REQUIRED MAINTENANCE 
ADS reserves the right to perform repair and maintenance or to upgrade, update or enhance its network, infrastructure, website(s), Services and/or ADS Business Equipment with or without prior notice or liability to Subscriber, even if the Maintenance causes a partial or full disruption of the Services; provided, however, and subject to ADS’s business needs, ADS shall use commercially reasonable efforts to perform the Maintenance in a manner so as to avoid unduly interfering with Subscribers use of the Services, including by providing reasonable commercial notice where feasible.

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RECEPTION AND EXECUTIVE ASSISTANT SERVICE

Calls are measured from connect to disconnect time, as recorded by carrier. Any and all telephone numbers provided by ADS will remain the property of ADS upon any termination of services.  We will make attempts to forward any messages per instructions, but we not be held liable for delay’s of messages routed to any user of the service.   Missed calls due to third party or act of god scenarios are out of our control understand and release  ADS and Affiliates from any and all liability, that may be caused  to you the user of the service or any third party for any direct or indirect damages, resulting from such issues.

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HELP DESK SERVICES

Service may not be available at all times, and some personal computers may not be able to receive Remote Computer Support Services. It is your responsibility to ensure that you have adequate connectivity to the Internet. All Services are provided on an AS IS basis. Suppliers or Vendors may, at any time, without notice or liability, restrict the use of the Service or limit its time of availability in order to perform maintenance activities. With all reasonable efforts to schedule convenient service session within a reasonable period of time, however acknowledgements that circumstances outside ADS’s control (e.g., a new computer virus outbreak) may cause significant delays in the ability to schedule a service session.

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BACKUP SERVICES

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ADS Managed Backup Service delivers comprehensive protection of your business-critical data assets and offloads the labor and burden of managing, monitoring, and supporting your backup infrastructure to our team of trusted and reliable experts. We offer backup solutions that are scalable and flexible to fit your specific needs.
 

The following features are standard with all service levels of Managed Backup:
 

• ADS will install a backup agent for the Subscriber. The Backup Agent provides the communication to the master server or cloud storage, which controls backup/restore scheduling and other backup/restore functions. In addition, the backup Agent initiates the transport of the data across the network from the client’s Server to the ADS storage device or cloud.

• ADS will collect and process the data that subscriber has requested using ADS backup agent. ADS stores and protects the data uploaded using our services so that this data is available to you as the subscriber needs while a subscriber of our ADS Services. ADS holds such data as a data processor and store this data solely in order to provide the backup service in accordance with this Agreement. ADS may transfer data to a third party service provider whose cloud storage ADS utilizes to provide the Service. By allowing ADS to install the Backup Agent on to Subscriber’s device(s), Subscriber grants ADS the right to back-up any of the files on that device(s) regardless of who might be the creator, originator, editor, or otherwise the owner of those files. Subscriber assumes sole responsibility for ADS receiving access to and backing-up those files.

• The ADS backup agent has the ability to backup Subscribers data at the file level and then sends that data directly to storage device or cloud Storage.

• To provide backups service, ADS routinely scans subscribers device(s), server(s) and devices in order to detect new, modified, or deleted data files that require further action to complete backup and restore operations up to your service plan’s storage limit. The backup services also catalogue the number and total storage size of various file types on Subscriber’s device(s). The backup agent inspects file headers and related information in order to confirm that each file type is properly represented by its file extension.

• Retention schedules will be defined based on subscriber needs. Standard backup is completed once per day.

• Access to Backup Data in a case of a death or in other Circumstances. ADS will provide access to your Backup Data to a surviving spouse and/or your executor upon the presentation of a death certificate and identification which ADS reasonably believes to be valid and sufficient, or in response to a court order, warrant, subpoena or other judicial or administrative legal process.

• ADS will define and create backup jobs based on input provided by the Subscriber, including data backup selections, job scheduling, job frequency and backup retention time frames.

• ADS assumes no responsibility for the loss of data for restores that overwrite live data. If subscriber requests assistance with restoration of data, additional charges may apply.

It is important to note that restore times often exceed the duration of the original backup time, especially across slow connections. Network performance, data, compressibility, and end user systems may affect restore times. Should ADS, as part of its monitoring function, observe any unusual, abnormal or excessive number of restore requests, ADS reserves the right to contact subscriber and require modifications to procedures and behavior in this area.

 

• ADS will be responsible for restoring data within the requirements of this terms and conditions. ADS reserves the right to bill customer at standard rates for providing additional assistance relating to a restoration request.

• Subscriber’s data contained within a backup that has expired or has exceeded defined retention cannot be recovered.

• All backup and restore tickets will follow the normal ticket flow and will be treated as “best effort” for recovering or backing up client data.

• If subscriber exceeds the storage limit for the service plan that has been purchased, ADS will notify subscriber that storage has exceed the limit and back up of additional files will not take place  unless subscriber upgrades storage plan, purchase additional storage, or remove files to free up storage space. ADS will be happy to help clean up data, additional charges will apply. ADS calculates whether subscriber has reached the storage limits for the service plan elected, based upon the greater of the storage amount shown on your computer or the storage amount maintained by ADS, excluding the benefits of any data compression, file duplication or similar techniques performed by ADS.

• All monthly subscriptions will renew automatically each month until subscriber cancels account in writing.
   

ANTI-VIRUS AND SECURITY SERVICE

Anti-Virus is a managed monitoring service provided by ADS. ADS will monitor and remove viruses that are detected included in the monthly Anti-Virus fees . Subscriber understands that managed Anti-Virus is not a silver bullet and are not liable for any infiltration. Subscriber understands that following the following rules should still be in place:
 

• Careful browsing and email discipline is and always will be a necessary part of web use irrespective of the antimalware product ADS provices.

• New viruses and malware are being created all the time. “Risky browsing” and other risky behaviors (such as, but not limited to, opening attachments to emails from strangers) will at some stage result in a Subscribers system being compromised by malicious software no matter what “protective” software the Subscriber is running.

• If Subscriber must take risks then it is advised that a sacrificial and non-critical machine be employed for that purpose.

• ADS is not liable for any damages or loss whatsoever. Subscribers hardware, software and site management are entirely the Subscribers responsibility. ADS reserve the right to cancel or amend this service for any reason whatsoever. 

​The Anti-Virus and Security Solution provided by ADS includes (or may be upgraded to include) features that allow the following:
 

• Automatically block and/or quarantine installation of software that subscriber may not want on a Device ("Potentially Unwanted Software"). This feature may block/quarantine software that is not Potentially Unwanted Software, disable other software on the Device, or result in breaching licenses to such software.

• To operate correctly the Software requires connection to the Internet and must connect at regular intervals to ADS servers or third-party servers.  Connection to the Internet is necessary for the following features of the Software: 

• ADS shall be entitled from time to issue updates to the Software ("Updates"), but shall not be obliged to provide Updates. This function is enabled under the Software's standard settings and Updates are therefore installed automatically, unless the End User has disabled automatic installation of Updates.  

• The Software contains a function which collects samples of new viruses and other similar malicious programs and suspicious or problematic files (hereinafter referred to as “Infiltrations”) and then sends them to ADS, along with information about the computer and/or the platform on which the Software is installed (hereinafter referred to as “Information”). This function is disabled under the Software's standard settings. The Information may contain data (including randomly or accidentally obtained personal data) about the End User and/or other users of the computer on which the Software is installed, information about the computer, the operating system and programs installed, files from the computer on which the Software is installed and files affected by an Infiltration and details about such files. ADS shall only use Information and Infiltrations received for research into Infiltrations and shall take appropriate precautions to ensure that Information received remains confidential. By activating this function of the Software subscriber agrees to Infiltrations and Information being sent to ADS and subscriber is also granting ADS the necessary approval, as specified under the relevant legal regulations, for processing Information obtained.

• Subscriber must exercise End User rights in person or via your employees. You are only entitled to use the Software to safeguard your operations and

protect those computer systems for which the Subscriber has obtained a License.

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BILLING AND PAYMENT

Any monthly phone or recurring service charges are billed in advance via electronic billing. Usage charges in excess of the monthly allowance are billed on the following months invoice.  ADS reserves the right to increase any of its rates or charges at any time upon thirty (30) days notice. All charged services performed by ADS are due in full within its due date, and ADS reserves the right if the bill is not paid before the due date. A late fee in the amount of 1.5% of the unpaid balance will be applied to the account and further agree that a charge of twenty-five dollars ($25.00) for each non-payment which a financial institution refuses to honor for any reason. 

 

Accounts remaining unpaid for sixty (60) or more days shall be deemed delinquent. Delinquent accounts shall be placed on “accounting hold” and services to the Subscriber shall be suspended until the account is paid in full.  For any Subscribers’ account that has been placed on suspended service, there shall be due a Fifty five ($55.00) reconnection charge to reactivate Subscribers Services after the account has been brought current. Written notice of any dispute of bills must be received within thirty (30) days after the statement date, or such invoice shall be deemed to be correct and payable in full. If ADS initiates legal proceedings to collect any amount due hereunder and ADS substantially prevails in such proceedings,   ADS’s costs and reasonable attorneys’ fees in such proceedings and any appeals. Subscriber waives any and all rights they may have to a jury trial in connection with any proceedings concerning this Agreement.

 

CREDIT CARD: Upon purchase of the Service and delivery of the equipment, Subscriber must provide a valid Credit Card to be debited for automatic payments for Monthly Phone or recurring monthly services. Credit cards will be processed on the invoice date determined on first monthly/quarterly/yearly invoice dates.  

 

It is understood that any and all Services requested by the Subscriber that fall outside of the terms of this Agreement will be considered Projects and will be billed as separate and individual services.

 

DISCOUNTS

Discounts. From time to time in its sole discretion, ADS may offer promotions or discounts. Any promotion or discount codes must be provided to ADS upon purchase of the Services. The Subscriber shall not be entitled to a subsequent credit for such promotions or discounts if The Subscriber do not request such credit at the time of Account creation or change of service. Promotions and/or discounts may not be used cumulatively or be used for Services retroactively. If a promotion and/or discount is offered on a confidential basis, The Subscriber agree not to disclose the promotion and/or discount and to assume full responsibility for any harm, direct or indirect, caused to ADS by the disclosure of the promotion and/or discount.

 

PLAN CREDITS, TAXES, CHARGES, FEES AND CHARGE BACKS

It is understood that any Federal, State or Local Taxes applicable shall be added to each invoice for services or materials rendered under this Agreement. Subscriber shall pay any such taxes unless a valid exemption certificate is furnished to ADS for the state of use.

 

Generally. Please note that all prices, taxes, surcharges, and fees are subject to change at any time. The Subscriber IS responsible for paying all charges for The Subscriber’s Account, including but not limited to toll-free, local, long distance, international, additional feature charges, 411 and operator assisted charges, and directory assistance charges, and for all taxes, surcharges, and fees imposed on the Subscriber or ADS as a result of the Subscriber use of the Service. Customers with a past due balance on previous or multiple accounts will be charged the full balance upon opening a new account or updating their credit card information on file. ADS also reserves the right to charge termination and transfer fees consistent with each plan’s terms and conditions and as provided in this Agreement.

Taxes, Charges, and Fees. All fees for Services advertised or otherwise listed on the Website are exclusive of any federal, state, local sales, international excise, value-added, and similar taxes or fees and administrative or recovery fees or charges (collectively “Taxes and Fees”).

 

The Subscriber agrees to pay all Taxes and Fees and/or similar liabilities, however denominated, that may now or hereafter be levied on the Services which are chargeable to or recoverable from customers by any federal, state, local, or international law or regulation, as well as any administrative and recovery fees and charges levied on the Services by ADS, whether or not mandated by law or regulation. Should ADS pay or be required to pay such liabilities (including any Taxes and Fees that were due but not charged or previously collected), The Subscriber agree that ADS may charge The Subscriber credit card on file for such payments upon receipt of an invoice and showing of indebtedness to ADS.

 

FRAUDULENT ACTIVITY OR ERRONEOUS CHARGES

In the event of suspected fraudulent activity or erroneous charges on The Subscriber Account, The Subscriber agrees to contact ADS as soon as possible. In many cases, ADS can mitigate or correct fraudulent activity or erroneous charges without bank or credit card company intervention. If The Subscriber suspect fraudulent activity or erroneous charges on The Subscriber ADS Account, please contact ADS customer support at 201-426-4246. When The Subscriber contact customer support, please have the following information available: (a) The Subscriber name, contact information, ADS Account telephone number in question, and security verification information; (b) the date that the Account in question was created; (c) the credit card account number used to open the Account; and (d) the total amount charged to the Account. If The Subscriber do not contact ADS within thirty (30) days after the suspected fraudulent activity or erroneous charges appear on The Subscriber Account, The Subscriber waive The Subscriber rights to object to or challenge such activity or charges. Furthermore, if The Subscriber request that The Subscriber bank or Credit Card Company perform a chargeback without first contacting ADS, and ADS subsequently determines that the charges at issue are not erroneous, ADS reserves the right to terminate The Subscriber Account immediately and take any available legal action. Notwithstanding the above, The Subscriber are solely liable for any transactions or activities by The Subscriber or anyone else that occur on The Subscriber Account, and in no event shall ADS be liable for any unauthorized use of The Subscriber Account.

 

Discounts. From time to time in its sole discretion, ADS may offer promotions or discounts. Any promotion or discount codes must be provided to ADS upon purchase of the Services. The Subscriber shall not be entitled to a subsequent credit for such promotions or discounts if The Subscriber do not request such credit at the time of Account creation or change of service. Promotions and/or discounts may not be used cumulatively or be used for Services retroactively. If a promotion and/or discount is offered on a confidential basis, The Subscriber agree not to disclose the promotion and/or discount and to assume full responsibility for any harm, direct or indirect, caused to ADS by the disclosure of the promotion and/or discount.

 

 

TERMINATION OF AGREEMENT

This Agreement shall be in effect for a minimum term of 60 days and will remain in force on a month to month basis thereafter until terminated by either party upon thirty (30) days notice.  ADS must receive written notice of cancellation (30) days in advance and must be submitted by the subscribers identified Main Contact on the account. Any outstanding payments for more than 10 days of its due date, ADS may restrict or terminate services under this Agreement without written notice.   Subscriber will not use the services for any unlawful purpose and only use the services in accordance with the terms and conditions of this Agreement. Subscriber understand that ADS may immediately restrict or disconnect my service without notice for any violation thereof.

 

In the event Subscriber terminates this Agreement for any reason other than a breach of the terms herein; Subscriber will pay a cancellation fee equal to 1 month of service.

 

ADS has the right to terminate service with Subscriber if the terms in this agreement are not met and will require Subscriber to pay cancellation fee equal to 1 month of services. ADS will use commercially reasonable efforts to notify you of modification, suspension, or discontinuance of the Service either by sending an email to the email address in our records. However, in no event will ADS be liable to you or to any third party for any modification, suspension or discontinuance of the Service with or without notice.

 

 

PURCHASE OF EQUIPMENT

To use the any of ADS services, the Subscriber may need to purchase phones, headsets, computers, routers, or other equipment (collectively, “Equipment”). All Equipment shipments are F.O.B. ADS’s shipping distributor facility. ADS’s liability for delivery shall cease, and title to such Equipment (if applicable) and all risk of loss or damage shall pass to The Subscriber upon delivery to the shipping carrier.

 

All equipment obtained from ADS in connection with Service’s is subject to the Equipment Return Policy below. The Subscriber understand and acknowledge that if The Subscriber purchase’s an annual service plan and The Subscriber cancel’s the Services plan prior to the end of The Subscriber initial term, cancellation or termination fees, or phone, hardware, and other equipment fees may apply in accordance with the terms and conditions of The Subscriber plan. The Subscriber hereby authorize ADS to charge The Subscriber credit card on file, and The Subscriber hereby agree to be liable for any and all such fees, costs, and charges.

 

REMOVAL OF LOANED/RENTED EQUIPMENT

The Subscriber agrees that time to time ADS will utilize, rent or loans ADS owned hardware and software to Subscriber, to manage or restore services, in the execution of these items shall remain the property of ADS, and must be returned if requested. Subscriber further agrees to cease the use of any technology that remains the property of ADS upon termination of this agreement. If any hardware, software, or such property used in the servicing is stolen, damaged or destroyed, or not returned when requested the Subscriber must pay ADS twice the cost of the replacement of said property. Subscriber must make said hardware and software available to ADS for removal when requested. ADS shall not be obligated to restore the premises to their original condition once hardware and software is removed. If the Subscriber does not return the equipment or make them available for removal by the ADS the Subscriber is liable and agrees to pay for and/replace any software and or hardware along with legal and collection fees associated with said property collections.

 

EQUIPEMENT RETURN POLICY

The Subscriber is responsible for all return shipping charges for any hardware returned to ADS for any reason, including situations in which hardware is covered under warranty. If The Subscriber has purchased any hardware from ADS or ADS has otherwise provided The Subscriber with any hardware and The Subscriber Account is terminated for any reason after the end of any free-trial period and prior to the end of The Subscriber first year of service, The Subscriber hereby authorize us to immediately bill the Subscriber credit card the appropriate equipment return fees, as set forth below.

 

If The Subscriber cancels The Subscriber ADS Service within ninety (90) days from the date of purchase of the hardware, The Subscriber may (a) keep the hardware and pay the list price minus the actual price paid for the hardware, excluding taxes, or (b) return The Subscriber hardware and receive a full refund. No returns are accepted after ninety (90) days from the date of purchase of the hardware. In addition, the following terms and charges apply to hardware returns:
 

• The Subscriber agree to pay all shipping, restocking and handling charges related to any hardware returns.

• All hardware must be fully functional, include all components, manuals, peripheral devices, and all other accessories that were originally shipped with the hardware. At our discretion, we may decline The Subscriber return or charge. The Subscriber may incur an additional fee of thirty dollars ($30) for each missing item or for each item that we determine is damaged or not in good working condition.

• Before returning any hardware that has data in its memory, please transfer all files The Subscriber wish to retain to another file source. Once the hardware is returned, The Subscriber files cannot be recovered and The Subscriber release us of any liability for any lost, damaged, or destroyed files, data, or other information.

 

SOFTWARE

If subscriber requests ADS to acquire software for the subscribers use, payment for software must be paid in full prior to purchase via credit card.  If software has a purchased as a yearly subscription, the renewal fee must be paid by credit card 10 days prior to the renewal date of the license. If credit card payment has not been provided by the Subscriber the license for software will not be renewed and use of software will be terminated.  

 

FORCE MAJEURE & MALICIOUS ACTS

This agreement is designed to cover the backup needs of The Subscriber during normal operating conditions. ADS shall not be liable for damages, delay, or default in performance if such delay or default is caused by conditions beyond its control including, but not limited to acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections, and/or any other cause beyond the reasonable control of either party.

 

Furthermore, damage and/or significant problems that result from anomalies and/or abnormal circumstances such as fire, flood, electrical surges, deliberate malicious acts, theft, acts of God, wars, insurrections, and/or any other cause beyond the reasonable control of either party fall outside the terms of this agreement.

 

CONFIDENTIALITY

Neither party shall disclose any proprietary or confidential information obtained from the other unless so directed by a court of law or government authority. The Subscriber agrees not to disclose rate(s), term(s), or any information regarding this Agreement without the prior written consent of ADS.

 

NON-DISPARAGEMENT

The Subscriber agree not to directly or indirectly through a third party engage in any conduct or make any communication (public or private) that disparages ADS or the Applications or Services in any way. Such communications include, but are not limited to, publishing, posting, printing, disseminating, or otherwise making such disparaging statements on or through the Internet, in any blog, or through any other form of social media. The Subscriber further agree not to solicit or encourage, directly or indirectly, any such statements, comments, or communications by any third-party. In accordance with the termination provisions below, ADS may terminate The Subscriber access to the Applications or Services if The Subscriber breach the requirements of this section.

 

PUBLICITY RIGHTS

The Subscriber agree that ADS may identify The Subscriber as a user of the Services in its business deals; press releases; marketing materials; electronic, printed, and broadcast advertising; newsletters; mailings; tradeshows; other promotional materials; on ADS’s website; or any other third-party website where ADS or its designated agents may promote the Services. The Subscriber hereby grant ADS and its agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display The Subscriber name, trademarks, service marks, designs, logos, and symbols in connection with such purpose.

 

COPYRIGHT INFRINGEMENT

Materials may be made available via the Service by third parties not within our control. We are under no obligation to, and do not, review content transmitted, sent, or received using the Applications or Services for purposes of determining copyright infringement. However, ADS reserves the right to terminate access to its Applications or Services if a user infringes on others’ copyrights, and will, in appropriate circumstances, terminate access to the Applications or Services if ADS determines that a user is a repeat infringer.

 

STORAGE OF USER INFORMATION

ADS is not obligated to store The Subscriber communications logs, voicemails, faxes, e-mails, or other messages and does so only as a convenience to The Subscriber. The Subscriber agree that ADS has no responsibility or liability whatsoever for the deletion or failure to store any call log information, voicemails, faxes, e- mails, messages, and/or other communications maintained or transmitted by the Services. The Subscriber acknowledge and agree that ADS may establish limits as to the size of communications that ADS transmits or stores and the duration for which ADS stores any communications.

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ASSIGNMENT

ADS may assign this Agreement and any of its rights and obligations hereunder at any time. The Subscriber may not transfer or assign this Agreement or any of The Subscriber rights or obligations under this Agreement. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties, their successors, permitted assigns, and legal representatives.

 

NOTICES

Notices to The Subscriber shall be effective on the date sent to The Subscriber registered electronic mail address when sent by email or, at ADS’s option, three (3) days following the date deposited in regular Snail Mail, postage prepaid, and addressed to The Subscriber current address on The Subscriber Account. The Subscriber are responsible for notifying ADS of any changes in The Subscriber contact information or address through The Subscriber Account settings page or by contacting customer service at 201-426-4246

 

Written notice to ADS shall be effective when directed to ADS’s Legal Department and received at ADS’s then-current address P.O. Box 8027, Paramus NJ 07653. The Subscriber notice must specify The Subscriber name, Account information, and security verification question and answer. All notices from The Subscriber to ADS must be made in writing.

 

CHANGES TO THE SERVICE AND TERMS AND CONDITIONS

We may change the terms of this Agreement from time to time upon delivery of electronic or written notices to The Subscriber. ADS generally provides written notice of changes to The Subscriber account, including this Agreement and any other legal agreements, via email, electronic notice on the ADS Website or The Subscriber Account Page, or on The Subscriber billing statements. The Subscriber agree to carefully read and review each such e-mail notice, electronic notice, and billing statement from ADS fully regarding any such notices of changes to The Subscriber Account.

 

The modified terms shall replace and supersede all previously agreed to electronic and written terms, as well as any prior versions of this Agreement. The Subscriber agree that the Subscriber are solely responsible for (a) making sure that The Subscriber registered email account is current and functional, (b) checking The Subscriber registered email account on a routine basis, (c) checking the ADS Website and The Subscriber Account page on a routine basis, and (d) making sure that ADS communications are not blocked or rendered undeliverable by The Subscriber, The Subscriber computer, any software installed on The Subscriber computer, The Subscriber Internet service provider, or for any other reason.

 

INTERPRETATION OF THIS AGREEMENT

This Agreement, including the documents incorporated herein, constitutes the entire agreement between The Subscriber and ADS with respect to the Applications and Services and supersedes all prior or contemporaneous understandings regarding such subject matter.

 

If any part of this Agreement is held invalid or unenforceable, that portion shall be construed to reflect the parties’ original intent, and the remaining portions shall remain in full force and effect.

The failure of ADS to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or any other provision.

 

Nothing in this Agreement shall be deemed or construed to constitute or create employment, partnership, association, joint venture, agency, or fiduciary relationship between the parties hereto.

The Subscriber agree and acknowledge that any breach of the provisions regarding intellectual property ownership contained in this Agreement shall cause ADS irreparable harm and ADS may obtain injunctive relief and seek all other remedies available in law and in equity.

 

The section titles in this Agreement are for convenience only and have no legal or contractual effect.

This electronic document and any other electronic documents, policies, and guidelines incorporated herein will be: (1) deemed for all purposes to be a “writing” or “in writing,” and to comply with all statutory, contractual, and other legal requirements for a writing; (2) legally enforceable as a signed writing as against the parties subject to the electronic documents; and (3) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation, or administrative proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.

 

CHOICE OF LAW

This Agreement and The Subscriber use of the Applications and Services shall be governed by and construed under the laws of New Jersey without regard to its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or The Subscriber sign up or use of the Applications or Services.

 

LIMITED WARRANTIES, REMEDIES, AND DAMAGES.

ADS does not warrant that it will have sufficient resources to handle unexpected increases in call volumes. ADS does not warrant that the service is error-free, or will operate without delays or interruptions. ADS is not responsible for transmission errors, corruption of data, or the security of information carried over telecommunication services.  Subject to the foregoing limitations, ADS will use reasonable efforts to provide the services, and if we fail to do so, sole remedy will be, at our sole discretion, either: (1) the correction of the failure to provide the services, or (2) a refund of the charges Subscriber paid to ADS. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, ADS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE PROVIDED HEREUNDER. ADS SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ANY LIABILITY HEREUNDER WILL BE LIMITED TO DIRECT DAMAGES, AND NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOST REVENUE, OR LOSS OF GOODWILL) FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT. ADS ENTIRE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNTS PAID TO ADS FOR SUCH SERVICE DURING THE TWELVE (12) MONTHS PRECEDING SUCH FAILURE TO PROVIDE THE SERVICE. THE PARTIES ACKNOWLEDGE THAT THESE LIMITATIONS ON POTENTIAL LIABILITIES WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.

 

Warranty Disclaimer

THE SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ADS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY SIMILAR WARRANTY, WHETHER SAID WARRANTY ARISES UNDER PROVISIONS OF ANY LAW OF THE UNITED STATES OR ANY STATE THEREOF OR ANY COUNTRY. ADS MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES ARE FREE OF RIGHTFUL CLAIMS OF ANY THIRD PARTY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS (INCLUDING PATENT AND TRADE SECRET RIGHTS). THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE SERVICES SHALL BE BORNE SOLELY BY THE SUBSCRIBER.

 

ADS MAKE NO WARRANTY ON UP-TIME, RESPONSE TIMES, LATENCY, MEAN-TIME BETWEEN FAILURES, QUALITY OF SERVICE, AND/OR QUALITY OF VOICE OR FAX COMMUNICATIONS. ADS EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SERVICES ARE APPROPRIATE FOR HIGH-RISK OR OTHER ACTIVITIES WHERE FAILURE OF THE SERVICE COULD RESULT IN SERIOUS HARM TO PERSONS OR PROPERTY.

 

ADS MAKES NO WARRANTY THAT THE SERVICES WILL MEET THE SUBSCRIBER REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. ADS IS NOT RESPONSIBLE FOR MESSAGES OR INFORMATION LOST OR MISDIRECTED DUE TO INTERRUPTIONS OR FLUCTUATIONS IN THE SERVICES OR THE INTERNET IN GENERAL. ADS IS NOT RESPONSIBLE FOR THE CONTENT OR FUNCTIONALITY OF ANY THIRD PARTY NETWORK USED IN CONNECTION WITH THE SERVICES.

 

ADS DOES NOT WARRANT THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH USE OF THE SERVICES OR ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICES. THE SUBSCRIBER ACKNOWLEDGE THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICES ARE AT THE SUBSCRIBER SOLE RISK AND DISCRETION AND ADS WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGE TO THE SUBSCRIBER OR THE SUBSCRIBER PROPERTY.

 

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE SUBSCRIBER FROM ADS, IT’S EMPLOYEES, RESELLERS, PARTNERS, OR AFFILIATES OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.

 

ALTHOUGH EVERY EFFORT IS MADE TO ENSURE THAT VOICEMAILS AND FAX TRANSMISSIONS ARE SECURE, ADS MAKES NO GUARANTEES OF SECURITY.

 

SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO THE SUBSCRIBER. TO THE EXTENT THAT ADS CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

 

LIMITATION OF LIABLITY

In no event shall ADS be held liable for indirect, special, incidental or consequential damages arising out of service provided hereunder, including but not limited to loss of profits or revenue, loss of use of equipment, lost data, costs of substitute equipment, or other costs exceeding the total fees paid by Subscriber during the period of three months immediately preceding the date on which the event giving rise to the claim occurred. 

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INDEMNIFICATION

To the maximum extent permitted by applicable law, The Subscriber shall indemnify and hold harmless, individually and collectively, ADS, its affiliates, agents, resellers, and other providers who furnish goods and services to The Subscriber in connection with the Services, and their officers, directors, managers, employees, and shareholders (the “Indemnified Parties”) from and against any and all liability, claims, losses (including loss of profits, revenue and goodwill), damages, fines, penalties, injuries to persons or property, costs, and expenses (including reasonable attorneys’ fees and dispute resolution expenses) arising from or related to (1) the use of or reliance upon the Applications or Services by The Subscriber or any third party acting upon The Subscriber permission, knowledge, authority or direction, (2) a breach of this Agreement by The Subscriber, (3) any negligent acts, omissions to act or willful misconduct by The Subscriber or any third party acting with The Subscriber permission, knowledge, authority or direction, (4) the inability to use the Applications or Services or failure or outage of the Applications or Services for any reason, including but not limited to those related to calling, “911” or other emergency responders, (5) the use of the Applications or Services in connection with a violation of any applicable law, code, regulation, or ordinance, and/or (6) the misappropriation, breach, violation, or infringement of any right, title or interest of any third party, including but not limited to, contractual rights, intellectual property rights (including patent, trademark, copyright, and trade secret rights), rights of privacy, and rights of publicity and personality.

 

DISPUTE RESOLUTION AND ARBITRATION

In the event of any dispute, Advanced Digital Systems does reserve the right to arbitration. This arbitration shall be conducted pursuant to the existing rules, regulations, and procedures of the American Arbitration Board. This arbitration shall be held in the County of Bergen, State of New Jersey. Any decision rendered by the arbitrator shall be final, conclusive and binding upon the parties to the arbitration and may be enforced by the judgment and order of any court having competent jurisdiction. Each party will pay the administrative fee charged by AAA and the cost of the AAA mediator and/or arbitrator shall be paid by each party in accordance with the AAA fee schedule in effect at the time of filing.

 

Any and all terms of this agreement will survive termination of service and be govern by the laws of the State of New Jersey.

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