Terms & Conditions
DATE: July 6th, 2015
Bayou Voip LLC – TERMS & CONDITIONS.
1. TERMS AND CONDITIONS. These terms and conditions (“Terms and Conditions”) are an integral part of the agreement (“Agreement”) between Bayou Voip, LLC. (“Bayou Voip”) and a Customer (“Customer”) of the Bayou Voip services. Any Bayou Voip services or products (collectively, the “Services”) provided by Bayou Voip to Customer shall be governed by the terms and conditions herein. By purchasing the Services, CUSTOMER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. They affect the legal rights between Customer and Bayou Voip by, among other things, requiring (1) MANDATORY ARBITRATION OF DISPUTES; (2) charging an EARLY DISCONNECTION FEE; and (3) LIMITING Bayou Voip’s LIABILITY UNDER THE AGREEMENT.
2. MANDATORY ARBITRATION.
All previous provisions in the terms and conditions including previous versions of this agreement requiring arbitration are hereby withdrawn
2.1 The venue for disputes arising from these terms and conditions shall herby be in the appropriate court of Harris County Texas.
3. DEFINITIONS. The following terms shall have the meanings set forth below.
3.1 “Agent” means a Customer employee or contractor who may use the Services, the total number of Agents being the maximum number of personnel who may use the Services at any one time.
3.2 “Customer Data” means any data, information or other materials of any nature whatsoever provided to Bayou Voip by Customer in the course of implementing or using the Services.
3.3 “Documentation” means user manuals and other documentation relating to the Services, which are made available to Customer by Bayou Voip, in the form of recorded documentation on optical or magnetic media, accessible via the Internet or in the form of printed media.
3.4 “Implementation Services” means the services selected by Customer, as indicated on the Service Order, to be provided by Bayou Voip in connection with the set up and implementation of the Services. As part of the Implementation Services, Customer will receive limited training in the set up and activation of the Services during the hours from 9:00am to 5:00pm ET Monday through Friday.
3.5 “Initial Payment” means the initial payment set forth in the Service Order consisting of the fees for Implementation Services and the Service Fees for the first or last month.
3.6 “Login” means each separate, named individual login account within a Customer account.
3.7 “Professional Services” means work Bayou Voip will perform for Customer as specified in individual statement(s) of work (“Statement(s) of Work”) to be executed by the parties from time to time on the terms and conditions specified in the Agreement.
3.8 “Service Fee” or”Service Fees” means the monthly or annual fees set forth in the Service Order to be paid by Customer to Bayou Voip as consideration for Bayou Voip provision to Customer of the Services.
3.9 “Service Order” means the document executed by Customer and Bayou Voip, containing (i) a price and quantity of Services, and Implementation Services to be provided to Customer by Bayou Voip under the Agreement, along with associated telecommunications fees; (ii) the Services to be provided; and (iii) such other options provided on the Service Order as Customer may elect to apply to the Services.
3.10 “Service Plan” means the monthly or annual subscription plan a Customer agrees to in the Service Order.
3.11 “Service Order Addendum” means a Service Order agreed to by Customer subsequent to the initial Service Order.
3.12 “Services” means the products or services that are being provided to Customer as described in the Service Order, including any Additional Services set forth in a Service Order Addendum accepted by Bayou Voip.
3.13 “Software” means any proprietary software (including any documentation relating to such software) owned by, licensed by, or which Bayou Voip has a right to sub-license under this Agreement, which software is either provided to Customer under this Agreement or is used in or used to provide the Services.
4. Bayou Voip PRODUCTS AND SERVICES. During the Initial Term or Renewal Term of this Agreement, Bayou Voip will provide the Services, set forth in the Service Order, including telephone and other equipment (collectively, “Equipment”) subject to the terms and conditions herein. Bayou Voip hereby grants Customer access to the Services for use by the number of Agents and Logins set forth in the Service Order, for Customer’s own internal business purposes, which shall be deemed to include activities Customer may perform on behalf of its own customers. Bayou Voip grants Customer the right to use the Documentation in connection with its use of the Services.
4.1. CONDITIONS. Customer acknowledges and agrees that Bayou Voip’s obligations to provide the Services are expressly conditioned upon (i) Customer’s payment of the fees for Professional Services and all Service Fees as and when due, and (ii) Customer’s satisfaction of the technical requirements set forth in the Documentation for the Services made available to Customer by Bayou Voip, as the same may be updated by Bayou Voip from time to time.
4.2. ADDITIONAL SERVICES. At Customer’s option, the number of Services may be increased at any time during the Initial Term or Renewal Term (any such increase, “Additional Services”) by agreeing to a Service Order Addendum, signed by Customer and setting forth the specific Additional Services desired. Each Service Order Addendum shall be subject to Bayou Voip’s acceptance, which shall be deemed given if Bayou Voip thereafter provides the Additional Services. Upon acceptance by Bayou Voip, such Service Order Addendum shall be deemed an amendment to the Agreement, subject to all of the terms and conditions herein, and the Service Fees shall be increased to reflect the Additional Services, subject to the same pricing and payment terms as are set forth in the Service Order. Additional Services shall be provided for a term that is coterminous with the Initial Term or Renewal Term of the Agreement.
4.3. IMPLEMENTATION SERVICES. Bayou Voip will use commercially reasonable efforts to perform the Implementation Services covered in the Initial Payment.
4.4. ADDITIONAL PROFESSIONAL SERVICES. If Customer requests Professional Services, such as support services not provided under this Agreement, training, or other consulting services, Bayou Voip may (but has no obligation to) provide such Professional Services or recommend appropriate outside consultants. If Bayou Voip agrees to provide such additional Professional Services at Customer‘ s request, fees for such Professional Services may be provided pursuant to a fixed fee or Bayou Voip ‘s standard time and material rates. Such additional Professional Services will be provided pursuant to an addendum and the other terms and conditions of this Agreement, and may be described in an agreed-upon statement of work.
5.1. INITIAL TERM. The initial term of this Agreement (“Initial Term”) begins on the date that Customer enters into the Agreement and continues in force and effect for the duration of the service period as defined by the Service Order or Agreement.
5.2. RENEWAL. Except as set forth in Section 5.3, at the end of the Initial Term, the Agreement is automatically renewed for an additional period equal to the initial term (a “Renewal Term”), and shall be renewed at the end of each Renewal Term for an additional period of the same, unless Customer provides Bayou Voip, at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term, notification of intention to cancel the service.
5.3. MONTH-TO-MONTH RENEWAL. Instead of renewal under Section 5.2 or cancellation, a Customer shall have the option, upon expiration of the Initial Term or any Renewal Term, to renew the Agreement on a month-to-month basis at the then-current rates offered for the Services. Customer will be converted to a month-to-month basis if Customer provides to Bayou Voip, at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term, notification of intention to convert to month-to-month service.
6.1. TERMINATION FOR CONVENIENCE. Either party may terminate the Agreement upon thirty (30) days notice of termination. In accordance with section 10.7, disconnection fees may apply. Termination MUST be done by requesting and filling in a cancellation form from Bayou Voip. If Customer transfers or ports their phone number to a service provider other than Bayou Voip, Customer must contact Bayou Voip to cancel the Services provided to Customer by Bayou Voip. Porting out from Bayou Voip. does not constitute cancellation of service as we do not always get any notification of port out requests from our carriers. You will continue to be billed by Bayou Voip. for all services until the cancellation notice has been received unless 6.4 applies then fees will be charged for the cancellation whilst under contract.
6.2. IMMEDIATE TERMINATION. Bayou Voip shall be entitled, at its sole discretion, to suspend, terminate or change the Services without advanced notice for any reason, including without limitation, misuse of the Services in any way, Customer’s breach of the Agreement, Customer’s failure to pay any sum due hereunder, suspected fraud or other activity by Customer that adversely affects the Services, Bayou Voip, Bayou Voip’s network or other Customer’s use of the Services. Bayou Voip shall be entitled to determine, at its sole discretion, what constitutes misuse of the Services and Customer agrees that Bayou Voip’s determination is final and binding on Customer. Bayou Voip may require, and if required, Customer shall pay, an activation fee as a condition to changing or resuming a terminated or suspended account.
6.3 EFFECT OF TERMINATION ON FEES. Upon termination of this Agreement for any reason, Customer shall be responsible for the full monthly Service Fee for the month in which termination occurs. Expiration or termination of the Agreement does not alleviate Customer of responsibility for paying all unpaid, accrued charges due hereunder.
6.4 CANCELLATION WHILE UNDER CONTRACT. Customers that are under a term contract will be responsible for all fees and charges left under the term of the contract. To determine the amount that the customer owes Bayou Voip will subtract the number of months left in the contract from the term and average the customer’s bill over the part of the contract that has already been fulfilled. This average will then be multiplied times the number of remaining months in the contract. This amount will be due within 30 days of the termination of the contract. Customer understands and agrees to pay the contract termination fee within 30 days of their account cancellation.
6.5 ILLEGITIMATE CHARGEBACKS. There is a $25.00 administrative fee for any illegitimate charge backs placed against Bayou Voip. Any illegitimate charge backs or threatened illegitimate charge backs are grounds for immediate account cancellation.
7. 911 & SERVICE LIMITATIONS. The Federal Communications Commission (“FCC”) and Canadian Radio-television and Telecommunications Commission (“CRTC”) require that Bayou Voip provide E911 Service to all Customers who use Bayou Voip Services within the United States and Canada. Sections 7.1-7.7 apply to all Customers who use Bayou Voip Services within the United States. Section 7.8 applies to all Customers.
7.1 911 ACKNOWLEDGEMENT AND WARNING LABELS. CUSTOMER ACKNOWLEDGES THAT Bayou Voip’S EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS IN THE SAME WAY THAT TRADITIONAL WIRELINE 911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION 7 AND CUSTOMER AGREES TO NOTIFY ANY POTENTIAL USER OR AGENT OF THE SERVICES, WHO MAY PLACE CALLS USING CUSTOMER’S SERVICES, OF THE 911 LIMITATIONS DESCRIBED HEREIN. Bayou Voip MAY PROVIDE CUSTOMER WITH WARNING LABELS REGARDING THE LIMITATIONS OR UNAVAILABILITY OF 911 EMERGENCY DIALING. CUSTOMER AGREES TO PLACE A LABEL ON AND/OR NEAR EACH TELEPHONE OR OTHER CUSTOMER PREMISE EQUIPMENT ON WHICH THE SERVICES MAY BE UTILIZED. IF ADDITIONAL LABELS ARE REQUIRED, CUSTOMER MAY REQUEST THEM FROM Bayou Voip. Bayou Voip WILL PROVIDE CUSTOMER WITH ADVISORY NOTICES REGARDING 911 EMERGENCY DIALING AND REQUEST ACKNOWLEDGMENTS FROM CUSTOMER. CUSTOMER AGREES TO RESPOND AND AFFIRMATIVELY ACKNOWLEDGE THAT Bayou Voip HAS ADVISED CUSTOMER OF THE CIRCUMSTANCES UNDER WHICH Bayou Voip E911 SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON TO TRADITIONAL 911 EMERGENCY DIALING. Bayou Voip ADVISES CUSTOMER TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
7.2. ELECTRICAL POWER. CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
7.3. INTERNET ACCESS. CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IF THERE IS AN INTERRUPTION OF CUSTOMER’S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE.
7.4. NON-VOICE SYSTEMS. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMS INCLUDING HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, AND ENTERTAINMENT OR SATELLITE TELEVISION SYSTEMS. Bayou Voip WILL NOT BE LIABILE FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
7.5. E911 SERVICE. Bayou Voip E911 SERVICE IS A MANDATORY COMPONENT OF ALL OUTBOUND VOICE SERVICE PLANS. E911 SERVICE IS NOT OFFERED ON VIRTUAL NUMBERS, TOLL-FREE NUMBERS OR SIMILAR SERVICE ACCESSORIES OR ADD- ON SERVICE PLANS. E911 SERVICE IS ONLY AVAILABLE IN SELECTED AREAS. IF CUSTOMER SUBSCRIBES TO Bayou Voip E911 SERVICE, CUSTOMER WILL BE REQUIRED TO REGISTER THE PHYSICAL LOCATION OF CUSTOMER’S EQUIPMENT (PHONE, SOFTPHONE, DIGITIAL TELEPHONE ADAPTER (“DTA”) OR VIDEOPHONE) WITH Bayou Voip, EITHER ON THE Bayou Voip.COM WEBSITE OR BY CALLING CUSTOMER SERVICE, AND WILL UPDATE THE LOCATION WHENEVER THE PHYSICAL LOCATION OF SERVICE CHANGES. IF CUSTOMER SUBSCRIBES TO Bayou Voip MOBILE APPLICATIONS, CUSTOMER ACKNOWLEDGES THE PHYSICAL LOCATION REGISTERED FOR CUSTOMER’S EQUIPMENT (PHONE, SOFTPHONE, DTA OR VIDEOPHONE) WILL BE THE PHYSICAL LOCATION REGISTERED FOR THE MOBILE APPLICATION ASSOCIATED TO THE EQUIPMENT. CUSTOMER ACKNOWLEDGES THAT Bayou Voip’s ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER IS THE PHYSICAL LOCATION CURRENTLY REGISTERED FOR THE ACCOUNT. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY Bayou Voip WILL BE BASED UPON THE PHYSICAL LOCATION PROVIDED TO Bayou Voip BY CUSTOMER. IN THE EVENT THAT THE PHYSICAL LOCATION HAS NOT BEEN UPDATED OR IS NOT COMPLETE, Bayou Voip MAY ATTEMPT TO ROUTE A 911 CALL BASED UPON THE BILL-TO OR SHIP-TO ADDRESSES ASSOCIATED WITH THE CUSTOMER’S ACCOUNT OR INITIAL ORDER.
7.6. E911 SERVICE CHARGE. CUSTOMERS ARE REQUIRED TO SUBSCRIBE TO Bayou Voip E911 SERVICE WILL BE SUBJECT TO A MONTHLY E911 SERVICE CHARGE. THE MONTHLY E911 SERVICE FEE SHALL BE IN ADDITION TO THE APPLICABLE SERVICE FEES FOR THE ASSOCIATED LINE. THE MONTHLY CHARGE FOR Bayou Voip E911 SERVICE IS ASSESSED ON A “PER-LINE” (THAT IS, PER PHONE NUMBER BASIS) AND WILL BE SET AT A LEVEL THAT REIMBURSES Bayou Voip FOR THE DIRECT COSTS IT INCURS IN PROVIDING Bayou Voip E911 SERVICE, INCLUDING EXPENSES Bayou Voip INCURS, EITHER DIRECTLY OR INDIRECTLY, IN THE FORM OF STATE, COUNTY OR MUNICIPAL E911 SURCHARGES, E911 AUTOMATIC LOCATION INFORMATION (ALI) DATABASE STORAGE, LINE INFORMATION DATABASE AND CALLER ID (LIDB/CNAM) EXPENSES, AND ANY OTHER TAXES OR SURCHARGES DIRECTLY OR INDIRECTLY ASSOCIATED WITH THE PROVISION OF SERVICES TO CUSTOMERS SUBSCRIBING TO THIS SERVICE. Bayou Voip RESERVES THE RIGHT TO ADJUST THE LEVEL OF CHARGES ASSOCIATED WITH THE PROVISION OF E911 SERVICES TO REFLECT INCREASES OR DECREASES IN THE COSTS IT INCURS. (SEE SECTION 20 REGARDING CHANGES TO THE AGREEMENT, SERVICES OR SERVICE PLAN). CUSTOMERS THAT HAVE NOT UPDATED OR ADDED AN ADDRESS FOR E911 AND USE THE 911 SERVICE WILL BE CHARGED $100 PER OCCURRENCE.
7.7. E911 CHARACTERISTICS. CUSTOMER ALSO ACKNOWLEDGES THAT Bayou Voip E911 SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE. THESE CHARACTERISTICS MAY MAKE Bayou Voip E911 SERVICES UNSUITABLE FOR SOME CUSTOMERS. BECAUSE CUSTOMER CIRCUMSTANCES VARY WIDELY, CUSTOMER SHOULD CAREFULLY EVALUATE CUSTOMER’S OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO RELY SOLELY UPON Bayou Voip E911 SERVICE. CUSTOMER ACKNOWLEDGES THAT IT IS CUSTOMER’S RESPONSIBILITY TO DETERMINE THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET CUSTOMER’S EMERGENCY CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCY CALLS). THE FOLLOWING CHARACTERISTICS DISTINGUISH Bayou Voip E911 SERVICE FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE:
** Bayou Voip E911 SERVICE WILL NOT FUNCTION IF CUSTOMER’S DTA, PHONE OR VIDEOPHONE FAILS OR IS NOT CONFIGURED CORRECTLY OR IF CUSTOMER’S Bayou Voip SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGE, BROADBAND SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF BILLING OR OTHER ISSUES. IF THERE IS A POWER OUTAGE, CUSTOMER MAY BE REQUIRED TO RESET OR RECONFIGURE THE EQUIPMENT BEFORE BEING ABLE TO USE THE Bayou Voip SERVICE, INCLUDING FOR E911 PURPOSES.
** AFTER INITIAL ACTIVATION OF THE E911 SERVICE, AND FOLLOWING ANY CHANGE OF AND UPDATE TO CUSTOMER’S PHYSICAL LOCATION, THERE MAY BE SOME DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR. THIS INFORMATION IS TYPICALLY POPULATED INTO Bayou Voip’s NOMADIC E911 DATABASES PRIOR TO SERVICE ACTIVATION, BUT NO GUARANTEE CAN BE MADE THAT THE AUTOMATIC NUMBER AND LOCATION INFORMATION WILL BE ACTIVATED WITHIN THIS SCHEDULE.
** THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING Bayou Voip E911 EMERGENCY SERVICE CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING THE Bayou Voip E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON THE Bayou Voip NETWORK, THERE IS A POSSIBILITY THAT A Bayou Voip 911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIA TRADITIONAL, LEGACY, CIRCUIT- SWITCHED TELEPHONE NETWORKS.
** IF CUSTOMER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE THE Bayou Voip EQUIPMENT WILL BE LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE, Bayou Voip E911 COMMUNICATIONS MAY NOT BE DIRECTED TO THE CORRECT LOCAL EMERGENCY OPERATOR NOT UPDATING OR ADDING AN INITIAL E911 ADDRESS WILL CAUSE A NON E911 ACTIVATION FEE OF $100 PER OCCURRENCE.
7.8. E911 LIMITATION OF LIABILITY AND INDEMNITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT Bayou Voip WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING Bayou Voip OR TO ACCESS AN EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT. CUSTOMER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS Bayou Voip, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, CUSTOMER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO 911 DIALING.
8. EQUIPMENT. To provide the Services, Bayou Voip may provide Equipment to Customer. All Equipment shipments are F.O.B. Bayou Voip’s facility. Bayou Voip’s liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to Customer upon delivery to carrier. Customer will be provided a twelve (12) month manufacturer’s warranty from the date of purchase of Equipment or Services. Customer shall be required to obtain authorization from Bayou Voip to return any Equipment. Bayou Voip will provide replacement Equipment only if the Equipment is deemed to be defective and covered under the warranty. Bayou Voip will not cover replacement for lost, stolen or modified equipment. Equipment returned by Customer that is not covered under warranty may be refused by Bayou Voip, and Customer will be responsible to pay return shipping charges.
9. CUSTOMER DATA. Customer hereby grants to Bayou Voip a non-exclusive, non-transferable (except In connection with an assignment of this Agreement) license to copy, store, record, transmit, display, view, print, and use Customer Data, solely to the extent necessary to provide the Services to Customer. Except as expressly provided in this Section, Customer grants to Bayou Voip no right, title, interest, or license in the Customer Data, and Customer hereby reserves for itself and its licensors all rights in and to all Customer Data.
10. BILLING, CHARGES AND PAYMENT.
10.1. PAYMENT OF SERVICE FEES. Customer will pay the Service Fee for Services ordered by Customer, and all other amounts due under the Agreement, pursuant to the terms of this Section 10.
10.2. CREDIT TERMS. All Services provided to Customer and covered by the Agreement shall at all times be subject to credit approval or review by Bayou Voip. Customer will provide such credit information or assurance as is requested by Bayou Voip at any time. Bayou Voip, in its sole discretion and judgment, may discontinue credit at any time without notice or require a deposit.
10.3. BILLING. Bayou Voip will provide Customer with a monthly on-line/Email billing statement for the Services provided each calendar month and bill all charges invoiced to Customer’s account. Such charges shall include activation fees, monthly service fees, shipping charges, disconnection fees, equipment charges, toll charges, taxes and any other applicable charges. Monthly Service Fees are paid in arrears of each month’s service; toll charges and any other applicable charges are billed subsequent to the end of each month’s service. Billing for monthly Service Fees commences upon ordering of the Services and is deemed the “Billing Date” as the result of the date monthly service fees are initiated.
10.4. LATE/NON-PAYMENT. If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment, Bayou Voip may suspend or terminate the Services and all accrued charges shall be immediately due, plus a late fee of the greater of twenty five dollars ($25.00) or 1.5% per month. A fee will also be charged to activate a suspended account. No suspension or termination of the Services or of this Agreement shall relieve Customer from paying any amounts due hereunder. Returned payments are subject to a $40.00 returned payment charge.
10.5. TAXES. Prices for the Services do not include any customs duties, sales, use, value added, excise, federal, state, local, public utility, universal service or other similar taxes. All such taxes shall be paid by Customer and will be added to any amounts otherwise charged to Customer unless Customer provides Bayou Voip with an appropriate exemption certificate. If any amounts paid for the Services are refunded by Bayou Voip, applicable taxes may not be refundable.
10.6. REGULATORY RECOVERY FEE. A regulatory recovery fee may be charged monthly to offset costs incurred by Bayou Voip in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The regulatory recovery fee may apply to every phone number assigned, including toll free and virtual numbers.
10.7. DISCONNECTION AND OVERAGE FEES. If a Customer terminates a Service Plan associated to a physical telephone or DTA within the initial contract time of the initial purchase of the Services, Bayou Voip shall charge a service disconnection fee of fifty-nine dollars and ninety- nine cents ($59.99) for each physical telephone or DTA. If a Customer terminates a Business Service Plan within the initial contract time of the initial purchase of the Services, Bayou Voip shall charge a disconnection fee of two hundred dollars ($200.00) for each extension. Disconnection fees shall be invoiced to Customer when Customer notifies Bayou Voip of the cancellation of the Services. If a Customer terminates the Agreement, or some of the Services provided under the Agreement, before the end of the Initial Term or any Renewal Term (the “Terminated Term”), Bayou Voip will charge the Customer, and the Customer will pay, an early termination charge equal to 100% of the Monthly Service Fee for the terminated Service(s) multiplied by the number of months remaining in the Terminated Term on the date of termination. The early termination charge is in addition to the full Monthly Service Fee payable under Section 6.3 for the month of termination. If the Terminated Term is the Initial Term, Bayou Voip will also charge the Customer, and the Customer will pay, any unpaid non-recurring charges waived at the beginning of the Initial Term. All fees, including Service Fees, payable under the applicable Service Plan shall be non-refundable and non-creditable. Customers on a month-to- month plan are on month-to-month agreements and are not subject to the disconnection fee.
10.8. RATE CHANGES. Bayou Voip may change the prices for the Services and toll charges from time to time. Bayou Voip may change prices, Service Plans, taxes or fees without any advance notice. For Customers on one, two, three or five year Service Plans, rates will not be increased during the Initial Term, with the exception of tax or fee changes and international toll calling rates. The Service Fees effective upon any renewal of the Agreement shall be Bayou Voip’s then-current Service Fees for the applicable Services.
10.9. AVAILABILITY. Customer acknowledges and agrees that the Services will not be available 100% of the time. Credit allowances for interruption of the Services shall not be provided. Bayou Voip is not responsible for third party internet connections or outages customer acknowledges that using a regular internet connection that it is a best effort service and you may need to contact your ISP to resolve any issues, Bayou Voip may assist in diagnostics but it is the customer responsibility to contact their ISP to have these issues resolved.
10.10. DISCOUNTS. From time to time in its sole discretion, Bayou Voip may offer promotions or discounts of activation or other fees. Any promotion or discount codes must be provided to Bayou Voip upon purchase of the Services. Customer shall not be entitled to a subsequent credit for such promotions or discounts, if not requested at the time of account creation or change of service. Promotions and/or discounts may not be used cumulatively or be used for services retroactively.
10.11. BILLING DISPUTES. Customer must dispute any charges for the Services in writing to Bayou Voip within thirty (30) days of the date of the charge by Bayou Voip. If Customer fails to provide a written statement disputing the charges within such time, Customer waives any objection and further recourse with regard to such charges. Written statements disputing charges must be sent to: Billing Department, Bayou Voip, Inc. PO Box 757, Ocoee, FL 34761 -or- firstname.lastname@example.org.
10.12. SLA. Bayou Voip uses priorities and SLA (Service Level Agreements) in accordance with its operating procedures. We have 4 different levels which relate to our services and customers services these may be mentioned within your trouble ticket should one be opened Low – Minor annoyance, there is a workaround or change of feature request – (Mon – Fri 9am to 5pm 8 business hour fix) Medium – Some annoyance, there is a workaround (Mon – Fri 9am to 5pm same day fix) High – Someone is unable to do their job normally there is no workaround (Mon – Sun 9am to 10pm same day fix) Critical – System down (24/7 – 4 hour fix/workaround) Please note the above levels are related to issues that are on Bayou Voip service side this does not include customer issues with their equipment or internet or electrical outage at a customer site. During customer outage we endeavor to use best effort to find a workaround until their services are fully restored.
11. TOLL CHARGES. Every call to or from Equipment using the Services that originates or terminates in the Public Switched Telephone Network (“PSTN”), including other VoIP networks, is subject to the then applicable toll charges that are associated with the Service Plan, which Bayou Voip will include in bills and Customer will pay. Calls to a phone number outside the United States and Canada to a non-Bayou Voip telephone number will be charged at the current rates published on the Bayou Voip website. The duration of each call is to be calculated in one- minute increments and rounded up to the nearest one-minute increment for any fraction of minutes used. If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. If the computed charges for taxes and surcharges include a fraction of a cent, the fraction is rounded up to the nearest whole cent. When Customer dials an international PSTN phone number, charges may apply regardless of whether the party on the other line answers the call. Calls made by a Customer to an international mobile, rather than landline, or premium rate telephone number, may result in higher toll charges.
12. TELEPHONE NUMBER. Any telephone number provided by Bayou Voip (“Number”) to the Customer shall be leased and not sold. Customer will not use the Number with any other device other than the Equipment without the express written permission of Bayou Voip. Bayou Voip reserves the right to change, cancel or move the Number at its sole discretion.
13. MONITORING SERVICES USE. Customer agrees that Bayou Voip is entitled to monitor Customer’s use of Service, at Bayou Voip’s expense.
14. LOST, STOLEN, ALTERED OR BROKEN EQUIPMENT. Customer shall not modify the Equipment in any way without the express written permission of Bayou Voip. Customer shall not use the Equipment except with the Services provided hereunder. Except as otherwise provided for hereunder, Customer is responsible for all lost, stolen or broken Equipment and may be required to purchase a replacement to continue to receive Services. Replacement charges will be based on the fair retail price of equipment, plus applicable shipping costs and taxes. Customer shall immediately notify Bayou Voip of any lost or stolen Equipment and shall cooperate with Bayou Voip in all reasonable aspects to eliminate actual or potential unauthorized use of the Equipment. At Bayou Voip’s sole option, failure to report lost or stolen equipment in a timely manner will cause Customer to be responsible for all Service Fees accrued until the time that Bayou Voip is informed of the loss or theft and Bayou Voip is entitled to terminate the Services and Agreement following Customer’s breach of this Section.
14.1 EQUIPMENT RETURNS Incorrectly ordered or new equipment that is still in ‘new’ condition in the original packaging will only be accepted with prior permission from Bayou Voip. Customer agrees to pay a 20% restocking charge for any returns made under this clause.
15. PROHIBITED USES. Any use of the Services or any other action that causes a disruption in the network integrity, or threatens or compromises the security of Bayou Voip, its vendors, or the Services whether directly or indirectly, is strictly prohibited and permits Bayou Voip to terminate the Services and the Agreement without prior notice at the sole discretion of Bayou Voip. Customer acknowledges that neither Bayou Voip nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. Customer will NOT use the Services in ways that violate applicable laws including but not limited to laws prohibiting transmission of unsolicited fax advertisements or laws on obtaining third party consent for call recording), infringe the rights of others, or interfere with the users, Agents, services, or equipment of the network. Customer agrees, represents, and warrants that it is purchasing the Services and/or the Equipment for its own internal use only, and shall not resell, transfer or charge for the Services or the Equipment without the advance express written permission of Bayou Voip. Bayou Voip’s Service Plans for Customers that offer unlimited minutes of PSTN calls (“Unlimited PSTN Plans”) or unlimited faxing are for reasonable business use of Customer only. Such use shall not include certain activities including, but not limited to, any auto-dialing, continuous or extensive call forwarding, continuous connectivity, fax broadcast, fax blasting, telemarketing (including without limitation charitable or political solicitation or polling), call center operations, junk faxing, fax spamming, calling/faxing any person (through the use of distribution lists or otherwise) who has not given specific permission to be included in such a process or any other activity that would be inconsistent with reasonable business usage Bayou Voipernational reserves the right to change the customer plan if they should exceed reasonable usage for the plan they are currenty on. Customer will not use the Services to send unsolicited commercial e-mail to recipients outside Customer’s organization. Customer shall not transmit through the Services any unlawful, harassing, defamatory, abusive, threatening, harmful, vulgar, obscene, indecent, or otherwise objectionable communications or material of any kind or nature. Customers further agree not to transmit any material that encourages conduct that could constitute a criminal offense, violate the intellectual property rights of others, give rise to civil liability or otherwise violate any applicable local, state, national or international statute, regulation, or other law. Any use found to be inconsistent with this restriction will result in termination of the Services. Bayou Voip reserves the right to immediately terminate or modify the Services of any Customer using Unlimited PSTN or fax Service Plan if Bayou Voip determines, in its sole discretion, that Customer is not using the Unlimited PSTN or fax Services Plan for Customer’s reasonable business use.
16. USE, STORAGE AND OTHER LIMITATIONS. Bayou Voip reserves the right to establish or modify general practices and limits concerning use of the Services and Software, including without limitation, the maximum number of days that content will be retained by the Service, the maximum disk space and/or bandwidth capacity that will be allotted on servers owned and/or operated by Bayou Voip on Customer’s behalf, if any. Where practical, Bayou Voip will provide the Customer with prior notice of such new or modified practices; provided however, that Bayou Voip shall have the absolute right to implement such new or modified practices without prior notice in its sole discretion and without liability or any kind.
17. ELECTRONIC RECORDING. Customer acknowledges and understands that there are federal and state statutes governing the electronic recording of telephone conversations and that Bayou Voip will not be liable for any illegal use of the service. Because Customer circumstances vary widely, Customers should carefully review their own circumstances when deciding whether to use the recording features of the service and it is the Customer’s responsibility to determine if the electronic recordings are legal under applicable federal and state laws. Bayou Voip is not responsible for any misinterpretation, lack of understanding or lack of knowledge regarding the use of electronic recordings or the use of its products by the Customer, whether legal or illegal, and Customer will indemnify and hold Bayou Voip harmless for any claims, damages, fines, or penalties arising out of Customer’s failure to adhere to applicable electronic recording laws.
18. RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF CUSTOMER COMMUNICATIONS. Customer is solely responsible for maintaining the confidentiality of Customer’s Login, and will not to transfer Login, email address or password, or lend or otherwise transfer use of or access to the Bayou Voip Services, to any third party. Customer is solely responsible for any and all activities that occur under Customer’s account. Customer will comply with applicable foreign, federal, state, and local law in its use of the Services, including but not limited to laws regarding online behavior, acceptable content, and the transmission of equipment and information under applicable export laws. Recognizing the global nature of the Internet, Customer also agrees to comply with applicable local rules or codes of conduct (including, if applicable, codes of conduct or policies imposed by employers) regarding online behavior and acceptable content. Use of the Services is void where prohibited. Customer will immediately notify Bayou Voip of any unauthorized use of Customer’s account or any other breach of security related to Customer’s account or the Bayou Voip Services, and to ensure that Customer completes a “log off”/exit from Customer’s account (if applicable) at the end of each session. Bayou Voip is not liable for any loss or damage arising from Customer failure to comply with any of the foregoing obligations. In consideration for using the Bayou Voip Services, Customer will: (1) provide certain current, complete, and accurate information about Customer when prompted to do so by the Bayou Voip Services, and (2) maintain and update this information as required to keep it current, complete and accurate. Customer warrants that any such information will be accurate. Customer agrees that Customer is solely responsible for the content of all visual, written or audible communications (“Content”) sent by Customer or displayed or uploaded by Customer in using the Services. Although Bayou Voip is not responsible for any such communications, Bayou Voip may delete any such communications of which Bayou Voip becomes aware, at any time without notice to Customer. Customer retains copyright and any other rights already held in content that Customer submits, posts or displays on or through, the Services. Customer understands and agrees that by displaying, exchanging or uploading Content to a Bayou Voip website, transmitting Content using the Services or otherwise providing Content to Bayou Voip, Customer automatically grant (and warrant and represent Customer has a right to grant) to Bayou Voip a world-wide, royalty-free, sub-licensable (so Bayou Voip affiliates, contractors, resellers and partners can deliver the Services) perpetual, irrevocable license to use, modify, publicly perform, publicly display, reproduce and distribute the Content in the course of offering the Services, including associates websites (“Sites”).
32. PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE. Upon expiration, cancellation or termination of the Services, Customer shall relinquish and discontinue use of any Numbers, voice mail access numbers, Logins and/or web portals Sites assigned to Customer by Bayou Voip or its vendors.
33. SOFTWARE COPYRIGHT. The Software is protected by copyright law and international treaty provisions. The Software is subject to the terms and conditions in licenses of third parties, and Bayou Voip will use commercially reasonable efforts to pass through licenses for Software sub- licensed to Customer in providing Bayou Voip’s Services. Customer has no right to inspect, possess, use, copy, or attempt to discover the source code (or any portion thereof) used to create any Software, except to the extent that Customer is expressly permitted to decompile the Software under applicable law and Customer notifies Bayou Voip of Customer’s intention to decompile the Software and Customer’s reason to do so.
34. SURVIVAL. The provisions of sections 2, 6.3, 7, 10, 22, 23, 25, 26, 28, 29, 30, 32, 34, 35, 36, 37, 38, 39, 40, 41, and 42 shall survive any expiration or termination of the Agreement.
35. NOTICES. Bayou Voip communicates with Customers primarily via email. Notices to Customer shall be sent to the email address specified by Customer at the time Customer ordered the Services or as subsequently specified by Customer (“Email Address”). Customer is responsible for notifying Bayou Voip of any Email Address changes. Customer agrees that sending a message to the Email Address is the agreed upon means of providing notification. Email is used to communicate important information about the Services, billing, changes to the Services and other information. The information is time-sensitive in nature. It is required that Customer read any email sent to the Email Address in a timely manner in order to avoid any potential interruption in the Services provided here under. 36. FORCE MAJEURE (EVENTS BEYOND OUR CONTROL). Bayou Voip shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, fire, flood, earthquake, tsunami, accident, riot, war, terrorism, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties of Bayou Voip as may occur in spite of Bayou Voip’s best efforts.
37. ENTIRE AGREEMENT. The terms and conditions of the Agreement, along with the rates posted to the website currently located at Bayouvoip.net/Terms or otherwise agreed to as part of the Agreement, constitute the entire agreement with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to the Services. The terms and conditions of the Agreement are in lieu of and replace any and all terms and conditions set forth in any documents issued by Customer, including, without limitation, purchase orders and specifications. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY CUSTOMER AT ANY TIME ARE HEREBY OBJECTED TO BY Bayou Voip, AND ANY SUCH DOCUMENTS SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE OR SERVICE RENDERED HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON Bayou Voip. Except as set forth in Section 20, no waiver or amendment to this contract or these terms and conditions shall be binding on Bayou Voip unless made in writing expressly stating that it is such a waiver or amendment and signed by an Officer of Bayou Voip.
38. GOVERNING LAW. The Agreement and the relationship between Customer and Bayou Voip shall be governed by the laws of the State of Texas without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement.
39. NO WAIVER. The failure of Bayou Voip to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.
40. SEVERABILITY. The unenforceability of any provision or provisions of the Agreement shall not render unenforceable or impair its remainder. If any provision of the Agreement is deemed invalid or unenforceable in whole or in part, the Agreement shall be deemed amended to delete or modify, as necessary, the invalid or unenforceable provision to render it valid, enforceable, and, insofar as possible, consistent with the original intent of the parties.
41. ASSIGNMENT; BINDING EFFECT. Customer shall not assign this Agreement or delegate Customer’s duties hereunder without Bayou Voip’s prior written consent. Subject to the foregoing, this agreement shall be binding upon the heirs, representatives, successors, and permitted assigns of Bayou Voip and Customer.
42. HEADINGS. The headings in the Agreement are solely for the convenience of reference and shall not be given any effect in the construction or interpretation of this Agreement.
43. HACKING. If your account is hacked and the reason for the hack is determined to be Bayou Voip’s fault due to negligence or other error on the part of Bayou Voip or any of its vendors, employees or contractors then Bayou Voip will not hold the customer liable to the resulting charges. However, if the hack is due to the fault of the customer then the customer will be liable for 100% of the charges incurred. Customers are encouraged to never place a VoIP phone or other piece of equipment that is connected to Bayou Voip’s servers directly on the Internet. This means never placing a piece of equipment on the Internet without the security of an approved firewall or router.
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Bayou Technologies/Bayou Voip
11601 Shadow Creek Pkwy, #111-276, Pearland, TX 77584