This Trial Account Agreement (“Agreement”) confirms the desire of Bandwidth Inc., with its principal place of business located at 900 Main Campus Drive, Suite 100, Raleigh, NC 27606 (“Bandwidth”) and your organization represented by you as an authorized figure (“Prospective Customer”) agree that Bandwidth shall facilitate the analysis and evaluation of Bandwidth’s products and services by Prospective Customer (the period during which Prospective Customer conducts such analysis and evaluation with Bandwidth’s facilitation, the “Evaluation Period”).
Both parties mutually agree that, assuming the satisfactory completion of the analysis and evaluation during the Evaluation Period, a Master Service Agreement (and related ancillary documents) will be necessary to the business relationship following the Evaluation Period. Neither party has any obligation to enter into any such Master Agreement (or related ancillary documents). In the meantime, certain activities are required to support the analysis and evaluation contemplated by this Agreement during the Evaluation Period.
Bandwidth and Prospective Customer acknowledge and agree that, during the Evaluation Period, the following will apply:
- All use will be consistent with customary industry standards for trial accounts, including, without limitation, (x) any applicable volume and peak throughput determined by Bandwidth’s sole discretion, and (y) any other limits expressly stated in Appendix A attached hereto. In addition to the foregoing, all use must comply with Bandwidth’s Acceptable Use Policy (“AUP”) posted by Bandwidth from time to time at servicestemp.wpengine.com/legal. The AUP is incorporated herein by reference and subject to change.
- Prospective Customer has the sole and exclusive responsibility for the installation, configuration, security (including, without limitation, firewall security policies, even if Prospective Customer uses a third party to configure and implement such measures), and integrity of all Prospective Customer facilities, systems, equipment, proxy servers, software, networks, network configurations and the like used in conjunction with or related to the analysis and evaluation of Bandwidth’s products and/or services, including, without limitation, Prospective Customer’s connectivity to Prospective Customer’s end users.
- If Bandwidth grants Prospective Customer access, either by online access, by API or access by any other means, to a service ordering/management system and/or any other electronic tools or computer software in connection with the analysis and evaluation of Bandwidth’s products and/or services (collectively, the “Electronic Tools”), the following apply:
- Subject to Prospective Customer’s compliance with this Agreement, Bandwidth grants Prospective Customer a non-exclusive, non-transferable license to use such Electronic Tools solely in connection with Prospective Customer’s internal use during the Evaluation Period. The Electronic Tools may be incorporated into and may incorporate itself, software and other technology owned or controlled by third parties. Any such third party software or technology incorporated in such Electronic Tools falls under the scope of this Agreement. Any and all other third party software will be subject to Prospective Customer’s acceptance of a license agreement with such third party. Prospective Customer will use the Electronic Tools solely for lawful purposes in connection with Prospective Customer’s internal use during the Evaluation Period. Prospective Customer will not, directly or indirectly: (A) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Electronic Tools; (B) modify, translate or create derivative works based on the Electronic Tools; (C) rent, lease, distribute, sell, resell, assign, display, host, outsource, disclose or otherwise commercially exploit or otherwise transfer rights to the Electronic Tools or make the Electronic Tools available to any third party; (D) use the Electronic Tools for timesharing or service bureau purposes or otherwise for the benefit of a third party; (E) remove any proprietary notices or labels on any Electronic Tools; or (F) copy, reproduce, post or transmit any Electronic Tools in any form or by any means, including, without limitation, electronic, mechanical, photocopying, recording or other means.
- Each Electronic Tool is the intellectual property of Bandwidth. Prospective Customer will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on or in connection with any Electronic Tool. Any third party intellectual property included in any Electronic Tool is the property of the respective owner of such intellectual property and may be protected by applicable law. Nothing in this Agreement gives Prospective Customer any right or license to any trademarks and/or trade names (whether registered or unregistered), signs, logos, icons, slogans, banners, screenshots, trade dress, links or other brand features of Bandwidth, without the prior written consent of Bandwidth, which consent may be withheld in Bandwidth’s sole discretion for any reason. If Prospective Customer from time to time provides suggestions, comments and/or other feedback to Bandwidth, Bandwidth may, in connection with any of its products or services or the Electronic Tools, freely use, copy, disclose, license, distribute and/or exploit any such suggestions, comments and/or other feedback in any manner and without any obligation or restriction based on intellectual property rights or otherwise. Bandwidth will retain sole ownership of any such suggestions, comments and/or other feedback and Prospective Customer will not provide any such suggestions, comments and/or other feedback subject to any terms that would impose any obligation on Bandwidth or any of its customers or partners. Prospective Customer agrees to (and to cause its employees, agents and contractors to) sign, execute and acknowledge documents and perform such acts as may be reasonably necessary to perfect the foregoing assignment and to obtain, enforce and defend Bandwidth’s intellectual property rights in connection with any Electronic Tool.
- Prospective Customer is fully and exclusively responsible for all information accuracy, charges, costs, transactions, and activities conducted through or with such Electronic Tools. Prospective Customer 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 Prospective Customer designates.
- EXCEPT DUE TO (I) DAMAGES CAUSED BY A PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, OR (I) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, RELIANCE OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST REVENUES, LOST SAVINGS OR HARM TO BUSINESS AND WHETHER LIABILITY IS ASSERTED IN, AMONG OTHER THINGS, CONTRACT OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT PRODUCT LIABILITY) AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. EACH PARTY HEREBY RELEASES THE OTHER PARTY, ITS SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AND AGENTS FROM ANY SUCH CLAIM TO THE EXTENT EXCLUDED BY THE FOREGOING EXCLUSION OF NON-DIRECT DAMAGES. THE PARTIES WAIVE ANY CLAIM THAT THE EXCLUSIONS OR LIMITATIONS OF THIS SECTION DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE.
BANDWIDTH MAKES NO WARRANTIES, EXPRESS OR IMPLIED, FOR THE SERVICE(S) (INCLUDING PROSPECTIVE CUSTOMER EQUIPMENT) PROVIDED PURSUANT TO THIS AGREEMENT AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BANDWIDTH DOES NOT WARRANT THAT THE SERVICE(S) WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICE(S) WILL MEET PROSPECTIVE CUSTOMER’S REQUIREMENTS OR THAT THE SERVICE(S) WILL PREVENT UNAUTHORIZED ACCESS
BY THIRD PARTIES. BANDWIDTH EXERCISES NO CONTROL OVER, AND HEREBY DISCLAIMS ANY RESPONSIBILITY FOR, THE ACCURACY AND QUALITY OF ANY INFORMATION TRANSMITTED WITH THE USE OF THE SERVICE(S). PROSPECTIVE CUSTOMER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR PROSPECTIVE CUSTOMER’S OR PROSPECTIVE CUSTOMER’S END USER’S USE OF THE SERVICES. BANDWIDTH HAS NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY OR RESPONSIBILITY WHATSOEVER FOR THE ACTIONS OF THIRD-PARTY TELECOMMUNICATIONS SERVICE PROVIDERS. PROSPECTIVE CUSTOMER AND PROSPECTIVE CUSTOMER’S END USERS ACCESS THE SERVICE(S) AT PROSPECTIVE CUSTOMER’S OWN RISK. PROSPECTIVE CUSTOMER HEREBY EXPRESSLY ASSUMES THE RISK OF ITS OR ITS END USER’S USE OF ANY INFORMATION TRANSMITTED VIA THE SERVICE(S).
EXCEPT AS OTHERWISE SET FORTH OR PROVIDED UNDER THIS AGREEMENT, THE SERVICE(S) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
- PROSPECTIVE CUSTOMER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT BANDWIDTH’S VOICE SERVICE IS INTERNET-BASED AND THEREFORE 911/E911 SERVICES ARE DIFFERENT FROM TRADITIONAL WIRELINE BASED SERVICES AND ARE OR MAY BE ONLY PROVIDED WITH CERTAIN SERVICES IF SPECIFICALLY DEFINED IN ADDENDUM(S), EXHIBIT(S), SCHEDULES, SOFS, TERMS AND CONDITIONS, SERVICE AGREEMENTS, AND ATTACHMENTS TO THIS AGREEMENT, AND INCLUDING OTHER APPLICABLE ADDENDA, AND APPLICABLE ONLINE TERMS & CONDITIONS, ALL OF WHICH ARE FULLY INCORPORATED HEREIN BY REFERENCE. PROSPECTIVE CUSTOMER ACKNOWLEDGES AND AGREES 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 PROSPECTIVE 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 PROSPECTIVE CUSTOMER. PROSPECTIVE CUSTOMER FURTHER AGREES AND ACKNOWLEDGES THAT IT IS INDEMNIFYING AND HOLDING HARMLESS BANDWIDTH FROM ANY CLAIM OR ACTION FOR ANY CALLER PLACING SUCH A CALL WITHOUT REGARD TO WHETHER THE CALLER IS AN EMPLOYEE OR PROSPECTIVE CUSTOMER OF PROSPECTIVE CUSTOMER. PROSPECTIVE CUSTOMER ACKNOWLEDGES AND AGREES 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 PROSPECTIVE CUSTOMER HOLDS BANDWIDTH AND ITS SUBSIDIARIES AND AFFILIATES, AS WELL AS THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, 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.
- The Evaluation Period will terminate no later than thirty (30) days from the date Prospective Customer clicks to agree to the Agreement, unless extended with the prior written consent of both Bandwidth and Prospective Customer; provided, however, if Bandwidth reasonably determines at any time during the Evaluation Period that Prospective Customer is no longer actively analyzing and/or evaluating Bandwidth’s products and/or services as contemplated by this Agreement, Bandwidth may immediately terminate this Agreement and the Evaluation Period by written notice to Prospective Customer.
- This Agreement will be governed by, construed under and enforced in accordance with the laws of the State of North Carolina without reference to its choice of law principles or the United Nations Convention on the International Sale of Goods. This Agreement, together with any attachments, including, without limitation, any Exhibits, incorporated herein by reference, constitutes the entire understanding between the parties with respect to matters provided herein and supersedes any prior agreements or understandings. This Agreement will be binding on the parties hereto and their respective personal and legal representatives, successors and permitted assigns. Agreement headings are provided for reference purposes only. This Agreement may be executed in counterparts, each and all of which constitute the fully executed agreement, and the parties agree that a digitized (electronic) or facsimile copy of the executed agreement will be the same as an original copy. No waiver of either party will be effective unless in writing and signed or digitally accepted by an authorized representative of such party. No amendment to this Agreement will be effective or binding unless it is made in writing or digitally accepted and executed by authorized representatives of both parties.