These are the Terms and Conditions (the “Terms and Conditions”) entered into between Barking Dog Communications, LLC (BDC) and Customer. BDC reserves the right to modify these Terms and Conditions from when warranted by a change in operating conditions. Any modification to these Terms and Conditions will be effective on the first day of the month following the posting of the modified Terms and Conditions at Barking Dog Communications, LLC – Terms of Service (TOS) – Barking Dog Communications, LLC. Customer should therefore check the site regularly for updated versions.
Definitions:
“DID” means a telephone number assigned by BDC to Customer (or ported to BDC by Customer) has functionality that allows inbound voice communication.
“911 Services” means functionality that allows end users to contact emergency services by dialing the digits 9-1-1 and registering location information on where the 911 call is being made from.
“ANI” means Automatic Number Identification.
“Basic 911 Service” means the ability to route an emergency call to the designated entity authorized to receive such calls serving Customer’s Registered Address. With Basic 911 Service, the emergency operator answering the phone will not have access to the caller’s telephone number or address information unless the caller provides such information verbally during the emergency call.
“Default” means (and will occur): (i) if Customer fails to make any payment for the Service not disputed in good faith pursuant to terms below.
“Enhanced 911 Services,” “E911 Services” or “E911” means the ability to route an emergency call to the designated entity authorized to receive such calls, which in many cases is a Public Safety Answering Point (“PSAP”), serving Customer’s Registered Address and to deliver the Customer’s telephone number and Registered Address information automatically to the emergency operator answering the call.
“Improper Calls” means call types that (i) would result in BDC 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 inadequate Customer capacity.
“International” means anywhere outside of the continental United States or Canada. International per minute rates are subject to change. BDC reserves the right to block all or a number of high costs, international routes.
“LNP” means local number portability.
“NADP” means the North American Dialing (or Numbering) Plan.
“North America Domestic” means the continental United States (excluding Alaska and Hawaii) and most of Canada.
“North America Local Number(s)” means a Local NPA based number that is part of the North America Number Plan.
“North America Toll Free Number(s)” means a North America telephone number that supports NADP and is assigned to Customer by BDC (or ported to BDC by Customer) for use with the Service and carries a per minute charge for all inbound calls received on the number.
“Cloud PBX System” or “BDC Cloud” means a PBX that is hosted by BDC that the customer has rights and access to use that contains the features and handles all the routing logic of your DIDs and Phone you have connected with this service.
“PSTN” means the public switched telephone network.
“Rate Center” means a geographic area (determined by the applicable ILEC) within a LCA or market that is associated with one or more specific NPA/NXX codes.
“Registered Address” means the address provided by Customer and entered into appropriate BDC-provided portals, which address represents the physical location from which the Service will be used.
“Service” means BDC’s Cloud PBX System provided pursuant to these Terms and Conditions and as further described in Section 2 below.
“Service Term” as set forth in Section 10.
“Standard Business Use” means use of the Service as contemplated by these Terms and Conditions in a manner consistent with business use, which will include, without limitation: (i) Non Dialer or Call Center Traffic; (ii) a normal mix of extensions to external calls to the PSTN of 3 users per PSTN call at any 1 time; and (iii) a Registered Address.
“Standard Support” allows the customer to open a support ticket or contact our support department by telephone to receive help in troubleshooting why something may not be working. If we determine that everything from our end is functioning normal you will need to work with your IT Team or Technical Group to resolve the issue.
Terms Of Service:
1) Services Provided. Provided that Customer is not in Default, BDC will provide Customer with the Service described in these Terms and Conditions for the Service Term. Customer is solely responsible to obtain, use, configure and operate any customer premise equipment that Customer may use in connection with the Service that is not part of the contract between Customer and BDC. The Service is provided with Standard Support, unless otherwise indicated in writing and signed by BDC.
2) Service Description. The Service is a bundled virtual PBX service providing (i) real-time voice communication services. The Service will route between a Customer’s Phone and their Cloud PBX system. For clarity, (i) Customer must provide a Registered Address to utilize the Service, and (ii) Customer only may utilize DIDs and/or Toll-Free Numbers provided by BDC (or ported to BDC) in connection with the Service.
2.1) Porting Out Phone Numbers: BDC reserves the right to charge a 1 time fee for each phone number that you port out from BDC to a different carrier. Porting out a phone number to a different carrier does not cancel that number from being billed any monthly service charges related to the phone number automatically. The Customer needs to login to our Portal and either close the Location related to the service or cancel the numbers once you have completed the porting with your new carrier.
3) Data Storage
a) BDC agrees to store no less than 60 days of call recordings for customers who have enabled call recordings on their Clearly Cloud system. If you need a longer storage period, we have different pricing options available to extend this storage period.
b) CDRs or Call Detail Records are stored for a minimum of 1 year and displayed in your Clearly Cloud Web GUI.
4) Service Limitations. In addition to any other restrictions or limitations included in these Terms and Conditions:
a) No Use with LCR: Customer may not use the Service with (or in connection with) a least cost router (or “LCR”), which BDC will determine, in its reasonable discretion, based upon analysis of Customer’s traffic patterns in the ordinary course of business.
b) No Use with Auto-Dialer (or “Robo-Dialer”): Customer may not use the Service with (or in connection with) an auto-dialer (or “Robo-dialer”), which BDC will determine, in its reasonable discretion, based upon analysis of Customer’s traffic patterns in the ordinary course of business.
c) Registered Address: The Service requires a Registered Address. Customer may not move the physical location from which the Service is used away from the Registered Address without updating the Registered Address by Customer as contemplated in the definition of “Registered Address. If Customer fails to notify BDC of any move of the physical location from which the Service is used without updating the Registered Address as contemplated in the definition of “Registered Address, BDC may, in its sole discretion, immediately suspend the Service until Customer notifies BDC of such move (or otherwise updates the Registered Address as contemplated in the definition of “Registered Address”). Customer acknowledges and agrees that (i) any such failure by Customer may cause incorrect routing of 911 Services for which Customer will be solely liable, and (ii) the continuation of certain 911 Services may be restricted or precluded based upon the physical location to which Customer wishes to move the Registered Address.
d) Network Jeopardy: In addition to any other rights that BDC has or may have pursuant to these Terms and Conditions, if BDC determines, in its discretion, that Customer’s use of the Service (or the specific method or technology utilized by Customer) materially and adversely interferes with or otherwise places in jeopardy BDC’s network, other customers, partners and/or the overall business(es) of BDC or any of BDC’s other customers or partners, BDC may suspend or terminate these Terms and Conditions, and/or the Service immediately upon as much prior notification to Customer as is
practicable under the circumstances, if any.
e) Standard Business Use: The Service is provided for Standard Business Use. BDC reserves the right to ensure that Customer’s use of the Service is consistent with Standard Business Use and otherwise complies with these Terms and Conditions. If BDC determines that Customer is not using the Service for Standard Business Use, BDC may, in addition to all other rights and remedies pursuant to these Terms and Conditions, notify Customer and allow Customer the opportunity to cure any such use within two (2) calendar days. Customer may cure by stopping any such use to comply with
Standard Business Use, or change Customer’s use of the Service in any other way that is consistent with Standard Business Use. Additionally, BDC reserves the right to in any combination (i) immediately terminate the Service, (ii) charge a minimum inappropriate use fee of $500.00 and/or charge $0.05 per minute for all calls made during such periods of prohibited use (plus applicable toll free and international charges), whichever is higher, to Customer’s payment method of record, and (iii) all applicable termination fees described in these Terms and Conditions.
f) Call Caps per User: If your plan includes Usage per user the default usage is outlined below. All included minutes are for US Lower 48, Hawaii and most of Canada (excluding metered international and toll-free calling) in any calendar month (or billing cycle, if applicable). Calls to other non included North America Domestic rate centers such as but not limited to US Virgin Islands and Yukon Canada are not included as part of the North America Domestic and are charged on a per minute usage.
i) Standard Full User – Each user that is billed monthly on your invoice under a Standard Pricing Plan has a soft-cap of 2,000 combined inbound and outbound minutes.
ii) Low Usage Full User – Each user that is billed monthly on your invoice under a Low Usage Pricing Plan has a soft-cap of 250 combined inbound and outbound minutes.
iii) Custom Price Plans – Any custom price plan may include a bundle of inbound and outbound minutes and the per user included bundled minutes will be reflected in your BDC Cloud Portal under the Location when viewing the Users.
g) If using Metered Service, the following restrictions and limitations also apply:
i) Monthly Billing: All metered services such as but not limited International Calling, Per minute charges for inbound calls to purchased Toll Free Numbers, inbound or outbound Domestic calls that exceed your included bundled minutes per user and SMS are billed monthly for the previous month. You have the ability to set max thresholds for metered services and we make all attempts to not allow calls to exceed your limits but we do not guarantee that your metered services will not exceed your monthly or weekly limits and you are responsible for all calls made on your account.
5) 911 Services. The Service includes either E911 Service (or Basic 911 Service under certain circumstances) if, and only if; the call’s originating ANI (Caller ID) is setup a valid 911 Endpoint and Location with BDC.
a) 911 Service: When a caller from Customer’s Registered Address dials the digits 9-1-1 from a Location that is setup with 911 Service, the registered 911 Location information is automatically sent to the local emergency center serving the physical location of the Registered Address. Emergency operators will have access to this information regardless of whether the caller is able to verbally provide such information to the emergency call- taker. Accordingly, with E911 Service, the emergency operators will have the caller’s callback telephone number and Registered Address. In limited circumstances, callers utilizing our 911 service may have their calls routed to the national call center. Please see the description below for an explanation of when this would occur and how this service operates. If a customer sends any number other than a Caller ID that is setup with a valid 911 Endpoint and Location with BDC when calling 911, BDC reserves the right to substitute a Customer’s Default 911 Location and Endpoint that is registered from the Location making the 911 call. In this case, the emergency operator will have this callback number and the call will be routed to the local emergency center serving this location. The Customer is responsible for testing and assuring that their proper address and call-back number is being delivered to the E911 center and can do this by dialing 933 and listening to the number transmitted and the registered address played back to the customer.
b) National Call Center Service: Depending upon their geographic location, certain Customers do not have access to either E911 Services. If Customer does not have access to either E911 Service, emergency calls placed using the digits 9-1-1 will be sent to a national emergency call center. A trained agent at the emergency call center will ask for caller’s name, telephone number, and location and then transfer the caller to the appropriate local emergency center or otherwise determine the best way to provide emergency services to the caller. The trained operators answering calls in the national call center will not have automatic access to the caller’s telephone number or Registered Address because the national call center will not be equipped to receive, capture or retain Customer’s telephone number and/or Registered Address. Accordingly, callers must be prepared to verbally provide both callback and address information. 911 calls also may be sent to national emergency call center if there is a problem validating the Registered Address provided by Customer, if Customer is located in an area that is not covered by the land line 911 network, or if Customer has E911 Service or Basic 911 Service based on their geographic location, but the call fails to complete and is routed to the national emergency call center for failover purposes.
c) E911 Service is not available from all local emergency centers; the determination of whether E911 Service or national call center service will apply generally is not controlled by BDC.
d) Free Trial Customers. The free trial service is for evaluation and not for production usage, all customers using the free trial version of BDC Services do not have the capabilities to make any 911 calls and all calls to 911 will be blocked during the free trial period. It is Customer’s responsibility to assure it has a working 911 service on its PBX with another provider if Customer is evaluating BDC’s service with a free trial account while using the system in a production capacity where 911 service is expected or required by law. if and when Customer converts a free trial account into a standard account, e911 service will be made immediately available.
e) DISCLAIMER OF LIABILITY AND INDEMNIFICATION – 911 SERVICES:
i) CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICE IS INTERNET BASED AND THAT 911 SERVICES ARE DIFFERENT THAN THAT OF TRADITIONAL WIRELINE SERVICE. FOR BASIC 911 SERVICE OR E911 SERVICE TO BE ACCURATELY ROUTED TO THE APPROPRIATE EMERGENCY RESPONDER, CUSTOMER MUST PROVIDE THE 911 CALLER ID USED WITH THE SERVICE FOR THE REGISTERED ADDRESS, IN THE ‘USERPART’ OF THE ‘FROM URI’ CONTAINED IN THE SIP ‘FROM’ HEADER.
ii) CUSTOMER ACKNOWLEDGES THAT THE SERVICE MAY NOT SUPPORT BASIC 911 SERVICE OR E911 SERVICE DIALING IN THE SAME MANNER AS TRADITIONAL WIRELINE PHONE SERVICE. CUSTOMER AGREES TO INFORM ALL USERS OF THE POTENTIAL COMPLICATIONS ARISING FROM BASIC 911 SERVICE OR E911 SERVICE. SPECIFICALLY, CUSTOMER ACKNOWLEDGES AND AGREES TO INFORM ALL EMPLOYEES, GUESTS, AND OTHER THIRD PERSONS WHO MAY USE THE SERVICE THAT BASIC 911 SERVICE AND E911 SERVICE WILL NOT FUNCTION IN THE CASE OF A SERVICE FAILURE FOR ANY OF THE FOLLOWING REASONS:
(A) POWER OR INTERNET FAILURES OR OUTAGES,
(B) SUSPENDED OR TERMINATED BROADBAND SERVICE,
(C) SUSPENSION OF SERVICE DUE TO BILLING ISSUES, AND/OR
(D) ANY OTHER SERVICE OUTAGES NOT DESCRIBED HEREIN. CUSTOMER FURTHER ACKNOWLEDGES THAT FAILURE TO PROVIDE A VALIDATED REGISTERED ADDRESS IN THE REQUISITE FORMAT MAY CAUSE ALL BASIC 911 SERVICE OR E911 SERVICE CALLS TO BE ROUTED TO THE INCORRECT LOCAL EMERGENCY SERVICE PROVIDER. FURTHERMORE, CUSTOMER RECOGNIZES THAT USE OF THE SERVICE FROM A LOCATION OTHER THAN THE LOCATION TO WHICH THE SERVICE WAS ORDERED, I.E., THE “REGISTERED ADDRESS,” MAY RESULT IN BASIC 911 SERVICE OR E911 SERVICE CALLS BEING ROUTED TO THE INCORRECT LOCAL EMERGENCY SERVICE PROVIDER.
iii) CUSTOMER ACKNOWLEDGES AND AGREES THAT NEITHER BDC, ITS UNDERLYING CARRIER, OR 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 CUSTOMER HEREBY WAIVES ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION, ARISING FROM OR RELATING TO THE PROVISION OF ALL TYPES OF EMERGENCY SERVICES TO CUSTOMER. CUSTOMER FURTHER AGREES AND ACKNOWLEDGES THAT IT SHALL INDEMNIFY AND HOLD HARMLESS BDC FROM ANY CLAIM OR ACTION FOR ANY CALLER PLACING SUCH A CALL WITHOUT REGARD TO WHETHER THE CALLER IS AN EMPLOYEE OF CUSTOMER. CUSTOMER ACKNOWLEDGES AND AGREES TO HOLD HARMLESS AND INDEMNIFY BDC FROM ANY CLAIM OR ACTION ARISING OUT OF MISROUTES OF ANY 911 CALLS, OR WHETHER LOCAL EMERGENCY RESPONSE CENTERS OR NATIONAL EMERGENCY CALLING CENTERS ANSWER A 911 CALL OR HOW THE 911 CALLS ARE HANDLED BY ANY EMERGENCY OPERATOR INCLUDING OPERATORS OF THE NATIONAL CALL CENTER. THE LIMITATIONS APPLY TO ALL CLAIMS REGARDLESS OF WHETHER THEY ARE BASED ON BREACH OF CONTRACT, BREACH OF WARRANT, PRODUCT LIABILITY, TORT AND ANY OTHER THEORIES OF LIABILITY.
6) Service Availability. BDC may from time to time interrupt or otherwise impact Service for maintenance. BDC will make commercially reasonable efforts to provide to Customer reasonable advance notification (via phone, email or other means) of such maintenance. BDC will use commercially reasonable efforts to perform such maintenance in a manner that will not unreasonably interrupt the Service. BDC may interrupt its provision of the Service for unscheduled emergency maintenance without notice to Customer.
7) Porting Numbers. BDC will require a completed and signed Letter of Authorization (“LOA”) for any existing telephone numbers Customer wishes to port from another carrier to BDC. BDC may require a recent copy of the current phone bill which contains Customer’s Billing Telephone Number (“BTN”) as well as a record of any numbers that need to be ported. BDC must receive necessary LOA(s) and/or bill copy(ies) before BDC 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 BDC. The Confirmed Port Date interval may in some cases take as long as one (1) to two (2) business weeks after Customer initiates the port request; since the port interval is a product of the accuracy of the information provided to BDC by Customer, as well as the processing speed of Customer’s current voice provider, BDC makes no guarantees regarding the promptness of a port, however all ports will be provided consistent with applicable law.
8) Service Activation Date. All services are activated within a few minutes usually of signing up for service with the exception of Number ports, which usually take 2-4 weeks.
9) Service Commencement Date. The “Service Commencement Date” will be the date when Customer orders service for a new location from the BDC Portals.
10) Service Term. Service Term. All services purchased, can be purchased under the following options, and is decided at the time of purchase. Upon cancellation of service BDC will no longer be obligated to store your CDRs, Call Recordings or any configurations related to your BDC Cloud setup.
a. Month to Month – Customer can cancel service at any time. All billing is for the complete month so no partial refund for service cancelled part way through a billing cycle will be issued. Bills are generated on the 1st of each month and will carry over billing for Metered Services (Toll-Free, FAXes, etc.) from the previous month. To cancel submit the request in writing to help@bdc-llc.com.
11) Service Support. BDC provides support for the Service as described in this written agreement. If no written agreement is signed the support is outlined at Barking Dog Communications, LLC – Terms of Service (TOS) – Barking Dog Communications, LLC and will apply to your service.
12) Charges for Service. The monthly recurring charge(s) (“MRC”) and any non-recurring charge(s) (“NRC”) applicable to use of the Service, as well as any other charge(s) applicable to use of the Service, will be clearly enumerated in your monthly invoice. All applicable federal, provincial, state or local taxes and all use, sales, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees, miscellaneous fees, and surcharges, whether charged to or against BDC, will be payable by Customer, including, without limitation, any cost recovery fee which will represent an accurate and non-inflated recovery of BDC’s, or any underlying provider’s, miscellaneous tax, surcharge, and fee payments to federal, provincial, state or local governmental authorities associated with the provision of the Service by BDC to Customer. BDC retains the right to invoice Customer for costs incurred by BDC from time to time related to BDC’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 Customer or Customer’s customers and/or end users. At its sole discretion, BDC may require a security deposit to continue providing Service should Customer’s credit profile yield insufficient credit. Additionally, at its sole discretion, BDC reserves the right to demand immediate payment by wire and block Customer’s voice traffic should BDC determine Customer’s usage exceeds their approved level of credit. Except as otherwise provided in these Terms and Conditions, BDC will not increase any MRCs and/or NRCs during the Initial Service Term; thereafter BDC may increase MRCs and/or NRCs upon at least thirty (30) days written notice. All MRCs, NRCs, rates and/or other charges are subject to change immediately in the event there are mandated surcharges or taxes imposed by federal, provincial, state or governmental agency. Notwithstanding the foregoing, in the event of governmental or regulatory action, BDC reserves the right, at any time without liability, to: (i) pass through to Customer all, or a portion of, any changes or surcharges or taxes directly or indirectly related to such governmental or regulatory action; (ii) modify the Service, rates (including any rate guarantees), promotions, these Terms and Conditions in order to conform to such action; or (iii) if such governmental or regulatory action materially and adversely impairs the provision of Service, as reasonably determined by BDC, terminate these Terms and Conditions.
13) Metered or Additional Charges.
a) International Rates: International per minute rates are subject to change. BDC reserves the right to block all or a number of high cost, international routes.
b) Long Distance Rates: Outbound interprovincial and interstate calls terminating to the Yukon, Alaska or any other non-North America Domestic location will be billed as per the International rate schedule.
c) 800/Toll Free Domestic Rates: North America Domestic inbound calls to Toll Free Numbers are billed at the quoted flat, per-minute rate or rate schedule that you agreed to at signup for service.
d) 800/Toll Free Offshore Rates: Inbound calls to Toll Free Numbers are rated at the quoted flat per minute rate or rate schedule from the North America Domestic locations: Inbound calls to a Toll-Free number from non North America Domestic locations will be charged at a higher rate as outlined below. The per-minute rates for these locations are subject to change every 15 days.
e) LNP Charges: A per Phone Number charge is waived for numbers ported in at the commencement of Service. After your service is functiona, a NRC porting fee of $10 per number will be assessed for each phone number you request us to port.
f) Payphone Surcharges: In the event Customer’s Toll-Free Number(s) receives any inbound calls originating from a Payphone, these calls will be subject to a charge per call. The charges are based on regulated FCC Payphone Compensation rules. These regulatory charges will be passed through directly to the customer.
14) Billing and Payment.
a) BDC will bill Customer for the Service as provided in these Terms and Conditions unless otherwise agreed to in writing by BDC and the Customer. Invoices will include all applicable federal, provincial, state, and local taxes. All such taxes, and all use, sales, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees, miscellaneous fees, and surcharges, whether charged to or against BDC, Inc., which will be payable by Customer. However, if Customer provides proof of its specific tax-exempt status, BDC will not charge applicable taxes due to such exemption. Customer will supply BDC a valid and properly executed tax exemption certificate(s). In such cases Customer remains responsible for, and agrees to pay, any and all remaining non-exempt charges; tax exemption status validation is solely the responsibility of Customer and BDC will not be obligated to consider any retroactive tax exemption.
b) BDC will commence billing for the Monthly Recurring Charges and usage of the Service on the Service Commencement Date. Payments are due on the invoice date and auto drafted from your Credit Card. If your Credit Card fails to allow the charge amount After (2) days of non-payment, all fees will accrue interest at a rate of one and one-half percent (1.5%) per month or any part thereof, or the highest rate allowed by applicable law (including but not limited to the equivalent annual interest rate, as provided for at Section 4, Interest Act (Canada)), and customer will pay all collection costs incurred by BDC (including, without limitation, reasonable attorney’s fees) and BDC at its sole decision, may terminate or suspend all services. If BDC terminates the Service, then all unbilled or uncollected fees will apply. BDC retains the right to bill, including any amended or corrected billing, for the Service(s) for a period of up to twelve (12) months, commencing from the date the billed Service(s) were provided to Customer. BDC will retain such billing rights for this twelve (12) month period notwithstanding any prior billing to Customer for the same period(s) and regardless of any otherwise conflicting billing conditions in these Terms and Conditions. Customer agrees that for the duration of this twelve (12) month period, BDC will not be deemed to have waived any rights with regard to billing for the provided Service(s) that are subject to this period, nor will any legal or equitable doctrines apply, including estoppel or laches.
15) Billing Disputes. If Customer disputes any invoiced charges they can submit written notification on or before the applicable due date by sending an E-Mail to help@bdc-llc.com with “Notice of Billing Dispute” in the subject line of the ticket with respect to any disputed charges. Such E-Mail will include Customer’s complete contact information, the specific dollar amount in dispute, detailed supporting reasons for the dispute, and any supporting documentation, if available. The parties will work together in good faith to investigate any disputed charges and use commercially reasonable efforts to resolve any payment dispute within thirty (30) calendar days after receipt of such a “Notice of Billing Dispute” from Customer. Any dispute resolved in favor of Customer will be credited to Customer’s next invoice(s); any disputed amounts resolved in favor of BDC will be due and payable by Customer immediately if not paid already. BDC reserves the right to deny any and all matters described in any “Notice of Billing Dispute” (or delay BDC’s determination of the validity of any matters described in any “Notice of Billing Dispute”) if Customer’s account is in arrears or otherwise not in good standing in accordance with BDC’s customary practices and policies. Only invoices with an invoice date in the last 90 days from date of filling Notice of Billing Dispute may be disputed.
16) Resumption of Service. If Customer requests that Service be restored after a suspension or termination, BDC has the sole and absolute discretion to restore such Service and may condition restoration upon satisfaction of such conditions as BDC determines is necessary for its protection, including requiring Customer to execute a new agreement, pay all past due statements in full, pass BDC’s credit approval, and/or make advance payments. New NRCs also may apply to restore Service.
17) Additional Non-Recurring Charges. In addition to any other quoted charges in Metered or Additional Charges Section please review the service charges on your invoice.
18) Limitation of Liability. IN NO EVENT WILL BDC OR CUSTOMER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF OR IN RELATION TO THE CLOUD PBX, DEDICATED INTERNET ACCESS SERVICE, CUSTOMER PREMISE EQUIPMENT, AND/OR ANY PRODUCTS OR SERVICE PROVIDED BY THIRD PARTIES UNDER THESE TERMS AND CONDITIONS. BDC’S MAXIMUM LIABILITY UNDER THESE TERMS AND CONDITIONS IS LIMITED TO SERVICE CREDITS NOT TO EXCEED THE FEES ACTUALLY PAID TO BDC BY CUSTOMER FOR THE SERVICE PROVIDED.
19) Indemnity. Customer will indemnify and hold harmless BDC, its directors, officers, employees, agents, and affiliates from and against any and all alleged or actual losses, costs, claims, liability of any kind, damages (including, without limitation, to any tangible property or bodily injury to or death of any person), or expense of whatever nature, (including reasonable attorneys’ fees) to or by any third party, relating to or arising from (a) the use of the Service provided to Customer, whether or not Customer has knowledge of or has authorized access for such use, (b) any damage to or destruction of customer premise equipment not caused by BDC or its employees or agents, and (c) any Default by Customer. Customer has the sole and exclusive responsibility for the installation, configuration, security, and integrity of all Customer systems and/or customer premise equipment used in conjunction with or related to the Service. Customer will indemnify and hold harmless BDC from and against any actual or alleged losses, costs, claims, liability of any kind, damages, or expenses or fees (including reasonable attorneys’ fees) on the part of or which may be incurred by Customer or a third-party relating to or arising from the use or operation of customer premise equipment. Customer’s indemnification in this subsection includes any alleged or actual losses or claims in connection with unauthorized access to or use of the Service by any third-party through customer premise equipment, regardless if such unauthorized access is unintentional, accidental, intentional or by fraud and regardless of whether Customer had knowledge of such unauthorized access. In all such cases of unauthorized access Customer agrees that it retain full and sole responsibility for any and all charges for the Service provided by BDC. If BDC grants Customer access, either by online access, by application programming interface (API), or access by any other means, to a service ordering/management system and other related electronic tools (collectively, the “Electronic Tools”), Customer agrees that it is fully and exclusively responsible for all information accuracy, charges, costs, transactions, and activities conducted through such Electronic Tools. Customer agrees that it is fully and exclusively responsible to safeguard, monitor, manage, and maintain access to the Electronic Tools, and to only allow authorized use of the Electronic Tools to persons that Customer designates. Customer therefore agrees that it will indemnify and hold harmless BDC from and against any actual or alleged losses, costs, claims, liability of any kind, damages, or expenses or fees (including reasonable attorneys’ fees) on the part of or which may be incurred by Customer, or a third-party, relating to or arising from the use or operation of the Electronic Tools. Customer’s indemnification in this subsection includes any alleged or actual losses or claims in connection with unauthorized access to, use, transactions, or activity conducted through the Electronic Tools, regardless if such unauthorized access is unintentional, accidental, intentional, or by fraud, and regardless of whether Customer had knowledge of such unauthorized access. In all such cases of unauthorized access Customer agrees that it retains full and sole responsibility for any and all charges for the Service provided by BDC.
20) No Warranties and Customer Assumption of Risk. BDC MAKES SERVICE COMMITMENTS UNDER THE APPLICABLE SERVICE LEVEL AGREEMENT (“SLA”); SAID SLA IS INCORPORATED HEREIN BY REFERENCE. HOWEVER, BDC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, FOR THE BDC SERVICE PROVIDED UNDER THESE TERMS AND CONDITIONS AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BDC DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SERVICE WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES. BDC EXERCISES NO CONTROL OVER, AND HEREBY DISCLAIMS ANY RESPONSIBILITY FOR, THE ACCURACY AND QUALITY OF ANY INFORMATION TRANSMITTED WITH THE USE OF THE SERVICE. CUSTOMER HEREBY EXPRESSLY ASSUMES THE RISK OF ITS OR ITS EMPLOYEES, USERS, CUSTOMERS’, ETC., USE OF ANY INFORMATION TRANSMITTED VIA THE SERVICE. CUSTOMER WILL INDEMNIFY AND HOLD HARMLESS BDC, ITS OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, EXPENSES, COSTS OR DAMAGES OF WHATEVER NATURE ARISING FROM OR RELATING TO THE USE OF ANY BDC SIP SERVICE RESULTING FROM THE FAILURE OF CUSTOMER TO COMPLY WITH THIS SECTION.
21) Miscellaneous.
a) Handwritten alterations or additions to these Terms and Conditions made by Customer will not be considered part of the Terms and Conditions. These Terms and Conditions may only be modified, or any rights under it waived, by a separate written document executed by both parties.
b) Customer may not assign these Terms and Conditions without BDC’s prior written consent. These Terms and Conditions will be binding on the parties hereto and their respective personal and legal representatives, successors, and permitted assigns. If any provision of these Terms and Conditions is held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of these Terms and Conditions will not be affected thereby.
c) Customer signing up for service certifies that (s)he is an officer or certified representative of Customer, and as such is authorized to enter into this binding Agreement. In the event any specified time frame or deadline denotes calendar days, it is agreed that when the last date of required action or response falls on a weekend or holiday, the action and/or deadline will automatically extend to the next business day. Agreement headings are provided for reference purposes only.
d) These terms and conditions, together with any attachments, including any schedules, addendums, price lists, service level agreements, and acceptable use policies, which may be posted at: Barking Dog Communications, LLC – Terms of Service (TOS) – Barking Dog Communications, LLC, and which are incorporated herein by reference, constitute the entire understanding between the Customer and BDC with respect to the service provided herein. Customer acknowledges and understands that customer is not relying on any affirmation of fact, promise or description from any person or entity, nor any other oral or written representation other than what is contained in these terms and conditions and any incorporated documents.
22) Acceptable Use Policy. All use of the Service must comply with BDC’s Acceptable Use Policy (“AUP”) posted by BDC from time to time at https://www.bdc-llc.com/aup/. The AUP is incorporated herein by reference and subject to change. BDC reserves the right to cooperate with legal authorities and/or injured third parties in the investigation of any suspected crime or civil wrong, including, without limitation, due to or arising as a result of any violation of the AUP.
23) Third Party Beneficiaries. The parties do not intend by the execution, delivery, or performance of these Terms and Conditions to confer any benefit, direct or incidental, upon any person or entity not a party to these Terms and Conditions.
24) Equipment
a) Ownership. Equipment provided by BDC on a monthly rental basis as defined in the Quote Form or defined on any monthly invoice, and at all times shall remain, BDC’ sole and exclusive property, including all copyrights and other intellectual property rights therein or thereto. Except as otherwise expressly provided, Customer agrees that neither Customer nor any third party (“Third Party”) shall obtain any express or implied rights in or to any part of the Services or Equipment. All rights not expressly granted are reserved by BDC.
b) Site Installation- BDC and Customer agree to have the customer’s IT service group or the Customer itself handle installation services direct. BDC does not install the physical equipment shipped to you and Customer will be responsible for this.
c) Repair and Replacement- Customer will be liable for the costs of repair or replacement of Equipment if damaged or lost due to theft, negligence, intentional acts, unauthorized acts or other causes within the reasonable control of Customer, its agents or employers. Customer shall utilize appropriate surge protection and uninterruptible power supply technologies to protect the equipment and its operation. BDC shall be responsible for repair or replacement should the equipment fail through no fault of the Customer.
d) Termination- Within five (5) business days following the date of termination of this Agreement, Customer will return to BDC any BDC Equipment, in the same condition as originally installed (ordinary wear and tear excepted), or Customer will pay for the restoration of the Equipment to original condition.
25) Choice of Law and Venue.
a) For Customers with a Billing Address of Service in the United States: The provisions of this Agreement shall be governed by and interpreted in accordance with the laws of the state of New Mexico, and US Federal laws, as applicable, and shall be binding upon the parties herein, and upon their respective successors and assigns. For the purposes of all legal proceedings, this Agreement shall be deemed to have been performed in the state of New Mexico and the courts of the state of New Mexico, Bernalillo County shall have the exclusive jurisdiction to entertain any action arising under this Agreement. Each party hereto hereby irrevocably attorns to the jurisdiction of the courts of the state of New Mexico, Bernalillo County.
27) Language. The parties hereby acknowledge that they have requested and are satisfied that the foregoing and any proceeding in connection therewith be drafted in the English language.