Terms and Conditions
API TERMS AND CONDITIONS
These Terms and Conditions (the “Terms and Conditions”) supplement the API Terms of Service (the “Terms of Service”) (including any documents referenced therein, all of which are fully incorporated by reference within these Terms and Conditions). Capitalized terms not elsewhere defined in these Terms and Conditions will have the meaning ascribed to them in the Terms of Service.
1. Service Descriptions of Inbound Calling, Outbound Calling and SMS. The following describe Inbound Calling, Outbound Calling and SMS provided to You pursuant to the Service Order Form and Terms of Service.
(A) Inbound Calling provides the origination of voice traffic from the PSTN or an On-Net IP-enabled endpoint to Your (or Your User, customer’s or End User’s) premises via the Session Initiation Protocol (“SIP”). Inbound Calling is based on RFC 3261 (“SIP-Session Initiation Protocol”) and requires You to conform to RFC 3261 at Your sole expense. INBOUND CALLING is an Inbound call service ONLY. INBOUND CALLING EXCLUDES THE FOLLOWING:
a) Outbound Calling;
b) 911 / E911;
c) Directory services including, but not limited to, 411 and NPA-555-xxxx;
f) Any and all other x11 services;
g) Operator Services;
h) Collect Calling;
i) Any and all other operator, assisted, or intercept calling services;
j) Caller ID Name or Location;
k) Class 5 Features;
l) Toll Free numbers / inbound Toll Free calling (unless otherwise expressly agreed in writing between Bandwidth and You); and/or
m) 976, 900, and 1010xxx calling.
You may not (i) use or otherwise enable any TNs provided by Bandwidth (or its affiliates) at any time in connection with any Usage, SMS and/or any other form of traffic other than Usage, SMS and/or any other form of traffic from Bandwidth and its affiliates, or (ii) establish and/or operate peer-to-peer relationships with any third party(ies) with respect to any TNs provided by Bandwidth (or its affiliates) at any time. For clarity, “peer-to-peer relationships” mean direct network interconnection arrangements that permit Customer and any applicable third party to exchange traffic associated with TNs provided by Bandwidth directly to each other without utilizing Bandwidth’s network with respect to such traffic. Notwithstanding the foregoing, You will be responsible for all liability arising from its acts and omissions in establishing and/or operating such peer-to-peer relationships, and will defend, indemnify and hold harmless Bandwidth (and its affiliates) from and against any and all third party claims in relation to such acts and omissions in accordance with and subject to the terms of the Terms of Service.
(B) Outbound Calling provides the termination of IP voice traffic from Your (or Your User, customer’s or End User’s) premises to the PSTN or an On-Net IP-enabled endpoint. Outbound Calling is an outbound call service ONLY AND DOES NOT INCLUDE 911 / E911. OUTBOUND CALLING EXCLUDES THE FOLLOWING:
n) Inbound calling;
o) 911 / E911;
p) Operator Services;
q) Collect Calling;
r) Any and all other operator, assisted, or intercept calling services;
s) Class 5 Features; and/or
t) 976, 900, and 1010xxx calling.
Outbound Calling does not include N11 Services, including, but not limited to, 411, 511, 711, 811 and NPA-555-xxxx (“N11 Services”).
(C) SMS is a Short Message Service delivering messages between Your IP address(es) or domain(s) and Bandwidth’s SMS facilities. SMS is designed for a natural person and for person-to-person messaging only, meaning each SMS message must be initiated due to human interaction (as opposed to automated or timed messages). An SMS message may originate from a mobile phone, a computer or an Internet-based service, but the SMS message must be initiated due to human interaction, versus an automated or timed message. Each SMS message is viewed as a single instantiation of these definitions (i.e., if a message is transmitted from a natural person to an application and a subsequent message is transmitted from the application to a natural person, such as an SMS search function). Although the round-trip appears as though the SMS message originated from a natural person back to the same natural person, each SMS message is viewed individually. To that end, the initial SMS message in the foregoing example constitutes a single SMS message sent from a natural person to an application and the subsequent SMS message constitutes a single SMS message sent from an application to a natural person. Any SMS message originating other than from a natural person for person-to-person messaging constitutes a violation of the Acceptable Use Policy and a Default pursuant to the Terms of Service and these Terms and Conditions.
You may not (i) use or otherwise enable any TNs provided by Bandwidth (or its affiliates) at any time in connection with Usage, SMS and/or any other form of traffic other than Usage, SMS and/or any other form of traffic from Bandwidth and its affiliates, or (ii) establish and/or operate peer-to-peer relationships with any third party(ies) with respect to any TNs provided by Bandwidth (or its affiliates) at any time. Notwithstanding the foregoing, You will be responsible for all liability arising from its acts and omissions in establishing and/or operating such peer-to-peer relationships, and will defend, indemnify and hold harmless Bandwidth (and its affiliates) from and against any and all third party claims in relation to such acts and omissions in accordance with and subject to the Terms of Service.
All Bandwidth TNs used for message routing with SMS will be used for both Outbound and Inbound messaging:
Outbound - Outbound SMS delivers IP-originated messages over SIP or the Bandwidth API to Bandwidth and routes those messages to SMS-enabled TNs on the PSTN; and
Inbound - Inbound SMS routes SMS messages sent to an SMS-enabled TN on Bandwidth’s network to Bandwidth’s customers, including, without limitation, Your End Users, through the Internet using SIP or the Bandwidth API.
You may not use Bandwidth’s TNs or DID/DODs to route messages over any another provider’s network.
Maximum Messages Per Second: SMS limits the maximum number of SMS messages You may transmit measured on a per second basis. The maximum number of SMS messages per second You may transmit with respect to any TN is limited to one (1). For clarity, the foregoing maximum number of SMS messages per second You may transmit includes all SMS messages sent and/or received by all Your End Users on an aggregated basis with respect to any one (1) TN.
Message Rating: SMS rates SMS messages for billing purposes on a per SMS message sent and/or received basis. Billable components of each SMS message are based on: (i) the authorized IP sending an SMS message (“Outbound Message”), and (ii) You and/or subscriber of a TN or DID/DOD (also known as destination number) receiving an SMS message (“Inbound Message”). If any fee(s) is imposed by any destination network, including, without limitation, any international termination fee(s), Bandwidth will charge You such fee(s) and reserves the right to include an administrative or other fee(s) in addition to any such fee(s).
Service Limitations: SMS is an SMS messaging service only and does not provide any audio and/or voice capabilities and/or features. SMS is not intended for and may not be used for advertising, branding or other promotional activities. In addition to any other rights or remedies that Bandwidth may have under any applicable circumstances, Bandwidth, in its sole and unfettered discretion, may block any SMS messaging traffic Bandwidth deems to be in violation of the Terms of Service, these Terms and Conditions, the Acceptable Use Policy, and/or any agreements, arrangements and/or practices of or between Bandwidth and any carriers and/or other service providers. Bandwidth does not allow more than one (1) outbound message per second from any SMS-enabled TN. Any violation of any of the foregoing provisions of this paragraph could cause Your TN and/or any applicable TN to be blocked for outbound SMS message transmission by Bandwidth and/or traffic blocking and/or black-listing by any applicable receiving carriers and/or other service providers; Bandwidth does not guarantee removal from any applicable black-listed status. Bandwidth may block at any time any SMS messages deemed by Bandwidth in its sole and unfettered discretion to jeopardize the integrity of Bandwidth’s network (including, without limitation, due to any action taken and/or threatened by any third party carrier and/or other service provider); any such blockage will be without prejudice to any other right or remedy that Bandwidth may have due to any such SMS messages pursuant to the Terms of Service, these Terms and Conditions, the Acceptable Use Policy or otherwise. If any such blocking of any SMS messages occurs, Bandwidth may in its discretion attempt to block only the TNs breaching these Terms and Conditions and/or jeopardizing Bandwidth’s network; if the blocking of individual TNs is not feasible for any reason, as determined by Bandwidth in its sole and unfettered discretion, Bandwidth reserves the right to block all SMS message(s) initiated by You and/or any applicable End Users, customers and/or subscriber(s) of Yours. In the event Bandwidth blocks materially more TNs than the number of breaching TNs, You will have the right to terminate upon written notice to Bandwidth not later than thirty (30) days after such blocking. If Bandwidth blocks any SMS messages pursuant to this paragraph, Bandwidth will notify You and make commercially reasonable attempts to notify You in advance of such blockage; provided, however, Bandwidth will be under no obligation to provide any prior notification, including, without limitation, if circumstances do not permit delay of any blockage or other action by Bandwidth for any reason. You acknowledge and agree that SMS messages to or from You or Your End Users, customers and/or subscribers may be blocked by carriers or other service providers for reasons known or unknown to Bandwidth; Bandwidth is under no obligation to investigate or remedy any such blockage for You or any of Your End Users, customers or subscribers. Bandwidth does not guarantee delivery, regardless of the reason, of any SMS messages; You will indemnify and hold Bandwidth harmless with respect to any and all damages or losses that You, Your End Users, customers or subscribers and/or any third party sustains due to any SMS messages being delivered incorrectly or not at all.
Call Recording: The Inbound Calling and Outbound Calling may provide a function that allows the recording of individual telephone conversations. Bandwidth will retain any recording for one (1) year from the date of any applicable recording, unless the Terms of Service earlier terminate, in which event Bandwidth will have no further obligation to retain any recording thereafter. The laws regarding the notice, notification, and consent requirements for recording conversations vary from state to state. In some states, one must obtain consent from all parties to record a conversation. You (and any applicable End User) are solely responsible for complying with all federal, state, and local laws in any relevant jurisdiction when using this feature. Bandwidth expressly disclaims all liability with respect to the recording of telephone conversations. You agree to fully, finally, and forever release, discharge, hold harmless, and fully indemnify Bandwidth from and against any damages or liabilities of any kind related to the recording of any telephone conversations using either Inbound Calling or Outbound Calling.
2. E911/ Basic 911.
YOU ACKNOWLEDGE, UNDERSTAND AND AGREE THAT THESE TERMS AND CONDITIONS WILL BE STRICTLY LIMITED TO THE PROVISION TO YOU OF INBOUND CALLING, OUTBOUND CALLING AND SMS. YOU FURTHER ACKNOWLEDGE, UNDERSTAND AND AGREE THAT INBOUND CALLING, OUTBOUND CALLING AND/OR SMS DOES NOT CONSTITUTE “INTERCONNECTED VOIP SERVICE” AS DEFINED WITHIN 47 C.F.R. PART 9 AND, YOU WILL NOT CONFIGURE INBOUND CALLING, OUTBOUND CALLING AND/OR SMS IN ANY WAY THAT WOULD CONSTITUTE “INTERCONNECTED VOIP SERVICE” AS DEFINED WITHIN 47 C.F.R. PART 9. THEREFORE, NO E911 SERVICE OR BASIC 911 SERVICE WILL BE PROVIDED BY BANDWIDTH TO YOU, ANY END-USERS, OTHER CUSTOMERS, SUBSCRIBERS, OR ANY PERSON OR ENTITY PURSUANT TO THESE TERMS AND CONDITIONS OR THE INBOUND CALLING, OUTBOUND CALLING AND/OR SMS CONTEMPLATED BY THESE TERMS AND CONDITIONS. YOU ACKNOWLEDGE, UNDERSTAND AND AGREE THAT BANDWIDTH HAS NO INTENT TO AND WILL NOT PROVIDE E911 SERVICE OR BASIC 911 SERVICE PURSUANT TO THESE TERMS AND CONDITIONS OR THE INBOUND CALLING, OUTBOUND CALLING AND/OR SMS CONTEMPLATED BY THESE TERMS AND CONDITIONS. YOU WILL NOT REPRESENT IN ANY WAY OR THROUGH ANY MEANS TO ANY END-USERS, CUSTOMERS, SUBSCRIBERS, OR ANY PERSON OR ENTITY THAT BANDWIDTH PROVIDES ANY 911 / E911 SERVICE PURSUANT TO THESE TERMS AND CONDITIONS OR THE INBOUND CALLING, OUTBOUND CALLING AND/OR SMS CONTEMPLATED BY THESE TERMS AND CONDITIONS. YOU REPRESENT AND WARRANT TO BANDWIDTH THAT, IF YOU ARE AT ANY TIME REQUIRED TO PROVIDE ANY 911 / E911 SERVICES DUE TO ANY TELECOMMUNICATIONS RELATED SERVICES YOU SELL OR PROVIDE TO YOUR END-USERS, CUSTOMERS, SUBSCRIBERS, OR ANY PERSON OR ENTITY AT ANY TIME THAT ARE, IN WHOLE OR IN PART, ENABLED BY THE INBOUND CALLING, OUTBOUND CALLING AND/OR SMS CONTEMPLATED BY THESE TERMS AND CONDITIONS, THEN YOU WILL ENSURE THAT 911 / E911 SERVICES ARE FULLY PROVIDED IN COMPLIANCE WITH SUCH 47 C.F.R. PART 9.
The terms and conditions applicable to the Service and/or any DID, TFN and/or TN at any time will be identified through an Electronic Tool, the ordering process and/or other means.
You are strictly prohibited from displaying on any outbound caller ID any number for which You have not obtained from either Bandwidth or any other third party 911 services with respect to such number. By displaying any number in any outbound caller ID, You represent and warrant to Bandwidth that You have obtained from either Bandwidth or any other third party 911 services with respect to such number.
3. IP Originated Usage.
You represent and warrant to Bandwidth that all Your Outbound Calling and/or Usage will be IP Originated.
(i) You represent and warrant to Bandwidth that all of the services and capacity to be purchased from Bandwidth will be used by You to provide an “enhanced service” as defined in 47 C.F.R. Section 64.702(a) and/or an “information service” as defined in 47 U.S.C. Section 153(20).
(ii) If any ruling, decision or determination by the FCC, a PUC, any state regulatory agency, or any court concerning internet-enabled calls is inconsistent with the description of an IP Originated call as described in these Terms and Conditions, Bandwidth reserves the right to modify or amend the description to be consistent with such ruling, decision or determination. If any such modification or amendment materially adversely affects You, then You will have thirty (30) calendar days after such amendment or modification to notify Bandwidth in writing of such material adverse effect. Section 15 of the Terms of Service will apply upon Your delivery of such notice to Bandwidth. If You fail to notify Bandwidth in writing within such thirty (30) calendar day period, You will have accepted such amendment or modification.
(iii) If any third party asserts at any time that any of Your calls and/or Usage is not IP Originated, You will, at Your sole expense, cooperate with Bandwidth and provide reasonable evidence to demonstrate that any applicable calls are IP Originated.
(iv) If it is determined at any time that any calls and/or Usage sent to Bandwidth by You for termination are not IP Originated, in addition to any applicable Fees, You will pay Bandwidth a Non-IP Originated Surcharge of $0.10 per minute.
You must connect to Bandwidth’s network in a manner and at locations determined by Bandwidth. You will, at Your sole cost, be responsible: (i) for providing all equipment (including proxy servers), software, facilities and IP connectivity (including, without limitation, connectivity to Your End Users, customers or subscribers) necessary for Your Inbound Calling, Outbound Calling and/or SMS applications and Your network to operate with Inbound Calling, Outbound Calling and/or SMS, and for providing and ensuring the successful installation of all equipment and software necessary for Your End Users, customers or subscribers to use services sold to such End Users, customers or subscribers; (ii) to obtain and provide to Bandwidth, prior to installation of any Inbound Calling, Outbound Calling and/or SMS service offered by You to Your End Users, customers and/or subscribers, the IP address(es) for the proxy server, Your Inbound Calling, Outbound Calling, and/or SMS application and/or any other applicable hardware/software solution. You may cause Your End Users, customers and/or subscribers to deliver such information to You; provided, however, as between Bandwidth and You, all information required to support Your use of Inbound Calling, Outbound Calling and/or SMS will be supplied to Bandwidth by You. You will have the sole responsibility to input, validate and maintain accurate information with respect to Your End Users, customers and/or subscribers; You will furthermore be solely responsible for any and all support of and for Your End Users, customers, and/or subscribers as it relates to Inbound Calling, Outbound Calling and/or SMS. You are responsible for maintaining continuous availability to receive SMS messages from Bandwidth via IP connectivity. YOU WILL INDEMNIFY AND HOLD BANDWIDTH HARMLESS AGAINST ANY AND ALL CLAIMS AND EXPENSES RESULTING FROM THE FAILURE OF YOU, YOUR USERS AND/OR END USERS TO COMPLY WITH THIS SECTION.
If applicable, You and Bandwidth will reasonably cooperate with each other to test to ensure interoperability between Bandwidth and Your networks and systems. All necessary interoperability testing will be completed within a reasonable time. If after completion of initial interoperability, You plan to make upgrades, updates and/or enhancements (collectively “Configuration Changes”), You will notify Bandwidth prior to implementing a Configuration Change so that You and Bandwidth may work together in good faith to determine how best to proceed regarding such Configuration Change. If at any time an interoperability condition occurs that adversely affects Bandwidth’s network that cannot be adequately remedied within a reasonable period of time, taking into consideration the severity of the interoperability condition and the effect on Bandwidth’s network, Bandwidth may, at its sole discretion, suspend the provision of Inbound Calling, Outbound Calling and/or SMS.
6. Charges and Fees.
You represent and warrant to Bandwidth that You have received and reviewed the Fees described in the Terms of Service. All such Fees and/or any other applicable charges, fees, including, without limitation, with respect to the porting of TNs, will be subject to the Terms of Service and, if applicable, the terms and conditions of Your underlying provider of voice service(s) that You purchase and to which SMS has been added, if applicable. Miscellaneous charges and/or fees imposed by any third party carrier or any underlying provider from time to time, whether charged to or against Bandwidth, will be payable by You, including, without limitation, any cost recovery fee which shall represent an accurate and non-inflated recovery of the miscellaneous charges and/or fees to or against Bandwidth associated with the provision of Service(s) by Bandwidth to You. Billing increments will be in whole minute increments, except with respect to SMS.
Call Rating: Outbound Calling only provides Interstate, Intrastate, and, if expressly contracted in writing, International Call Termination. No outbound local calling or inbound calling service is provided.
Interstate Outbound Calling Fees: Bandwidth does not guarantee call delivery and may block specific routes at any time.
Intrastate Outbound Calling Fees: Bandwidth does not guarantee call delivery and may block specific routes at any time.
International Fees: Outbound Calling pursuant to these Terms and Conditions does not include International Call Termination unless expressly agreed in writing. If nonetheless utilized, Bandwidth’s then-prevailing applicable Fees will apply. All Fees applicable to International Call Termination are subject to change upon five (5) calendar days prior notice from Bandwidth. Bandwidth does not guarantee call delivery and may block specific routes at any time.
7. TN Availability.
Bandwidth will exercise commercially reasonable efforts to gain access to requested TNs, but Bandwidth does not guarantee TN availability. Bandwidth may, upon fourteen (14) business days prior written notice, reclaim any TNs that have not been used to pass traffic within the immediately preceding 120 day period. Bandwidth will not reclaim a TN without prior written notice to You followed by such fourteen (14) business day cure period if You remedy such non-use during such fourteen (14) day cure period.
8. Porting Numbers.
Bandwidth may require a completed and signed Letter of Authorization (“LOA”) for any existing telephone numbers You wish to port from another carrier to Bandwidth. Bandwidth may require a recent copy of the current phone bill which contains Your Billing Telephone Number (“BTN”) as well as a record of any numbers that need to be ported. Bandwidth must receive necessary LOA(s) and/or bill copy(ies) before Bandwidth will initiate a port request and obtain a Confirmed Port Date. The “Confirmed Port Date” is the date upon which the current voice provider has agreed to port a number(s) to Bandwidth. The Confirmed Port Date interval may in some cases take as long as one (1) to two (2) business weeks after You initiate the port request; since the port interval is a product of the accuracy of the information provided to Bandwidth by You, as well as the processing speed of Your current voice provider, Bandwidth makes no guarantees regarding the promptness of a port, however all ports will be provided consistent with applicable law.
9. Call Completion.
Bandwidth reserves the right to block or otherwise restrict termination of calls to any and all termination calling destinations, whether or not included in Fees provided to You, and without notice to You. Bandwidth does not guarantee call completion, and the failure to complete any or all calls, regardless of reason, will not constitute a breach of these Terms of Service. Bandwidth does not guarantee call completion, and the failure to complete any or all calls, regardless of reason, shall not constitute a breach of the Terms of Service and/or these Terms and Conditions. NO SERVICE LEVEL AGREEMENT OR SLA APPLIES TO OUTBOUND CALLING.
From time to time, Bandwidth may request from You a forecast of expected Usage volumes and/or TN procurement. You will cooperate with such requests. In the event You anticipate changes in Usage volumes, You will proactively contact Bandwidth to review such changes. Bandwidth will use commercially reasonable efforts to maintain adequate capacity to meet Your forecasts. Bandwidth’s failure to adequately provide capacity, regardless of reason, will not constitute a breach of the Terms of Service or these Terms and Conditions.
11. Responsibility to Control and Manage Traffic.
In addition to any other terms and conditions of the Terms of Service and/or these Terms and Conditions, You will bear the following responsibilities in connection with Bandwidth’s provision of Outbound Calling: (i) You will manage the integrity of the traffic egressing Your network, and (ii) in addition to Your obligations pursuant to Section 12 below of these Terms and Conditions, You will manage and correct, as necessary, any fraudulent calling patterns or calling patterns perceived as fraudulent that may harm Bandwidth’s network. If You fail to comply with the foregoing obligations of this Section 11, (i) Bandwidth will have the right (but not the obligation) to take protective action against You to protect Bandwidth’s egress network. Bandwidth’s protective actions may include, without limitation, the temporary blocking of Your traffic until the applicable problem is resolved in Bandwidth’s reasonable discretion.
You will not participate in or assist in any fraudulent Usage, in any form or by any means, either You, Your Users, Your customers and/or any End Users. If You suspect, know of, or should have known of any fraudulent Usage, You will immediately stop all fraudulent Usage and notify Bandwidth. You acknowledge, understand and agree that Bandwidth does not provide, is not required to provide, and does not warrant, any fraud prevention. If Bandwidth becomes aware of unusual Usage volumes or patterns, Bandwidth will make commercially reasonable attempts to notify You; provided, however, Bandwidth will have no obligation to notify You of any such volumes or patterns. Bandwidth’s sole obligation to You with respect to any actual, alleged or suspected fraudulent Usage will be to reasonably cooperate with You, upon Your request and at no expense to Bandwidth, to assist Your efforts to stop any fraudulent Usage that You report to Bandwidth. You will be solely responsible for all risks, expenses and liabilities arising from or relating to fraudulent Usage by You, Your Users, Your customers and/or Your End Users, or any other person or entity directly or indirectly utilizing Inbound Calling, Outbound Calling or SMS. Notwithstanding anything in this Section 12 to the contrary, You are and will remain solely responsible for any and all Usage, fraudulent or otherwise.
13. Regulatory Responsibilities.
You (i) will be solely responsible for and will undertake all required action(s) before the FCC, any PUC, any state regulatory agency, any court or any other controlling regulatory bodies, agencies, commissions or other authority, (ii) will obtain any required governmental approval(s), and (iii) will fully comply with any and all applicable laws, regulations, including, without limitation, all applicable and/or FCC requirements, such as CALEA and CPNI, in each case as such actions, approvals and/or laws and regulations apply or relate to the utilization of Inbound Calling, Outbound Calling and/or SMS by You, Your Users, Your customers, Your End Users, or any other person or entity to which You provide any services utilizing Inbound Calling, Outbound Calling and/or SMS. You will be solely responsible for compliance by You (and by Your End Users, customers and/or subscribers) with any applicable CTIA Guidelines applicable to any utilization of SMS by You, Your End Users, subscribers or any other person or entity to which You provide any services utilizing SMS. Bandwidth reserves the right to take any action necessary for Bandwidth to comply with any applicable CTIA Guidelines.
Bandwidth has no relationship with or obligation to any of Your End Users or any other person or entity to which You provide any services utilizing Inbound Calling, Outbound Calling and/or SMS, none of whom is a third party beneficiary of the Terms of Service or these Terms and Conditions. You are solely responsible for all pricing, billing and collections, and/or compliance with any applicable laws or regulations related to any services You provide to Your End Users or any other person or entity to which You provide any services utilizing Inbound Calling, Outbound Calling and/or SMS. You will provide technical support to Your End Users and will conduct customary problem resolution and troubleshooting activities directly with Your End Users to determine whether any condition affecting any Service(s) is attributable to Bandwidth’s network prior to reporting a Service Outage pursuant to the Terms of Service.
15. Use by Your End Users, Customers and/or Subscribers.
You will be solely responsible for the evaluation and qualification of Your actual and prospective End Users, customers and/or subscribers’ SMS use cases to ensure such use cases follow applicable CTIA Guidelines for acceptable peer-to-peer traffic. You will obtain use cases from all of Your End Users, customers and/or subscribers and obtain the right to audit all such use cases. You will include a provision in all contracts with such End Users, customers and/or subscribers to allow You to provide any use case to Bandwidth, Bandwidth’s SMS messaging partners and the Tier-one Operator Community, including, without limitation, Verizon Wireless, T-Mobile USA, AT&T Wireless and Sprint Wireless. Bandwidth will notify You of the Tier One Operator Community’s approval and Bandwidth will pass SMS messaging traffic only to the approving Tier-one Operators. You understand and agree Bandwidth does not make any representations or warranties with regard to the identification or blockage by SMS of any spam, viruses, malware or inappropriate content. Prior to implementation of any prospective End User, customer or subscriber, if requested by Bandwidth, You will provide to Bandwidth and Bandwidth’s messaging partners all use cases requested prior to implementation of such End User, customer or subscriber and will provide all other information reasonably requested by Bandwidth and/or Bandwidth’s messaging partners with respect to such End User, customer or subscriber’s anticipated use of SMS to permit Bandwidth and/or Bandwidth’s messaging partners to evaluate such anticipated use and to ensure that such use follows CTIA Guidelines for acceptable peer-to-peer traffic.
16. Call Detail Records.
If Bandwidth makes CDRs available to You via the API at any time, You will obtain API documentation from Bandwidth. Bandwidth does not guarantee CDR availability, nor does it warrant the accuracy of the data available via the API; the failure to provide CDRs, regardless of reason, will not constitute a breach of the Terms of Service or these Terms and Conditions.
17. Bandwidth Right to Modify Terms and Conditions.
Bandwidth may amend or modify these Terms and Conditions and/or Inbound Calling, Outbound Calling and/or SMS pursuant to the Terms of Service at any time.
18. Conflicting or Controlling Terms.
In the event of any conflict between the Terms of Service (exclusive of these Terms and Conditions) and these Terms and Conditions, then these Terms and Conditions will control with respect to any matter related to Inbound Calling, Outbound Calling and/or SMS, as the case may be.
You will indemnify, defend, and hold harmless Bandwidth, its officers, employees, agents, subsidiaries (such subsidiaries including but not limited to Bandwidth.com CLEC, LLC) and affiliates from and against any and all Your or third party claims, costs, losses, damages or liability of whatever nature arising from or relating to Your breach of this Agreement, Your use (and use by Your End Users, customers and/or subscribers) of Inbound Calling, Outbound Calling and/or SMS, and/or Your failure to comply with these Terms and Conditions, including, without limitation, any applicable CTIA Guidelines; provided, however, the foregoing shall not apply to any such claims, costs, losses, damages or liability of whatever nature caused by any act or omission of Bandwidth or its directors, officers, employees, or agents. Bandwidth agrees to defend, indemnify and hold You, and Your officers, directors, employees and agents harmless from claims arising from any third party claims of intellectual property rights infringement arising from the Services provided by Bandwidth pursuant to these Terms and Conditions; provided, however, notwithstanding the foregoing, Bandwidth has no obligation to indemnify You for claims for intellectual property infringement arising from (i) use of the Services by You in a manner other than as contemplated or prescribed by these Terms and Conditions; (ii) Bandwidth’s compliance with Your specific (i.e., not generally used or applied by other third party customers of Bandwidth) designs where such claims would not have arisen but for such compliance; or (iii) infringement arising from a combination with, addition to, or modification of the Services by or for You without Bandwidth’s knowledge and/or consent. If any Service becomes, or is likely to become, the subject of a claim of infringement of intellectual property, Bandwidth will, in addition to indemnifying You as provided in this Section 19, promptly at Bandwidth’s expense use best efforts to: (x) secure the right to continue using the Service; or (y) replace or modify the Service to make it non-infringing, provided that any such replacement or modification will not degrade the performance or quality of the affected component of the Services. In the event neither of such actions can be accomplished by Bandwidth, and only in such event, either Bandwidth or You may at its option terminate without liability upon notice to the other.
20. Limitation of Liability.
EXCEPT PURSUANT TO SECTION 10 OF THE TERMS OF SERVICE, SECTION 6 ABOVE, SECTION 12 ABOVE, SECTION 15 ABOVE AND/OR SECTION 19 ABOVE, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS EXCEED ONE THOUSAND DOLLARS ($1,000). IN ADDITION, NEITHER YOU NOR BANDWIDTH NOR ITS LICENSORS WILL BE LIABLE IN ANY EVENT FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
21. Additional Terms:
The following applies to Toll Free Service only:
General: Bandwidth is the Responsible Organization for TFNs for Toll Free Service. Toll Free Service may be used only as a toll-free inbound-only service and does not provide any outbound calling, 911 / E911 service, 411 or any Operator Services. You will not use (or reconfigure to support such use) either Toll Free Service or any TFN obtained from Bandwidth in connection with Toll Free Service for any outbound calls placed by You or Your End Users, or any Improper Calls. In addition to any rights or remedies that may be available pursuant to the Terms of Service and/or the Acceptable Use Policy, Bandwidth may immediately take any action to prevent Improper Calls, including, without limitation, denying Toll Free Service to particular numbers or terminating any Toll Free Service. If You (or, to the extent applicable, Your Users, customers and/or End Users) uses or reconfigures Toll Free service to place outbound calls, You will pay Bandwidth for any such calls at Bandwidth’s then-current applicable Fees. YOU WILL INDEMNIFY AND HOLD HARMLESS BANDWIDTH, ITS OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, COSTS OR DAMAGES OF WHATEVER NATURE ARISING FORM OR RELATING TO YOUR USE (AND/OR THE USE BY ANY CUSTOMER AND/OR END USER OF CUSTOMER) OF TOLL FREE SERVICE IN VIOLATION OF THESE TERMS AND CONDITIONS.
Regulatory Matters: If any calls placed to You via Toll Free Service contain a privacy indicator imposed by the originating telephone subscriber, Bandwidth will provide call detail information to You, notwithstanding the privacy indication; provided, however, You acknowledge and agree that (i) You will use the telephone number and billing information for billing and collection, routing, screening and completion of the originating telephone subscriber’s call or transaction; (ii) You will not reuse and/or sell the TFN or billing information without first notifying the originating telephone subscriber and obtaining affirmative written consent of such subscriber for such reuse or sale; and (iii) except as permitted in (i) or (ii) above, You are prohibited from using any information derived from ANI, CPN or the charge number service for any purpose other than (A) performing services or transactions that are the subject of the originating subscriber’s telephone number, (B) ensuring network performance, security and the effectiveness of call delivery; (C) compiling, using and disclosing aggregate information, and (D) complying with applicable law or legal process.
Bandwidth will determine the terminating carrier based on the terminating ANI.
The following applies to CNAM only, if made available by Bandwidth to You from time to time: You may request CNAM. Upon the submission of any request for CNAM, You represent and warrants that You have obtained all necessary approvals for CNAM from the applicable subscriber in such request; You will promptly provide Bandwidth with documentation evidencing Your receipt of such subscriber approval upon Bandwidth’s request. You will retain such documentation for at least twelve (12) months after submission of the applicable request. Bandwidth may, in its sole discretion, refuse to submit the applicable subscriber information for CNAM if You fail to timely provide such documentation to Bandwidth. YOU WILL INDEMNIFY AND HOLD BANDWIDTH HARMLESS AGAINST ANY AND ALL CLAIMS AND EXPENSES RESULTING FROM YOUR FAILURE TO COMPLY WITH THIS SECTION, INCLUDING, WITHOUT LIMITATION, CLAIMS MADE BY SUBSCRIBERS AND/OR ANY GOVERNMENTAL AUTHORITY.
“ANI” means automatic number identification.
“CALEA” means Communications Assistance for Law Enforcement Act regulated by the FCC.
“Call Signaling” means the process of sending control information during a call.
“Class 5 Features” means additional phones features beyond standard routing and audio. For example, both call hunting and voicemail are Class 5 Features.
“CNAM” means Caller ID with Name.
“Collect Calling” means a service in which calling party is able to place a call at the called party's expense.
“CPN” means called party number.
“Directory Listing” means the inclusion of Your activated TN in the United States or Canada and associated subscriber name in a relevant public database for directory listing.
“End User” means an entity or individual receiving service from You.
“Improper Calls” means call types that (i) would result in Bandwidth incurring originating access charges, local exchange carrier “DIP” fees or other call types that may be subject to a reverse billing process, (ii) 911 / E911 or other emergency service calls; (iii) any unauthorized or fraudulent communications on pay-per-call numbers, information service calls, directory assistance calls or the like; and/or (iv) mass calling events, excessive non-completed and invalid calls and failed calls due to Your inadequate capacity.
“International Call Termination” means outbound calls destined for anywhere outside of the 48 contiguous United States; for purposes of the Terms of Service and these Terms and Conditions, Alaska and Hawaii will be treated as International Call Termination.
“Interstate” means a call which is originated and terminated in different states.
“Intrastate” means a call which is originated and terminated in the same state.
“IP Originated” means traffic utilizing TCP/IP as a transmission protocol from the originating equipment (i.e. SIP phones, SIP PBX, TDM to SIP Gateway, IP-adapter, etc.) to a TCP/IP gateway, for termination to an IP destination or the PSTN.
“LIDB” means Line Information Database.
“On-Net” means calls that are connected on a single network (such as calls through the Internet).
“Operator Services” means live operator assistance to caller usually when dialing “0”.
“NADP” means the North American Dialing (or Numbering) Plan.
“PUC” means a public utilities commission (or other similar governmental agency).
“Responsible Organization” means the party hereto that is responsible for managing and administering the account records in the Toll Free Service Management System Database.
“Short Message Service” or “SMS” is the text communication service component of mobile communication systems that allows the exchange of short text messages between fixed line or mobile phone devices.
“TCP/IP” means Transmission Control Protocol / Internet Protocol.
“TN” means a telephone number assigned by Bandwidth to You (or that You port to Bandwidth) and is used by You in connection with Inbound Calling.
“TFN” means a telephone number that supports NADP and is assigned by Bandwidth to You that You port to Bandwidth for use with the Bandwidth SIP Toll-Free service.
“Toll Free Calling” or “Toll Free” means a call placed to a Toll Free number.
“Toll Free Service” means an IP termination service for PSTN originated calls to terminate to TFNs provided by Bandwidth. Bandwidth is the Responsible Organization for TFNs for Toll Free Service. Toll Free Service may be used only as a toll-free inbound-only service and does not provide any outbound calling, 911 / E911 service, 411 or any Operator Services.
“Usage” means call traffic (including SMS) measured in units, usually in minutes or seconds (except with respect to SMS).