
VoIP E911 Disclaimer. The Federal Communications Commission (FCC) has promulgated regulations requiring communications providers to make a disclaimer regarding E911 service associated with the provision of Voice-over Internet Protocol (“VoIP”) services. Where a Customer’s Services includes VoIP service, the Customer is required to read, understand and acknowledge the disclaimer, which explains that E911 service may fail under certain circumstances. A copy of the disclaimer is provided on ATC’s website (www.americantelephonecompany.com), which is incorporated by reference and made a part of these Terms and Conditions. The disclaimer must be signed and returned by Customer to ATC prior to the Service Commencement Date. In addition, by executing an MSA, Customer acknowledges that Customer has read and understood the disclaimer. In the event that Customer is not completely comfortable with the limitations of E-911 Service explained in the disclaimer, Customer should take action to acquire an alternative means to access 911 services.
DISCLAIMER OF LIABILITY AND INDEMNIFICATION FOR E911 SERVICE: Customer acknowledges that ATC does not control how E911 calls are answered or handled by any local emergency response center/s. ATC disclaims all responsibility for the actions and conduct of any and all national and local emergency response centers. ATC relies entirely upon third parties to route E911 calls to local and national emergency response centers. ATC disclaims any and all liability or responsibility in the event such third party data used to route the call is incorrect or produces an erroneous result. Neither ATC nor its office, directors or employees may be held liable for any claim, damage or loss, and Customer hereby waives any and all such claims or causes of action arising from or related to the E911 services. Customer, on its own behalf and on behalf of any third party, hereby agrees to defend, indemnify and hold harmless ATC, its officers, directors, employees and agents from and against any and all claims, losses, damages, fines, penalties, costs and expenses (including attorneys' fees) relating to the absence, failure or outage of the E911 service, including without limitation the emergency dialing service or access to emergency service personnel. CUSTOMER ACKNOWLEDGES THAT THE E911 SERVICES PROVIDED BY ATC DO NOT SUPPORT TRADITIONAL 911 ACCESSES TO EMERGENCY SERVICES. WHERE AVAILABLE, ATC'S SERVICES MAY INCLUDE E911 ACCESS TO THIRD PARTY EMERGENCY SERVICES. ATC ADVISES CUSTOMER TO MAINTAIN OR ACQUIRE AN ALTERNATIVE MEANS OF ACCESSING 911 SERVICES. CUSTOMER AGREES TO ADVISE ALL EMPLOYEES, VISITORS AND OTHER PERSONS WHO MAY BE PRESENT AT THE PHYSICAL LOCATION WHERE CUSTOMER USES THE SERVICE OF THE LIMITATIONS OF ATC'S E911 SERVICE. Customer also understands and acknowledges that ATC's E911 is only available in United States mainland (excluding Alaska, Hawaii, Puerto Rico, and Guam).
UNDERSTANDING, ACKNOWLEDGEMENT AND ALTERNATIVE 911 SERVICE: By entering into the Agreement with ATC and/or by use of ATC’s Services, Customer acknowledges understanding of the limitations of the E911 services described above. In the event that Customer is not completely comfortable with the limitations of the E911 service, Customer should immediately take action to acquire an alternative means to access 911 services.
No Agency. Customer agrees that this Agreement and relations between the parties hereby established do not constitute a joint venture, agency or contract of employment between them, or any other similar relationship. Neither party has the right or authority to create an obligation or responsibility on behalf of the other.
Miscellaneous. ATC may assign or transfer all or part of the Agreement to any affiliates or assigns. With reasonable prior notice, Customer may assign or transfer this Agreement to any company that is the successor to substantially all of its assets or business. All other attempted assignments shall be void without ATC’s prior written consent. Customer authorizes ATC to perform credit checks and investigate financial references. Customer further agrees that it and its end users will comply with all applicable laws and regulations and will not use ATC services in a fraudulent manner or in a manner that exposes ATC to legal liability. Customer agrees to be bound by the Agreement, all applicable ATC tariffs, and all publicly posted terms, conditions, and disclaimers, as incorporated by reference herein. All such additional publicly posted terms, conditions, and disclaimers are available upon written request by Customer and are posted at www.americantelephonecompany.com.
Survival. Any accrued rights to payment, any remedies, and all sections of the Agreement that by their nature would survive including without limitation, indemnification, remedies, warranty disclaimers and limitations of liability shall survive any expiration or termination of the Agreement.
No Waiver. Failure by ATC to insist upon strict and complete performance of any or all terms or conditions contained in the Agreement shall not constitute nor be construed as a waiver of ATC’s right to enforce such provision or any other provision.
Entire Agreement. This Agreement represents the complete agreement and understanding of the parties with respect to the items addressed herein and any related matters, and supersedes any and all other agreements whether written or oral, including but not limited to, any advertising, brochures, proposals, representations or understandings regarding the subject matter hereof. Except where ATC is permitted to make changes in its discretion to the website terms, conditions, disclaimers referenced herein, applicable tariffs or publicly posted terms and conditions, or as otherwise provided herein, this Agreement may be modified only by written agreement signed by both parties. This Agreement shall be governed by the laws of the State of New York without reference to its principles of conflicts of laws. In the event the arbitration provisions set forth herein are deemed unenforceable or invalid for any reason, Customer consents to the exclusive jurisdiction of the federal and State courts located in the State of New York, New York County.
CUSTOMER HEREBY CONSENTS TO THE INCORPORATION BY REFERNECE OF APPLICABLE TARIFFS, PUBLICLY POSTED TERMS AND CONDITIONS, DISCLAIMERS, AND ALL ADDITIONAL TERMS AND CONDITIONS, AS APPLICABLE, POSTED AT WWW.AMERICANTELEPHONECOMPANY.COM.
AMERICAN TELEPHONE COMPANY, LLC NETWORK MANAGEMENT POLICIES AND PROCEDURES
American Telephone Company, LLC (“ATC”) provides Internet access services to business customers utilizing networks operated by third parties through ATC’s wholesale and resale relationships (“ATC network”).
While the characteristics of each customer’s Internet access service may vary based on various customer-specific and usage factors described further below, ATC abides by the following principles for all Internet traffic carried on the ATC network:
ATC does not block lawful content, applications, services, or non-harmful devices and does not limit its customers’ bandwidth.
Except where equipment is used or intended to be used for an unlawful purpose or in violation of the terms set forth below or incorporated by reference herein, ATC does not prohibit the use of any network-compatible equipment.
ATC does not review or store information concerning its customers’ traffic or usage history, except in situations where ATC is required to do so to comply with governing law.
Except where providing managed services as requested by customer (as described further below), ATC does not inhibit or favor certain applications or classes of applications over others.
ATC’s pricing for its Internet access service is based on various customer-specific factors. All customers must sign a written Master Service Agreement with ATC prior to the provision of any Internet access service, which will define the pricing for service for the particular customer.
Any data caps on a customer’s use of Internet access services shall be set forth in a Master Service Agreement between the customer and ATC.
Services, Speeds and Network Management Options
ATC provides service using both dedicated circuits and hosted solutions. Where a customer purchases a dedicated circuit, the speed of service depends on the bandwidth of the connection between customer’s premises and ATC’s network. Speeds for dedicated connections generally range from 1.544 Mpbs to 1,000 Mpbs depending on the type of circuit purchased by the customer.
Where a hosted solution is used, the speed of service depends on the customer’s method of access and network configuration. Various network management options are available to customers using hosted solutions. For example, customers may choose an option that allows for the prioritization of certain services or applications or service may also be configured to assign a portion or portions of available bandwidth to particular services or applications. Where a portion of bandwidth is dedicated to a particular service or application, the speed of service will be restricted based on the portion of bandwidth assigned for the particular service or application.
Performance Characteristics and Factors
The performance of a customer’s Internet access service depends on a variety of conditions and factors, including the following:
Network Configuration. The speed and performance of ATC’s Internet access service may be affected based on the configuration of customer’s equipment (e.g., routers or modems) used to connect to ATC’s network. Use of a wireless router, for instance, may result in slower performance as compared to a direct router connection.
Congestion/High usage. The speed and performance of the service observed by the user may be affected by network congestion or high usage levels associated with the Internet address being accessed. For example, where many computers request access a particular website simultaneously, the user’s connection may be affected if the site is unable to serve all of the requests at the same time.
Use of Multiple Services/Applications. ATC’s Internet access services are typically used in a business environment, where multiple users are accessing the Internet simultaneously. Simultaneous usage by multiple users, as well as use or multiple services or application at the same time, limits the bandwidth available to any specific user. Except where a customer requests arranges for prioritization of certain services or applications, each user at customer’s location is given the same priority.
Computer performance. The characteristics of the user’s computer, such as its memory, processor speed, and operating system, may affect the speed and performance of the Internet access service observed by the user. Any adware, viruses, or unwanted or malicious programs on the user’s computer may also affect the observed performance of the Internet access service.
Distance/Intervening Networks. Performance may vary based on the distance that data packets must travel. When accessing data on the Internet, data must travel between the user’s computer the destination associated with the address chosen by the user. Any limitations of the networks through which the data packets are transmitted to reach the destination may affect the speed and performance observed by the user.
Website Limitations. A particular website may limit the speeds at which a visitor can download or view content. Where a user accesses a website that is limited in this respect, the speed and performance observed by the user may be affected.
Customer premise equipment (CPE). The speed and performance of service observed by the user may be affected by the type and configuration of CPE. For instance, different routers have different capabilities in terms of performance, and thus the type of router used by a customer may affect the speed and performance of the service.
Underlying carrier networks. ATC provides Internet access service by utilizing networks operated by third parties. ATC may use the networks of multiple carriers to provide service, and those underlying carriers may have network management practices that differ from ATC’s. Upon request, ATC may refer a customer to an underlying carrier’s network management policy. ATC and its underlying carriers reserve the right, at any time and without prior notice to its customers, to restrict or suspend service to perform network maintenance. ATC retains the right to change its underlying carrier in its sole discretion and without notice to customer.
In addition to those terms, the following terms apply specifically with respect to Internet access services provided by ATC:
Disclosure of Customer Information. ATC does not review or store information concerning its customers’ traffic or usage history, except in situations where ATC is required to do so to comply with governing law. ATC reserves the right to provide information about a Customer, its account, or use of service to governmental authorities, ATC’s underlying carriers, or third parties as required or permitted by law. For example, ATC may be required to disclose Customer information to such parties in response to a subpoena or order of a governmental authority. ATC may also be required to disclose such information to law enforcement or to report any facts that indicate there may be a violation of law.
Equipment. Customer is solely responsible for obtaining, installing, configuring, and maintaining its CPE, computers and software, regardless of whether it was provided to Customer by ATC or a third party.
Service Performance. Customer understands that bandwidth available to each computer or device connected to ATC’s service will vary depending upon various factors, including without limitation the performance characteristics and factors set forth above.
Service Changes. Subject to the provisions of a Customer’s MSA and the Terms and Conditions incorporated by reference herein, ATC reserves the right to change or modify the services it provides in its sole discretion without notice to customers. Such modifications may include, but are not limited to, changes to the speed of service, types of connections, service configurations, pricing and other terms of service offered by ATC.
Service Monitoring. ATC may monitor the performance of a customer’s Internet connection and usage levels as part of network maintenance or service configuration. Customer agrees to provide ATC with access to Customer’s CPE and computers to monitor and record relevant information for this purpose.
IP Addresses. ATC may, upon reasonable request, require a customer to renumber its assigned IP addresses. Upon expiration, cancellation or termination of service by customer for any reason, the IP addresses or address blocks assigned to the customer shall be returned to ATC.
Amendments. ATC, in its sole discretion, from time to time may update and/or modify the terms and conditions set forth herein by providing notice to Customer and/or by posting changes on our website (www.americantelephonecompany.com) or any successor location of our website.
Customer Inquiries. If you should have any questions, concerns or complaints about your service or these network management policies, please contact ATC’s Customer Service Department immediately at 888-9-GET-ATC.
The E-911 Service provided by American Telephone Company (“ATC”) is a Voice-over Internet Protocol (“VoIP”) based service. This Disclaimer is provided to inform you of the circumstances under which E-911 service may not be available through VoIP service or may be in some way limited by comparison to traditional E-911 service. It is important that you read and understand this Disclaimer and inform all employees and guests of these important limitations.
CUSTOMERS OF ATC ACKNOWLEDGE THAT THE E-911 SERVICE PROVIDED BY ATC DOES NOT SUPPORT TRADITIONAL 911 ACCESS TO EMERGENCY SERVICES AND IS SUBJECT TO THE LIMITATIONS EXPLAINED IN THIS DISCLAIMER. TO AVOID THESE LIMITATIONS, ATC ADVISES CUSTOMER TO MAINTAIN OR ACQUIRE AN ALTERNATIVE MEANS OF ACCESSING 911 SERVICES. CUSTOMER AGREES TO ADVISE ALL EMPLOYEES, VISITORS AND OTHER PERSONS WHO MAY BE PRESENT AT THE PHYSICAL LOCATION WHERE CUSTMOER UTILIZES THE SERVICE OF EACH OF THE LIMITATIONS OF ATC’s E-911 SERVICE AND OF AN ALTERNATIVE MEANS OF 911 DIALING.
CERTAIN LOCATIONS NOT SUPPORTED: ATC’s E-911 emergency dialing feature is only available in the United States mainland (i.e., excluding Alaska, Hawaii, Puerto Rico, and Guam). REGISTRATION OF PHYSICAL LOCATION REQUIRED: Customer must provide ATC with the address of the physical location where the Service will be used. When Customer moves the Equipment (Equipment refers to the ATC VoIP Adapter or any on premise equipment including soft phones), Customer must register the address of the new physical location with an ATC customer service representative. All E-911 calls are directed to emergency responders based upon the address registered with ATC. If the Equipment is moved and the new physical location is not registered, emergency responders will be dispatched to the previous physical address.
E-911 SERVICE LIMITATIONS: ATC E-911 Service will not function properly if Customer (i) uses a telephone number not native to the geographic area of the Customer’s physical location; (ii) attempts a 911 call from a location different from the Customer’s physical address registered by Customer to ATC; (iii) loses or experiences a disruption of electrical power; (iv) loses or experiences a disruption to Customer’s internet connectivity; (v) loses service as a result of cancelation or suspension for any reason, including without limitation for failure to pay ATC for services provided or other default; (vi) provides ATC with an incorrect or invalid Customer address or where such information is not updated with ATC in the event of a change in physical location; or (vii) uses equipment that fails to properly function or is improperly (or is not) installed or configured. E911 Services will not function until correct and valid address information has been provided to ATC and entered into the appropriate database(s), which may take up to 30 days from the date on which Customer registers a new address with ATC.
LIMITATION OF LIABILITY AND INDEMNIFICATION: ATC does not control how E-911 calls are answered or handled by any local emergency response center. ATC disclaims all responsibility for the actions and conduct of any and all national and local emergency response centers. ATC relies entirely upon third parties to route E-911 calls to local and national emergency response centers. ATC disclaims any and all liability or responsibility in the event such third party data used to route the call is incorrect or produces an erroneous result. Neither ATC nor its officers, directors or employees may be held liable for any claim, damage or loss, and Customer hereby waive any and all such claims or causes of action arising from or related to the E-911 Services, unless such claims arose from ATC’s gross negligence, recklessness or willful misconduct. Customer, on its own behalf and on behalf of any third party, hereby agrees to defend, indemnify and hold harmless ATC, its officers, directors, employees and agents from and against any and all claims, losses, damages, fines, penalties, costs and expenses (including attorneys' fees) relating to the absence, failure or outage of ATC’s E-911 Service, including without limitation the emergency dialing service or access to emergency service personnel.
CUSTOMER ACKNOWLEDGEMENT: The Federal Communications Commission requires that ATC obtain affirmative acknowledgement that its VoIP subscribers have read and understand this Disclaimer. Please acknowledge, by signing below, that you have read this Disclaimer and understand the limitations associated with ATC’s E-911 services described above. In the event that you are not completely comfortable with these limitations of ATC’s E-911 Service, you should immediately take action to acquire an alternative means to access 911 services.
AMERICAN TELEPHONE COMPANY, LLC SALES POLICIES AND OBJECTIVES
This document provides the sales policies and objectives of American Telephone Company, LLC (“ATC”) relative to each sales agent (“Agent”) appointed by ATC to sell ATC’s communications services and products (“Services”)as well as the related obligations that apply to each such Agent. These policies and objectives are consistent with company practices and industry standards and apply uniformly to all Agents, regardless of the existence or non-existence of written contracts with ATC. By serving as an appointed Agent of ATC and accepting commissions or other compensation from ATC, each appointed Agent accepts and agrees to abide by the terms set forth below. These terms are not intended and should not be construed as, and do not in any way constitute, an offer to any person to conduct business as an agent of ATC that has not been so appointed by ATC.
1. Engagement. Agent acknowledges that Agent’s relationship with ATC is that of an independent contractor. The appointment of Agent as ATC’s independent sales representative shall be non-exclusive, and Agent retains the right to market the products and services of telecommunications service providers either directly or through agents or master agents other than ATC. Notwithstanding the foregoing, ATC and Agent agree that Agent’s appointment as ATC’s sales representative shall be exclusive with respect to any specific opportunity to sell a Service to a customer or prospective customer for which a quote is requested from ATC by Agent. For example, and by way of illustration only, if Agent provides a quote through ATC for a direct internet access T1 circuit (“DIA Circuit”) for a prospective customer’s location in Manhattan, Agent may not provide a competing quote for a DIA Circuit or similar service to the prospective customer on behalf of any other provider or entity or through any agent or master agent other than ATC.
2. Limited Agency. Agent is hereby granted a limited agency to act on behalf of ATC for the sole purpose of selling Services consistent with the duties described herein and the agreement between Agent and ATC, whether written or unwritten. Only an authorized officer of ATC shall have the authority and power to enter into an agreement for Services with a customer.
3. Duties with Respect to Prospective Customers. Agent shall use best efforts to solicit and promote the distribution and sale of Services. These efforts shall include, without limitation, making initial contact with prospective customers, securing authorized signatures on ATC’s authorized forms and securing other necessary data (such as credit information, letter of agency, letter of authorization, customer bills, etc.), and servicing and maintaining existing customer accounts. Agent may only solicit and take orders for the purchase of Services at the prices and on such terms and conditions specified by ATC. No quote, estimate, proposal or order given or taken by Agent shall be binding until accepted by ATC. Orders for the Services received by Agent shall be immediately forwarded to ATC. Agent shall use forms and documents provided to it by ATC or ATC’s providers for such orders. ATC reserves the right in its sole discretion to reject, in whole or in part, any quote, estimate, proposal or order given or taken by Agent. Agent shall make no representations, guarantees or warranties with respect to the Services that are inconsistent with the written descriptions, guarantees, warranties and representations provided and issued by ATC or the applicable provider. Agent may NOT represent himself/itself as a reseller of the Services that ATC is authorized to sell under its agreements with ATC’s providers.
4. Sales Policies and Objectives and Related Obligations.
a. Agent shall use best efforts to solicit and promote the distribution and sale of Services to prospective customers as set forth in further detail above.
b. Agent shall use best efforts to provide ongoing account management to existing customers to ensure customer satisfaction, including but not limited to assisting ATC with responding to customer questions, concerns, disputes or other problems in a timely manner, contacting customer on a monthly basis to review the ATC provided Services with customer, visit customer/s premises on a quarterly basis to review the ATC provided Services with customer and assist customer with any questions or issues regarding ATC provided circuits and Services.
c. Agent shall use best efforts to assist ATC in the collection of amounts owed by customers.
d. Agent shall not advertise the Services by mail, electronic mail, classified advertisements, newspaper, television, radio, business shows, Internet, or any other means without the prior express written consent of ATC which may be withheld in ATC’s sole discretion.
e. Agent shall, at all times, make informed and accurate representations concerning the Services in connection with Agent’s solicitation and sales activities. Any misrepresentation, determined in the sole discretion of ATC, concerning the Services or ATC shall be considered a violation of these sales policies and objectives. Agent accepts full and complete responsibility for any such misrepresentation and shall defend, indemnify and hold harmless ATC from and against all judgments, liabilities, losses and costs (including, without limitation, reasonable attorneys’ fees and expenses) in connection with any such misrepresentation.
f. Agent shall not alter or amend the Services provided to a customer without the express written consent of ATC. If Agent alters or amends the Services provided to a customer, such alteration or amendment shall constitute a violation of these sales policies and objectives.
h. Agent hereby agrees and acknowledges that it has, or its employees have, a valid driver’s license and the necessary driver’s insurance as is required by law. Furthermore, Agent agrees and acknowledges that Agent must maintain a valid driver’s license and the required driver’s insurance for the term of Agent’s agreement and/or arrangement with ATC, whether written or unwritten.
5. Performance and Quotas. ATC may in its sole discretion establish and maintain performance requirements, quotas, incentives, areas of responsibility, standards, policies and procedures that Agent must comply with upon ATC notifying Agent in writing of same. Agent is required to provide a minimum of three (3) new qualified sales opportunities per quarter, as determined by ATC.
6. Commissions. By serving as an appointed Agent of ATC and accepting commissions or other compensation from ATC, each appointed Agent accepts and agrees to abide by the terms set forth in these sales policies and objectives. Consistent with company and industry practice, ATC may modify the commission schedules applicable under a particular agreement, whether written or unwritten, in ATC’s reasonable discretion based on Agent performance, market factors, or other circumstances relative to ATC’s business. Agent understands and agrees that no commission or other compensation is earned or payable on taxes, surcharges or regulatory fees, or on installation charges, termination charges, early termination fees, or other similar charges and fees.
7. Default/Clawback. Any violation by Agent of these policies and objectives shall constitute a material breach of the agreement, whether written or unwritten, between Agent and ATC, and shall entitle ATC to immediately terminate such agreement, including without limitation all ATC payment obligations thereunder. Further, Agent shall not be entitled to receive or retain any commissions or other incentive-based payments that relate to time periods where Agent is or was in material breach of its agreement with ATC. In the event of a material breach by Agent, any commission paid to Agent will be subject to deductions, recoupment and/or clawback. Agent specifically acknowledges and agrees that ATC shall be entitled to recoup and/or clawback any commissions paid by ATC to Agent relating to time periods during which Agent was in material breach of its agreement with ATC, including without limitation any violation of these policies and objectives.