TERMS OF SERVICES
Last Updated on August 19, 2021
These Terms of Service (these “Terms”) govern the provision and use of certain telecommunication services, as further described in an applicable Service Agreement(s) (the “Services”). By signing the Service Agreement, or by accessing or using the Service, you are agreeing to these Terms, which form a legally binding agreement between you, as the user of the Service (“Customer”) and Bel Air Internet, LLC dba BAIConnect, by and through one of its wholly-owned subsidiaries (“BAI”), a California limited liability company. If you are not eligible to use the Service in accordance with these Terms, or if you do not agree with these Terms, you must not access or use the Service. BAI and Customer may be referred herein as a “Party” and collectively as the “Parties.”
THESE TERMS CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ THESE TERMS CAREFULLY. THESE TERMS INCLUDE DISPUTE RESOLUTION PROVISIONS THAT LIMIT YOUR RIGHTS TO SUE BAI IN A COURT OF LAW AND TO BRING OR PARTICIPATE IN ANY CLASS OR GROUP PROCEEDING. THEY ALSO CONTAIN PROVISIONS THAT LIMIT BAI’S LIABILITY TO YOU.
1. Service; Service Term
1.1 Subject to Section 2 of these Terms, BAI will provide Services to Customer pursuant to a Service Agreement, entered into and subject to these Terms, issued by Customer and subject to conditional confirmation of acceptance in writing by BAI. Each Service Agreement, if accepted by BAI, shall be performed and construed in accordance with the terms and conditions of these Terms. Each Service Agreement shall incorporate by reference, and shall be subject to, the terms and conditions of these Terms and shall clearly set forth the term, pricing, service type and location(s), monthly recurring charges (“MRC”), non-recurring charges (“NRC”), other incidental or additional charges (such as additional network equipment, wiring or additional services or installation charges, or other charges), and any additional specific terms for the Services. Additional work ordered by the Customer but not contained in the initial Service Agreement will be covered by a separate work order, once accepted by BAI, and included by way of service addendum to this Service Agreement. Any purchase order submitted by the Customer to BAI shall be used only for invoice processing and order purposes.
1.2 All Service Agreement shall be subject to availability and acceptance by BAI. BAI reserves the right, in its sole reasonable discretion, to reject any Service Agreement prior to the installation of Service date. BAI will make commercially reasonable efforts to install Services by the date requested by Customer; however, BAI cannot provide, and hereby disclaims, any representations or warranties that Services will be installed and provisioned on Customer’s desired installation date. If Customer delays the installation of Services, certain fees and facility reservation charges may be charged to Customer. Installation of Services occurs at the location where BAI’s facilities interconnect with Customer’s or any third party’s facilities. Upon the date of the earlier of either installation of Services or sixty (60) days from the date of the Service Agreement (“Commencement Date“), BAI shall provide the Services at the locations set forth for the number of months set forth (“Service Term”) as detailed on the Service Agreement (s).
1.3 Depending upon the nature of the Service(s), BAI may conduct a physical site survey at the Service location following the date of the Service Agreement. In the event that a site survey or installation is scheduled, but BAI is unable to conduct the site survey or perform the installation due to any action or inaction by Customer, Customer may be required to pay BAI a standard rescheduling fee. Customer acknowledges and agrees that the physical site survey remains a precondition to BAI accepting the Service Agreement and providing the Services. Following the completion of the physical site survey, BAI may, in its sole discretion, either: (i) deem the provision of Service to be economically or technically not commercially feasible, and notify Customer of cancellation of the Service Agreement; or (ii) prepare a schedule to these Terms in the form of a Statement of Work, which will outline the work and any associated fees, together with any Customer requirements necessary as a precondition to installation of Service (“Customer Requirements”). All required pre-installation work and Customer Requirements must be completed prior to Installation of Services.
1.4 In addition to the Customer Requirements, Customer acknowledges and agrees that the following, as applicable, are Customer’s sole responsibility, and is expressly excluded from BAI’s obligations hereunder: (i) the provision of horizontal pathway for cabling from Customer’s suite to the Service Location’s IDF/Telecom closet; (ii) the installation of conduit; (iii) software development and/or management; (iv) LAN assistance, network management and firewalls unless equipment is being leased by BAI; (v) provide routers and/or any and all other end user connectivity devices, unless leased from BAI; (vi) electrical work and any wiring beyond the BAI handoff; (vii) communicating with and obtaining approval from property management/ownership for the installation of Services and any additional requirements determined by the Statement of Work; and (viii) integration of the BAI circuit to Customer’s internal infrastructure.
1.5 The Customer may select at any time, during the Service Term, to add additional Services by executing an amended Service Agreement with BAI. The amended Service Agreement will replace or supplement the existing Service set forth in the then current Service Agreement. The amended Service Agreement may extend or renew the Service Term, as mutually agreed by the parties.
1.6 Customer acknowledges and agrees that, unless purchased by Customer, BAI is the sole owner of all BAI Equipment installed and/or utilized by BAI in providing Customer with Service(s). As such, within ten (10) days of the termination of these Terms, Customer shall provide BAI with access to the Service Location to retrieve the BAI Equipment. Failure to do so shall result in Customer becoming liable for all unrecovered equipment. BAI shall provide Customer with an itemized invoice for all such BAI Equipment, which shall be payable immediately upon receipt by Customer.
1.7 Unless otherwise agreed by the Parties in an applicable Service Agreement, upon the expiration of the Services Term, the Service Agreement term will automatically renew and extend on an annual basis, each a “Renewal Services Term,” unless terminated by Customer or BAI with ninety (90) days’ written notice prior to the completion of the Services Term or the then-current Renewal Services Term.
1.8 BAI reserves the right to verify Customer’s creditworthiness as a condition of providing Service. BAI may, in its sole discretion, require assurance of payment from Customer. BAI may require Customer to tender a deposit up to the maximum permitted by law to guarantee payment hereunder. Upon termination of the applicable Service Agreement, BAI will return the balance of the deposit, if any, to Customer along with interest as required by law.
2. Payment for Service
2.1 Rates and charges are described in the applicable Service Agreement. BAI will invoice Customer monthly in advance for all amounts due and owing to BAI for services rendered under the terms of this Terms. Surcharges and assessments which are not required by regulatory agencies, but which BAI is permitted to charge to recover expenses, may be applied and adjusted from time to time. All such charges will be set forth on a detailed invoice. All amounts and charges set forth in the invoice are referred herein as the “Charges.” BAI may bill Customer for billing corrections or adjustments to Charges for the Services rendered no later than one hundred eighty (180) days after the last day of the billing cycle during which BAI provided the Service(s) to the Customer, unless a different period is required by federal, state, or local laws, regulations, rulings, orders or other actions of governmental agencies (“Applicable Law”).
2.2 All Charges for the Services are exclusive of any taxes and other fees and surcharges. Customer shall be responsible for payment of all applicable taxes that arise in any jurisdiction, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, and bypass (“Taxes”). BAI will collect all such Taxes unless Customer provides BAI with proof of exemption.
2.3 Invoices are due upon and payable upon receipt and no later than 30 days after the date of such invoice (“Due Date”). If Customer does not make payment of undisputed charges by the Due Date, BAI may suspend Service after issuing notice to Customer and the failure of Customer to pay all undisputed amounts within a period equal to the greater of ten (10) days. Following such a suspension, BAI may condition reinstatement of Service on one or more of the following events: (a) payment of all charges then due, including any late fees and interest charges; (b) satisfactory assurance (such as a deposit) of Customer’s ability to pay for Service; and (c) advance payment for the cost of reinstating Service, including a reconnection fee which may be assessed. If Customer fails to timely cure the nonpayment, Customer will be deemed to have terminated the Service as of the effective date of the suspension and will be in Default of these Terms pursuant to Section 4.1.
2.4 In the event Customer disputes, in good faith, any portion of an invoice, in whole or in part, Customer shall notify BAI in writing and provide detailed documentation supporting its dispute within ninety (90) days of the invoice date or the Customer’s right to any billing adjustment shall be waived. In the event of a billing dispute, Customer shall timely pay all undisputed amounts. If the dispute is resolved against Customer, Customer shall pay such amounts due plus interest from the original Due Date. Acceptance of payments of less than the full amount due, including an instrument tendered as full satisfaction of a debt, shall not be deemed, in the absence of a written agreement executed by both Parties, an agreement on the part of BAI to accept less than the full amount due. Any tender of an instrument as full satisfaction of a debt must be sent to BAI, pursuant to the Notice requirements set forth in Section 12 of these Terms. Customer may not offset disputed amounts from one invoice against payments due on the same or another account.
3. Services; Maintenance
3.1 Services will meet industry standards. BAI will maintain its facilities and equipment used to provide the Services, at no additional charge to Customer, except where work or service calls result from failure or malfunction in, or improper operation of, any Customer’s or third party’s facilities or equipment. In such event, Customer will reimburse BAI for the cost of the required maintenance at BAI’s standard time and material rate plus any taxes imposed upon BAI related to such maintenance, and Customer shall be responsible for the cost of repair or replacement of BAI equipment that is damaged by Customer’s actions or equipment.
3.2 BAI equipment provided in connection with the Services shall remain the sole and exclusive property of BAI or BAI’s assignee (“BAI Equipment”). Customer acknowledges and agrees that BAI Equipment shall not be deemed a fixture. Customer will not damage, tamper with, remove any BAI Equipment, including any identifying plates, tags or labels. Customer shall not permit any liens on BAI Equipment, and any such lien will be discharged by Customer within ten (10) days of notice of filing. Failure to discharge any such lien is a material breach of this Terms, and may result in immediate termination. Upon termination of the Service(s), Customer shall, upon receipt of notice from BAI, provide reasonable access to BAI to recover the BAI Equipment, in accordance with the instructions in the notice. Customer’s damage to the BAI Equipment (reasonable wear and tear excepted) or failure to return the equipment, as directed, shall constitute Customer acceptance of ownership of and responsibility for the equipment, and BAI may invoice Customer for the then fair market value of such equipment.
3.3 BAI reserves the right to substitute, change or rearrange any equipment or facilities used in delivering Services that does not affect the quality, cost or type of Services. BAI will manage its network in BAI’s sole discretion.
4. Default; Suspension/Adjustment of Service.
4.1 Customer is in default of these Terms if Customer (each of the following, a “Customer Default”):
a. Fails to: (i) cure any monetary breach within ten (10) days of receiving notice of the breach from BAI; or (ii) cure any non-monetary breach of any terms of these Terms within thirty (30) days of receiving notice of the breach from BAI files or initiates proceedings or has proceedings filed or initiated against it, seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or other similar law; or
b. Uses the Services and any equipment associated therewith and such use: (i) interferes with, degrade, or otherwise impairs the Service; (ii) impairs privacy of any communications over such network; (iii) Customer’s excessive Service use consumption; (iv) causes damage of any nature to BAI’s Equipment, assets, or customers; (v) frightens, abuses, torments or harasses, or create hazards to BAI or its network; (vi) uses the Services, or permits the Services to be used for any illegal purpose; or (vii) violates the provisions of BAI’s Acceptable Use Policy, or other applicable policies and procedures.
4.2 In the event of a Customer Default, BAI shall notify and require Customer to promptly cure such Customer Default, and in the event Customer fails to take requisite steps, then upon notice to Customer BAI may, in its sole discretion, immediately suspend or terminate the Services without liability.
5. Termination; Early Termination
5.1 Except as provided herein, in the event Customer cancels all or a part of the Services prior to Commencement Date, BAI may charge Customer a cancellation fee equal to one (1) month’s MRC for the cancelled Services, plus any installation costs, and any other costs incurred by BAI, whether previously waived or not, and any third-party charges incurred by BAI with respect to such cancelled Services.
5.2 Except as provided herein, if Customer terminates all or any part of the Services at a location at any time during the Service Term or a Renewal Service Term that is in effect, or if BAI terminates all or any part of the Services as a result of Customer’s breach before the end of the Service Term or a Renewal Service Term that is in effect, BAI may charge Customer an early termination fee equal to and including any or all of the following: 100% of the total MRC, surcharges and taxes for the Service Term or the Renewal Service Term then remaining for the terminated Services, plus any activation, installation costs, and all other fees or costs incurred by BAI that under the terms of the applicable Order are chargeable to Customer in addition to MRC, less amounts already paid by Customer with respect to such charges for the terminated Services. Customer acknowledges that BAI’s damages for a cancellation or early termination would be difficult to determine and the cancellation and termination charge(s) constitute liquidated damages and are not intended as a penalty but are intended as a mutually agreed upon amount representing, but not limited to, lost revenue, proportionate or actual third-party costs, and internal costs. All such amounts will become due and payable by Customer to BAI when invoiced.
5.3 Customer will not be liable for the cancellation or early termination fees set forth above if (a) cancellation or termination is due to a material breach of these Terms by BAI or (b) if (i) Customer orders from BAI, at the time of Service cancellation or termination, retail services of equal or greater aggregate MRC than the Services cancelled or terminated, and (ii) the new services are approved by BAI, and (iii) Customer compensates BAI for any unrecovered installation and capital costs and any costs charged by third parties with respect to the cancelled or terminated Services.
6. Customer Representations and Warranties. The Customer represents and warrants that: (a) it is an entity, duly organized, validly existing and in good standing under the laws of its origin, with all requisite power to enter into and perform its obligations under these Terms in accordance with its terms; (b) neither its equipment nor facilities will pose a hazard to BAI’s Equipment or create a hazard to BAI’s personnel or customers or the public in general; (c) its use of the Services will comply and conform with all Applicable Law and any other authorities having jurisdiction over the subject matter of these Terms and it will be responsible for applying for, obtaining and maintaining all registrations and certifications which may be required by such authorities; (d) unless otherwise agreed to by the Parties, it will not resell all or a portion of the Service(s) provided by BAI under these Terms. Customer will indemnify and hold BAI harmless from any and all loss, liability, claim, demand, and expense (including reasonable attorneys’ fees) related to Customer’s violation of this Section.
7.1 Customer will indemnify, hold harmless, and defend BAI and its affiliates, and their respective officers, directors, employees, agents and subcontractors from liabilities, claims or damages and expenses whatsoever (including reasonable attorneys’ fees) arising out of or in connection with (a) Customer’s improper use of the Services and/or Customer’s end-users or third parties improper use of the Services, resale, or sharing of the Services in violation of any Applicable Law or in violation of any provision of these Terms; (b) claims by BAI or third parties for damage to real or tangible personal property or for bodily injury or death which is caused by Customer and is directly due to Customer’s negligence or willful misconduct or which is caused by hazards created by Customer’s equipment or facilities; (c) any liens placed on BAI Equipment due to Customer’s action or inaction; and (d) any and all costs, claims, taxes, charges, and surcharges levied against BAI relative to Customer’s claim for tax exempt status with respect to Taxes to the extent that such exempt status is not found to be valid. Customer’s indemnification obligations do not apply to claims for damages to real or tangible personal property or for bodily injury or death if solely caused by BAI’s gross negligence or willful misconduct;
7.2 BAI will indemnify, hold harmless, and defend Customer and its affiliates, and their respective officers, directors, employees, agents and subcontractors from liabilities, claims or damages and expenses whatsoever (including reasonable attorneys’ fees) arising out of or in connection with (a) claims by third parties for damage to real or tangible personal property or for bodily injury or death which is caused by BAI and is directly due to BAI’s negligence or willful misconduct or which is caused by hazards created by BAI’s Equipment or facilities; or (b) BAI’s violation of any Applicable Law. For the avoidance of doubt, the Parties acknowledge and agree that BAI shall not be obligated to indemnify Customer, and Customer shall defend and indemnify BAI hereunder, for any claims by any third party, including end user customers, arising from services provided by Customer that incorporate any of the Services.
7.3 The indemnified Party shall promptly notify the indemnifying Party in writing of any such suit or claim, and shall take such action as may be necessary to avoid default or other adverse consequences in connection with such claim. The indemnifying Party shall have the right to select counsel and to control the defense and settlement of such claim; provided, however, that the indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in handling the claim, and provided further, that the indemnifying Party shall not take any action in defense or settlement of the claim that would negatively impact the indemnified Party. The indemnified Party shall provide cooperation and participation of its personnel as required for the defense at the cost and expense of the indemnifying Party.
8. LIMITED LIABILITY. CUSTOMER’S RIGHT TO CREDITS AS MAY BE PROVIDED IN THESE TERMS SHALL BE CUSTOMER’S SOLE REMEDY FOR DAMAGES WITH REGARD TO SERVICE PERFORMANCE ISSUES. BAI’S LIABILITY, AND THE EXCLUSIVE REMEDY OF CUSTOMER FOR DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES AND/OR THESE TERMS, WILL BE SOLELY LIMITED TO AN AMOUNT NO GREATER THAN THE AMOUNTS INVOICED TO CUSTOMER BY BAI DURING THE SIX (6) MONTHS PRIOR TO THE OCCURRENCE OF ANY CLAIM. IN NO EVENT WILL BAI BE LIABLE UNDER THESE TERMS FOR LOSS OF USE, INCOME OR PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS OR HARM TO BUSINESS OR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), WARRANTY OR ANY OTHER LEGAL THEORY, REGARDLESS OF THE FORESEEABILITY THEREOF EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, CUSTOMER SHALL BE SOLELY
RESPONSIBLE FOR ALL OF THE SECURITY AND CONFIDENTIALITY OF INFORMATION IT TRANSMITS USING THE SERVICE. FURTHER, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ALL OF THE SECURITY AND CONFIDENTIALITY OF INFORMATION IT TRANSMITS USING THE SERVICE.
9. DISCLAIMER/LIMITED WARRANTY. EXCEPT AS SPECIFICALLY SET FORTH IN THESE TERMS, BAI MAKES NO WARRANTIES, EXPRESS OR IMPLIED, UNDER THESE TERMS AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BAI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE
10. Confidentiality. “Confidential Information” means all information, including these Terms, regarding the telecommunications needs of Customer and the Services that BAI offers under these Terms which is disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), to the extent that such information is marked or identified as confidential or proprietary. Notwithstanding the foregoing, all written or oral pricing and contract proposals exchanged between the Parties shall be deemed Confidential Information, whether or not so designated. Confidential Information is the property of the Disclosing Party and shall be returned to the Disclosing Party upon request. Information that (i) is independently developed by the Receiving Party, (ii) is lawfully received by the Receiving Party free of any obligation to keep it confidential, or (iii) becomes generally available to the public other than by breach of these Terms, shall not be considered Confidential Information. A Receiving Party, including its officers, directors, employees, partners, affiliates, agents and representatives, shall hold all Confidential Information in confidence from the time of disclosure until three (3) years following its disclosure. During that period, the Receiving Party: (a) shall use such Confidential Information only for the purposes of performing its obligations under these Terms; (b) shall reproduce such Confidential Information only to the extent necessary for such purposes; (c) shall restrict disclosure of such Confidential Information to employees that have a need to know for such purposes; (d) shall not disclose Confidential Information to any third party without prior written approval of the Disclosing Party except as expressly provided in these Terms or as required by law; and (e) shall use at least the same degree of care (in no event less than reasonable care) as it uses with regard to its own proprietary or confidential information to prevent the disclosure, unauthorized use or publication of Confidential Information. In the event that the Receiving Party is required to disclose Confidential Information of the Disclosing Party pursuant to law, the Receiving Party will notify the Disclosing Party of the required disclosure with sufficient time for the Disclosing Party to seek relief, will cooperate with the Disclosing Party in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure. Notwithstanding anything in this Article 10 to the contrary, the fact that Customer is a customer of BAI shall not be deemed Confidential Information and BAI may disclose the same without liability therefor.
11. Force Majeure. In the event that either Party’s performance is delayed, prevented, or inhibited because of any act of God, fire, casualty, delay or disruption in transportation, flood, war, strike, lockout, epidemic, destruction or shut-down of facilities, shortage or curtailment, riot, insurrection, governmental acts or directives, any full or partial failure of any third party communications or computer network or any other cause beyond such Party’s reasonable control (“Force Majeure”), the Party’s performance will be excused and the time for the performance will be extended for the period of delay or inability to perform resulting from such occurrence. The occurrence of such an event will not constitute grounds for a declaration of default by either Party hereunder; however, in the event that such Force Majeure event continues for in excess of thirty (30) days, the Party that is not the subject of the Force Majeure event may terminate the Services that are the subject of the Force Majeure event without liability for termination.
12. General. These Terms incorporates all accepted Service Agreement(s) for Services between the Parties, any attachments, policies and procedures, including but not limited to the Acceptable Use Policy, found on BAI’s website: www.baiconnect.com under Legal, and comprises the entire agreement between the Parties. Additional details pertaining to the Services are set forth in the Service Agreement(s) entered into in connection with these Terms. These Terms supersedes any and all prior discussions, representations, memoranda, or agreements – oral or written – between the Parties hereto. Except as otherwise permitted herein, any amendment must be in writing and signed by the Parties hereto. Electronic copies of these Terms and any amendments or modification hereto, including electronic or facsimile signatures, will be accepted by the Parties as originals. The failure of either Party to insist upon the performance of any provision or to exercise any right granted hereunder, will not be construed as a waiver of such provision(s), and the same will continue in full force. If any provision hereof is held to be invalid, void, or unenforceable, the remainder of the provisions will nevertheless remain unimpaired and in effect. All notices to Customer under these Terms will be in writing and will be made by one or more of the following methods: bill message or insert incorporated in or with the Customer’s invoice by its normal means of transmission, first class mail, certified mail, or overnight delivery. Notices will be sent to the address of record, and in the event of multiple addresses, to the address of the parent account. In the case of a notice to BAI, all notices under these Terms will be in writing and will be made by personal delivery, overnight delivery, or certified mail with a copy to BAIConnect, 15301 Ventura Blvd, Suite 250, Sherman Oaks, CA 91403, Attn: Legal Department. BAI shall notify Customer of any change in this contact address for purpose of notices under these Terms using the method of notice called for in this Section 12. Delivery will be deemed to occur upon receipt. The various rights and remedies given to or reserved by either Party herein or allowed by Applicable Law, are cumulative, and no delay or omission to exercise any of its rights will be construed as a waiver of any default or acquiescence, nor will any waiver of any breach or any provision be considered to condone any continuing or subsequent breach of the same provision. No course of dealing between the Parties and no failure to exercise any right hereunder shall be construed as a waiver of any provision hereof. Unless as otherwise specifically agreed to in a writing signed by an authorized representative of each of the Parties, if there is any conflict or inconsistency between these Terms, an Addendum, and a Service Agreement, such conflict or inconsistency will be resolved by giving precedence: (a) first, to an Addendum; (b) second, to these Terms, including its Exhibits; and (c) third, to a Service Agreement. Customer has been provided with the opportunity to review these Terms and consult counsel; therefore, in the event of any ambiguities, no inferences shall be drawn against BAI. Customer may not assign these Terms without the prior written consent of BAI. These Terms shall be governed by and construed in accordance with the laws of the State of California, excluding any choice of law provisions. The Parties agree that any dispute arising under these Terms shall have its venue in Los Angeles County, California. Nothing in these Terms is intended to, or shall be construed, as creating a partnership or any third-party beneficiaries.
END OF TERMS OF SERVICE