Terms of Service
API TERMS OF SERVICE
Please read these API Terms of Service (the “Terms of Service”) carefully.
clicking “I Agree,” you agree to these Terms of Service on behalf of yourself (or the entity on behalf of which you are setting up an account) (“You”). Your agreement to these Terms of Service will be an agreement between You and Bandwidth.com, Inc. (“Bandwidth”). You represent and warrant to Bandwidth that you have authority to bind You to these Terms of Service.
If You do not agree to these Terms of Service, You are not authorized to use the application programming interface (“API”) and/or the Services (as defined below). Your use of the API and/or the Services also constitutes Your acceptance of these Terms of Service, as well as the Acceptable Use Policy (as defined below) and any applicable Terms and Conditions (as defined below) applicable to the Services You utilize from time to time in connection with the API, each of which is incorporated in these Terms of Service by reference.
These Terms of Service are subject to change from time to time as determined by Bandwidth in its discretion. Modified and/or updated versions of these Terms of Service will be posted at www.bandwidth.com/legal. You should check www.bandwidth.com/legal regularly for modified and/or updated versions of these Terms of Service.
Bandwidth will provide You notice of any material changes to these Terms of Service. Except as otherwise determined by Bandwidth, modified and/or updated versions of these Terms of Service will be effective immediately upon posting; modified and/or updated versions of these Terms of Service will be identified by the date, month and year they become effective.
THESE TERMS OF SERVICE INCLUDE A MANDATORY ARBITRATION PROVISION THAT DISALLOWS CLASS ACTIONS, A CLASS ACTION WAIVER PROVISION, AND A JURY WAIVER PROVISION.
You must incorporate these Terms of Service into the products and/or services that You create utilizing the API and/or the Services. You must ensure that Your Users, customers and/or end users comply with these Terms of Service, the Acceptable Use Policy and/or any applicable Terms and Conditions. You will be solely responsible if Your Users, customers and/or end users fail to comply with these Terms of Service, the Acceptable Use Policy and/or any applicable Terms and Conditions.
1. The API and the Services
A. Use of the API and/or the Services will permit You to obtain from Bandwidth telephone number(s) and certain telecommunication services associated with such telephone number(s), including Inbound Calling (as defined below), Outbound Calling (as defined below), and SMS (as defined below) (the “Services”).
You may write software application(s) and/or website(s) (each an “Application”) that interfaces with the API and/or the Services. Bandwidth may modify or republish the API for any or all Services from time to time; You are solely responsible to ensure that any calls or requests that Your Applications make to or utilizing the API and/or the Services will properly function with the then-current API. Bandwidth will use commercially reasonable efforts to inform You of any modifications to the API so You can make appropriate changes to Your Applications, but, except as otherwise provided below, Bandwidth will have no obligation to do so.
Your Applications may make calls or requests to the API and/or the Services, and make or receive phone calls and/or SMS messages, only if such uses comply with these Terms of Service, the Acceptable Use Policy and any applicable Terms and Conditions. You are solely responsible for Your Applications and any phone calls and/or SMS messages made or received utilizing the API and/or the Services.
B. You are solely responsible for the development, maintenance and operation of Your Applications. You represent and warrant to Bandwidth that You: (i) have all consents, licenses, rights, and title to use and display Your Applications; and (ii) Your Applications do not (A) violate or infringe any rights of either Bandwidth or any third party, (B) defame, invade the privacy or publicity of, or violate any third party; and (iii) have not designed Your Applications for use in or the facilitation of any discriminatory or illegal activity.
C. YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT THE SERVICES ARE INTERNET BASED AND THEREFORE 911/E911 SERVICES, IF APPLICABLE, ARE DIFFERENT FROM TRADITIONAL WIRELINE BASED services AND are OR MAY BE only provided with CERTAIN SERVICES IF SPECIFICALLY DEFINED IN APPLICABLE TERMS AND CONDITIONS, WHICH ARE FULLY INCORPORATED HEREIN BY REFERENCE. YOU ACKNOWLEDGE AND AGREE THAT NEITHER BANDWIDTH, ITS UNDERLYING CARRIER(S), NOR ANY OTHER THIRD PARTIES INVOLVED IN THE ROUTING, HANDLING, DELIVERY, OR ANSWERING OF EMERGENCY SERVICES OR IN RESPONDING TO EMERGENCY CALLS, NOR THEIR OFFICERS OR EMPLOYEES, MAY BE HELD LIABLE FOR ANY CLAIM, DAMAGE, LOSS, FINE, PENALTY OR COST (INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES) AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION, ARISING FROM OR RELATING TO THE PROVISION OF ALL TYPES OF EMERGENCY SERVICES TO YOU. YOU FURTHER AGREE AND ACKNOWLEDGE THAT YOU INDEMNIFY AND HOLD HARMLESS BANDWIDTH FROM ANY CLAIM OR ACTION FOR ANY CALLER PLACING SUCH A CALL WITHOUT REGARD TO WHETHER THE CALLER IS AN EMPLOYEE OR CUSTOMER OF BANDWIDTH. YOU ACKNOWLEDGE AND AGREE THAT ANY INJURY ARISING OUT OF A LACK OF OR MISROUTING OF 911 CALLS, REGARDLESS OF WHETHER THE CALL FAILED OR WAS ROUTED BY A PUBLIC SAFETY ANSWERING POINT OR AN OFFICIAL EMERGENCY OPERATOR, IS NEITHER THE FAULT NOR LIABILITY OF BANDWIDTH AND YOU HOLD BANDWIDTH and ITS affiliates, AS WELL AS THEir RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS HARMLESS FROM ANY DAMAGES OR LIABILITIES. THE LIMITATIONS APPLY TO ALL CLAIMS REGARDLESS OF WHETHER THEY ARE BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY OTHER THEORIES OF LIABILITY.
D. As used in these Terms of Service the terms “You” and “Your” encompasses each user accessing the API and/or the Service by means of a valid account established by You, including, if you are a corporation or other similar legal entity, all employees of Your corporation or other similar entity (“Users”). You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service, and for paying all third-party access charges (e.g., ISP, telecommunications) incurred while using the API and/or the Services.
2. Use of Intellectual Property
A. Bandwidth grants to You, subject to these Terms of Service, an individual, personal, limited, non-sublicensable, non-exclusive, non-transferable and revocable right during the Term (as defined below) to permit those Users authorized by You or on Your behalf to use the API and/or the Services in accordance with these Terms of Service. You (and, if You are a corporation or other similar legal entity, Your Users) will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the API and/or the Services; (ii) modify, translate or create derivative works based on the API and/or the Services; (iii) rent, lease, distribute, sell, resell, assign, display, host, outsource, disclose or otherwise commercially exploit or otherwise transfer rights to the API and/or the Services or make the API and/or the Services available to any third party; (iv) use the API and/or the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove any proprietary notices or labels on the API and/or the Services; or (vi) copy, reproduce, post or transmit the API and/or the Services in any form or by any means, including, without limitation, electronic, mechanical, photocopying, recording or other means. You (and, if You are a corporation or other similar legal entity, Your Users) will make every reasonable effort to prevent unauthorized third parties from accessing the API and/or the Services. You acknowledge that Bandwidth and its licensors retain exclusive ownership throughout the world of the API and/or the Services, any portions or copies thereof, and all rights therein, including, without limitation, any suggestions, enhancement requests, feedback, recommendation or other information provided by You or any other party relating to the Services. Upon termination of these Terms of Service for any reason, You (and, if You are a corporation or other similar legal entity, Your Users) will cease to use or have access to the API and/or the Services.
B. The API and/or the Services provided to You and all information, documents and materials on Bandwidth’s websites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All of Bandwidth’s websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “Marks”) are and will at all times remain Bandwidth’s exclusive property. Subject to these Terms of Service, Bandwidth grants to You an individual, personal, limited, non-sublicensable, non-exclusive, non-transferable and revocable right during the Term to display the Marks solely to promote or advertise that You use the API and/or the Services. Notwithstanding the foregoing, You may not use any of Bandwidth’s Marks (i) except as otherwise expressly provided herein; (ii) to imply an affiliation with, endorsement of, or other similar relationship with Bandwidth; (iii) to disparage Bandwidth or its products and/or services; or (iv) in connection with any website or other materials that violates the Acceptable Use Policy or any applicable law or regulation. Any permissible use of the Marks will be in a manner consistent with any trademark guidelines that Bandwidth may provide to You from time to time and will not reflect unfavorably on the goodwill or reputation of Bandwidth. Bandwidth may revoke any rights to display any Marks in connection with Your Application at any time.
C. You acknowledge and agree that the API and/or the Services may be incorporated into, and may incorporate itself, software and other technology owned and controlled by third parties. Bandwidth may incorporate such third party software or technology to: (i) add new or additional functionality, or (ii) improve the technical performance of the API and/or the Services. Any such third party software or technology that is incorporated in the API falls under the scope of these Terms of Service. Any and all other third party software or technology that may be distributed together with the API, including, without limitation, any open source software, will be subject to You expressly accepting a license agreement with the third party (subject to the termination rights stated in Section 8(b) below. You acknowledge and agree that You will not enter into a contractual relationship with Bandwidth regarding such third party software or technology and You will look solely to the applicable third party and not to Bandwidth to enforce any of Your rights.
D. You grant to Bandwidth the non-exclusive, worldwide right to (i) use, copy, transmit and display any data, information or other materials provided to Bandwidth by You in the course of using the API and/or the Services, including, without limitation, audio recordings and call logs (“Your Data”) solely to the extent necessary to provide the Services to You, and (ii) compile statistical analyses of Your Data on an anonymized basis (and in conjunction with similar data aggregated in connection with the use of the Services by other Bandwidth customers) to improve Bandwidth’s network, products, Services and/or offerings. You acknowledge and agree that Your Data may be transferred outside of the country or other jurisdiction where You or Your Users are located. In addition, You acknowledge and agree that it is Your obligation to inform third parties of the processing of Your Data and to ensure that any required third parties have given their consent to such processing as required by all applicable data protection legislation. You will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Your Data.
E. Subject to the terms and conditions of Section 8(E) below, Bandwidth will use commercially reasonable efforts to store Your Data generated by use of the API and/or the Services in a manner consistent with generally accepted industry standards or as described in Bandwidth’s policy(ies) provided to You from time to time or as posted at www.bandwidth.com/legal from time to time; provided, however, Bandwidth will have no liability for any damage, liabilities or losses (including, without limitation, any loss of Your Data or profits) that may occur due to the loss of Your Data.
F. Except as provided above, and specifically excluding the API and/or the Services, You retain all right, title and interest, including, without limitation, all copyright, trademark, patent and other intellectual property rights, to Your Applications and Your Data.
G. During and after the Term, You will not assert (and You will not authorize, assist or encourage any third party to assert) any patent or other intellectual property infringement claim against Bandwidth with respect to any Services that You use during the Term.
3. Restrictions and Policies
A. You (or, to the extent applicable, Your Users, customers and/or end users) will comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with Your use of the API and/or the Services, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which Bandwidth controls and operates the API and/or the Services. You (or, to the extent applicable, Your Users, customers and/or end users) will comply with the Acceptable Use Policy, posted by Bandwidth from time to time at www.bandwidth.com/legal, which is incorporated by reference into these Terms of Service.
B. Bandwidth respects the privacy of its users. Bandwidth provides information such as Your name, address, and credit card number to organizations (such as credit verification and billing services) to ensure that Bandwidth receives proper payment for Your use of the API and/or the Services. Bandwidth will not share, rent, sell or trade personal information (including, without limitation, Your e-mail addresses) that identifies You to third parties. Bandwidth will not share, rent, sell or trade Your Data; provided, however, Bandwidth may compile statistical analyses of Your Data on an anonymized basis (and in conjunction with similar data aggregated in connection with the use of the Services by other Bandwidth customers) to improve Bandwidth’s network, products, Services and/or offerings. Bandwidth may use this information to contact You to ensure that You are satisfied with Bandwidth products or services, learn about any ideas You may have to improve Bandwidth’s products, services or offerings, call Your attention to additional products, services or offerings provided by Bandwidth, and communicate other information that Bandwidth believes will be useful to You.
Bandwidth will abide by applicable CPNI regulations. You agree and understand that it may be necessary for Bandwidth in the course of providing the Services to access, use or disclose Your or Your Users, customers and/or end users’ information, including, without limitation, pursuant to subpoenas duces tecum (and similar subpoenas) or court orders and other actions of governmental agencies or entities.
C. Bandwidth will have no liability to You for any unauthorized access or use, corruption, deletion, destruction or Loss of any of Your Data. In addition to Your obligations pursuant to Section 7 below, You acknowledge that You will protect and backup Your Data.
A. Bandwidth warrants that the Service(s) performed under these Terms of Service will be performed in a professional manner, in accordance with generally accepted industry standards then in effect for the Service(s) and by Bandwidth personnel having the requisite qualifications to perform the Service(s). Bandwidth, or its designee(s), will provide e-mail support during customary business hours except on Bandwidth, or designee(s), holidays, but Bandwidth has no obligation to provide You with hard-copy documentation, upgrades, enhancements, modifications or other support unless specifically contracted for. For clarity, Bandwidth will have no obligation to any third party, including, without limitation, Your Users, customers and/or end users.
B. Bandwidth may from time to time interrupt or otherwise impact the Services for maintenance. Bandwidth will use commercially reasonable efforts to perform such maintenance in a manner that will not unreasonably interrupt the Services. Bandwidth normally will perform maintenance between the hours of 12:00 AM and 6:00 AM Eastern.
C. If You believe that a loss or material degradation of any Service(s) has occurred (“Service Event”), You will first conduct customary problem isolation, resolution and troubleshooting activities. If You believe that the Service Event is attributable to or related to Bandwidth or Bandwidth’s network, You will notify Bandwidth’s Customer Care department via email, calling, or by any Electronic Tools provided by Bandwidth from time to time, to report the Service Outage(s) and initiate an investigation of the cause and remedy of such Service Event (“Trouble Ticket”). Once a Trouble Ticket(s) has been opened, Bandwidth’s appropriate personnel will initiate diagnostic testing and isolation activities to determine the source and severity of the Service Event(s) and suggest a remedy to, or enact a remedy on Your behalf; You and Bandwidth will cooperate to restore Service(s) as soon as reasonably practicable.
5. Provision of Contact and Billing Information and Payment of Fees
A. You agree to pay Bandwidth the Fees as set forth in the Rate Sheet or any other material(s) provided to You (the “Fees”), which Fees include all applicable federal, state or local taxes and surcharges. You will pay any applicable Fees for porting telephone numbers into or out of the Services as provided in the Rate Sheet or any other material(s) provided to You. Bandwidth retains the right to charge You for actual and reasonable costs incurred by Bandwidth from time to time related to Bandwidth’s compliance with court orders and other actions of governmental agencies or entities, including, without limitation, subpoenas duces tecum (and similar subpoenas), related to telephone numbers and other information related to or associated with You or Your Users, customers and/or end users. All Fees under these Terms of Service are irrevocable and nonrefundable.
B. You agree to provide Bandwidth with accurate billing information and with truthful, accurate and complete contact information, including Your legal name, company name, street address, e-mail address and telephone number. Bandwidth will endeavor to contact You only during normal business hours; however, You will be available at all times to assist Bandwidth to respond as reasonably necessary to applicable law enforcement or other similar inquiries, which can be time-sensitive. You will update this information within thirty (30) days of any change to it. If the contact information You have provided is false or fraudulent, Bandwidth reserves the right to terminate Your access to the API and/or the Services immediately without any obligation to return Your Data.
C. For credit card payments, Your account will be considered delinquent if Your credit card company refuses for any reason to pay the amount billed to it.
D. Unpaid charges, if any, are subject to interest of one and one-half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection.
E. If You believe Bandwidth has charged You incorrectly, You must contact Bandwidth in writing no later than thirty (30) days after the date of the first billing statement in which the error or problem appeared to receive an adjustment or credit.
F. Your access to the Service may be suspended if Your account is delinquent for any reason, including, without limitation, pursuant to Section 5(C) above. Bandwidth may impose a charge to restore Your Data from delinquent accounts. Bandwidth’s suspension of the Services based on Your failure to make payment will not excuse You from Your obligation to make payment(s). Any account which is suspended for more than thirty (30) days will be terminated without any obligation on the part of Bandwidth to maintain Your Data.
G. Bandwidth retains the right to charge, including any amended or corrected amounts previously charged, for Service(s) for a period of up to twelve (12) months after the date Bandwidth provides the Service(s) to You. For the duration of this period, Bandwidth will not be deemed to have waived any rights with regard to charging for the provided Service(s) that are subject to this period, nor will any legal or equitable doctrines apply, including estoppel or laches.
6. Publicity and Marketing
You grant Bandwidth the right to use Your name, mark and logo on Bandwidth’s website(s) and in Bandwidth’s marketing materials and to publicly identify You as Bandwidth’s customer from time to time solely to promote or advertise that You use the API and/or the Services.
7. Passwords and Security
You will choose or be given all applicable passwords to use in connection with the API and/or the Services. You are entirely responsible for maintaining the confidentiality of Your passwords and account (including, if applicable, the passwords and accounts of each User accessing the Services by means of an account established by You). Furthermore, You are entirely responsible for any and all activities that occur under Your account (including, if applicable, the accounts of each User accessing the API and/or the Services by means of an account established by You), and You will ensure that You exit from Your account at the end of each session. You will notify Bandwidth immediately of any unauthorized use of Your account (including, if applicable, the passwords and accounts of each User accessing the API and/or Services by means of an account established by You) or any other breach of security. Bandwidth cannot and will not be liable for any loss or damage arising from Your failure to comply with these requirements.
A. The term (“Term”) to which these Terms of Service applies will begin once You accept these Terms of Service as described above. These Terms of Service will apply until terminated by You or Bandwidth pursuant to these Terms of Service.
B. You may terminate these Terms of Service with or without cause at any time at Your convenience by closing Your account.
C. If Bandwidth determines, in its discretion, that (i) Your use (or, to the extent applicable, the use of Your Users, customers and/or end users) of the API and/or any Service(s) (or the specific method or technology utilized by You and/or Your Users, customers and/or end users) materially and adversely interferes with or otherwise places in jeopardy Bandwidth’s network, other customers, partners and/or the overall business(es) of Bandwidth or any of Bandwidth’s other customers or partners, (ii) You (or, to the extent applicable, Your Users, customers and/or end users) violate any provision of the Acceptable Use Policy or Bandwidth reasonably concludes that You (or, to the extent applicable, Your Users, customers and/or end users) have violated the Acceptable Use Policy; (iii) Bandwidth reasonably concludes that an unusual increase in Your use of the Services may be attributable to fraudulent usage and/or will materially and adversely impact the Services, and/or (iv) Bandwidth reasonably concludes that the provision of the API and/or the Services to You will violate applicable law or has become impractical due to applicable law, Bandwidth may suspend or terminate these Terms of Service and/or any or all Services immediately upon as much prior notification to You as is practicable under the circumstances, if any.
D. Upon the occurrence of a Default (as defined below), Bandwidth may, in addition to any other rights that Bandwidth may have arising as a result of such Default: (i) suspend Bandwidth’s performance of any or all Services without liability or further obligation immediately; and/or (ii) terminate these Terms of Service without liability or further obligation immediately upon written notification of termination to You. All remedies expressed in these Terms of Service are without exclusion as to any rights or remedies that the parties may have under these Terms of Service or which may be recognized under controlling law.
E. At Your request, within thirty (30) days of termination of these Terms of Service, provided a Default has not occurred, Bandwidth will make available to You a file of Your Data then in Bandwidth’s possession. You agree and acknowledge that Bandwidth has no obligation to retain Your Data and that Your Data may be irretrievably deleted after thirty (30) days following the termination of these Terms of Service.
F. Upon expiration or termination, You will immediately cease all use of the Service, including the API and/or the Services and any documentation. Notwithstanding any such expiration or termination, Your obligation to pay for Services will survive with respect to any Services previously utilized. Termination is not an exclusive remedy and all other remedies will be available whether or not the license granted herein is terminated. Notwithstanding the foregoing, if You are dissatisfied with the API and/or the Services, Your sole and exclusive remedy is to discontinue using the API and/or the Services.
9. Warranty and Disclaimer
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU ARE USING THE API AND/OR THE SERVICES AT YOUR OWN SOLE RISK. THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY, TERM OR CONDITION OF ANY KIND, AND BANDWIDTH DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. BANDWIDTH DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE API AND/OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE API OR THE SERVER THAT MAKES THE API AND/OR THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE API AND/OR THE SERVICES IS DONE AT YOUR RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR NETWORK, OR LOSS OF DATA THAT RESULTS FROM USE OF THE API AND/OR THE SERVICES.
10. Limitation of Liability
BANDWIDTH’S TOTAL LIABILITY WITH RESPECT TO YOUR USE OF THE API AND/OR THE SERVICES (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE LIMITED TO THE FEES PAID BY YOU TO BANDWIDTH FOR THE SERVICES UTILIZED BY YOU PURSUANT TO THESE TERMS OF SERVICE IN THE SIX (6) MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO THE LIABILITY. NEITHER BANDWIDTH NOR ITS LICENSORS WILL BE LIABLE IN ANY EVENT FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THE COST OF ANY SUBSTITUTE PROCUREMENT), WHETHER OR NOT FORESEEABLE AND EVEN IF BANDWIDTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
You will defend, indemnify and hold Bandwidth, its subsidiaries and affiliates and their respective directors, officers, employees, agents, successors and assigns harmless from and against any and all actual or alleged costs, damages, expenses, losses, and/or liabilities of any kind, including, without limitation, reasonable attorneys’ fees, arising from any action, claim, suit or proceeding commenced by any third party for damages to any tangible property or bodily injury to or death of any person arising out of or caused by Your negligence or willful misconduct, except for those costs, damages, expenses, losses, and/or liabilities of any kind caused by any act or omission of Bandwidth or its directors, officers, employees, or agents. Bandwidth will promptly notify You in writing of any such action, claim, suit or proceeding. You will control the response to any such action, claim, suit or proceeding and the defense thereof, including, without limitation, any agreement relating to the settlement thereof. In addition to the foregoing general indemnity, You will at all times defend, indemnify and hold Bandwidth, its subsidiaries and affiliates and their respective directors, officers, employees, agents, successors and assigns harmless from all third party claims arising out of or due to the utilization by any other person or entity to which You provide any services in connection with or utilizing any Service provided to You pursuant to these Terms of Service (including, without limitation, any of Your Users, customers and/or end users), including, without limitation, due to (i) Your failure (or the failure of any of Your Users, customers and/or end users) to comply with any applicable laws; (ii) claims for libel, slander, and/or invasion of privacy; (iii) claims for infringement of copyright and/or trademark; (iv) claims for infringement of patents arising from combining or using services or equipment furnished by Bandwidth with services and/or equipment furnished by any other person or entity; and (v) claims arising from any failure, breakdown, interruption or deterioration of service provided by You to Your Users, customers and/or end users; provided, however, the foregoing shall not apply to those costs, damages, expenses, losses, and/or liabilities of any kind caused by any act or omission of Bandwidth or its directors, officers, employees, or agents.
12. Dispute Resolution
A. You and Bandwidth wish to promptly and fully resolve any dispute arising in connection with these Terms of Service in good faith, confidentially, and informally with minimal transaction costs. Neither You nor Bandwidth may make any public statement regarding any such dispute and/or the existence of any such dispute except as otherwise expressly provided in this Section 12. If either You or Bandwidth determines that any dispute cannot be resolved informally, then such party will initiate an escalation process by giving written notice (“Escalation Notice”) to the other party. Each party then will name one (1) representative, which representative will be knowledgeable of the subject matter in dispute and with authority to discuss the dispute (hereinafter the “Officers”). The Officers will meet in person or by conference call, together with any persons assisting them as determined by such Officers respectively, not later than fifteen (15) calendar days after delivery of the Escalation Notice. All negotiations conducted by the Officers will be confidential and will be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and any other applicable rules of evidence. The Officers will conduct such additional meetings as they deem necessary to exchange relevant information, will appoint their respective staff to attempt to resolve any disputed facts, and will attempt to resolve the dispute. Should the Officers be unable to resolve the dispute within fifteen (15) days, or such additional time as the parties may otherwise agree in writing, either party may demand mediation by written notice to the other party, whereupon the parties will, in good faith, mediate the dispute no later than thirty (30) days after such demand through the services of a mutually selected mediator, the cost of whom will be borne equally by the parties, at a date and location selected by the mediator after consultation with the parties. If the dispute is not resolved after applying the escalation procedures set forth above (or if either party fails to timely appoint Officers, comply with a demand for mediation or otherwise fail to meet its obligations pursuant to this Section 12(A)), the parties agree to waive any right to trial by jury in any judicial proceeding arising under or related to the subject matter of this Agreement, and will submit all controversies, claims, disputes and matters of difference to arbitration according to the commercial rules and practices of the AAA. Arbitration hereunder will occur within sixty (60) days of the date of submission before a single neutral arbitrator having significant experience in the subject matter of this Agreement and who will be selected in accordance with applicable AAA rules. Arbitration proceedings will take place in Wake County, North Carolina. Discovery will be permitted, including the use of interrogatories, requests for admission and production of documents and depositions. If the disputed amount is less than $500,000, all applicable expedited procedures of the AAA will apply. The arbitrator’s fees and costs of the arbitration will be borne by the party against whom the award is rendered; provided, however, if the arbitrator grants partial relief to both parties, the arbitrator will equitably allocate the arbitrator’s fees and other costs. Each party will pay its attorney’s fees related to any dispute related to this Agreement. The arbitration award will be final and binding on both parties, will not be subject to any appeal and will be enforceable in any court of competent jurisdiction.
B. Notwithstanding any term or condition of this Agreement to the contrary, including, without limitation, Section 12(A) above:
(i) Upon the occurrence of a Default, Bandwidth may, in addition to delivering an Escalation Notice pursuant to Section 12(A) above, pursue any and all actions and/or remedies pursuant to Section 8 above.
(ii) Bandwidth may, but will not be obligated, to utilize the dispute resolution proceedings contemplated by Section 12(A) above in connection with any collection of amounts due. For clarity, Bandwidth may utilize civil actions and/or judicial proceedings in connection with any collection of amounts not timely paid.
(iii) ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR IN COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS ACTION OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. YOU WILL NOT BE A CLASS REPRESENTATIVE, CLASS MEMBER OR OTHERWISE PARTICIPATE IN A CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING.
13. U.S. Government Matters
You may not remove or export from the United States or allow the export or re-export of any part of the API, the Services, and/or any applicable documentation, if any, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in the Federal Acquisition Regulations (“FAR”) section 2.101, the software and documentation licensed in these Terms of Service are “commercial items” and according to the Department of Defense Federal Acquisition Regulations (“DFAR”) section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of these Terms of Service, and will be prohibited except to the extent expressly permitted by these Terms of Service.
Bandwidth may give notice applicable to Bandwidth’s general customer base by email or through any applicable Electronic Tools and notices specific to You by electronic mail to Your e-mail address on record in Bandwidth’s account information or by written communication sent by first class mail or pre-paid post to Your address on record in Bandwidth’s account information. You may give notice to Bandwidth at any time by letter delivered by first class mail or pre-paid post to Bandwidth at 900 Main Campus Drive, Suite 500, Raleigh, North Carolina 27606, Attention: General Counsel. All notices will be deemed to have been given two days after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending by confirmed facsimile, email or posting to the Service.
15. Changes in Governing Law
If any statute, regulation, decision, rule or order by a court of law or governmental authority: (a) prohibits performance pursuant to these Terms of Service, (b) makes such performance illegal, impossible or impractical, or (c) materially adversely impacts either party’s performance of its obligations under these Terms of Service, including, without limitation, the costs incurred by a party to perform its obligations under these Terms of Service, the parties will use their commercially reasonable efforts, to amend these Terms of Service so that: (i) performance pursuant to these Terms of Service is no longer prohibited, illegal, impossible, impractical or is no longer materially adversely impacted, and (ii) these Terms of Service preserve, to the maximum extent possible, the original intent of the parties. If the parties are unable to amend these Terms of Service as contemplated above, then the party whose performance or use of Service(s) is rendered prohibited, illegal, impossible, impractical or materially adversely impacted may, in its sole discretion and upon thirty (30) calendar days (or less if required by law) prior written notification to the other party, cease performance of any such obligations or Service(s) without further obligation or liability, excluding payment of any charges for Service(s) received by You prior to notification of change in law. The parties will continue to perform all such obligations and Service(s) under these Terms of Service that are not so prohibited, impossible, impractical or materially adversely affected; provided, however, if a material part of the rights and obligations under these Terms of Service are suspended in accordance with the above and the performance of the remaining obligations would not reasonably maintain the respective original intent of the parties or would not serve the essential purpose of these Terms of Service, then either party will have the right to, at its sole discretion and upon thirty (30) calendar days written notification to the other party, terminate these Terms of Service without further obligation or liability, excluding payment for charges for Service(s) received by Customer prior to termination of these Terms of Service.
These Terms of Service constitute the entire agreement between You and Bandwidth with respect to the API and/or any Services utilized in connection with the API and supersedes all prior agreements, promises, proposals, representations, and understandings and negotiations, whether written or oral, between the parties respecting the subject matter hereof. These Terms and Conditions are between Bandwidth and You, and are not for the benefit of any third party, whether directly or indirectly (including, if applicable, any User accessing the API and/or the Services by means of an account established by You). The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. These Terms and Conditions are not assignable, transferable or sublicensable by You except with Bandwidth’s prior written consent. THE AGREEMENT AND THESE TERMS AND CONDITIONS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. YOU AND BANDWIDTH AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS LOCATED IN WAKE COUNTY, NORTH CAROLINA. Any modifications to these Terms of Service must be in writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of these Terms of Service, and You do not have any authority of any kind to bind Bandwidth in any respect whatsoever. In any action or proceeding to enforce rights under these Terms of Service, the prevailing party will be entitled to recover costs and attorneys’ fees.
“911 / E911” means functionality that allows end users to contact emergency services.
“Call Detail Record” or “CDR” means the electronic record of individual telephone calls, and may include such call components as: from, to, date/time, destination, duration of call.
“CPNI” means Customer Proprietary Network Information and is defined and regulated by the FCC and includes such data as: CDRs, the type of services/network a Customer subscribes to, and any other information that appears on a Customer’s invoice and/or billing statement
“Default” means (and will occur): (i) if You fail to make any payment for Services when due; (ii) if You (or, to the extent applicable, Your Users, customers and/or end users) violates the Acceptable Use Policy; (iii) if You fail to perform or observe any term or obligation of these Terms of Service, including, without limitation, any document incorporated by reference into these Terms of Service, not otherwise specified in clauses (i) or (ii) above and applicable to the Services, which failure remains uncured thirty (30) calendar days after Customer’s receipt of written notification from Bandwidth informing You of such failure; (iv) upon the institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings, by or against You, unless such proceedings have been dismissed or discharged not later than the date thirty (30) calendar days immediately after the commencement of such proceeding; (v) upon the making of an assignment for the benefit of creditors, adjudication of insolvency, or institution of any reorganization arrangement or other readjustment of debt plan, of or by You; and/or (vi) upon the appointment of a receiver for all or substantially all of Your assets.
“Electronic Tools” means a service ordering/management system and/or any other electronic tools or computer software in connection with the Services or the use of any Services.
“FCC” means the Federal Communications Commission.
“Inbound Calling” (or “Inbound Calls”) means a call from the PSTN through Bandwidth or another IP endpoint to Customer.
“IP” means Internet Protocol.
“Outbound Calling” (or “Outbound Calls”) means outbound calling from You to Bandwidth’s network for purposes of delivering (terminating) the call on the PSTN or another IP endpoint.
“PSTN” means the Public Switched Telephone Network.
“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.