TERMS OF SERVICES

BAI CONNECT GENERAL TERMS OF USE AGREEMENT

Last Updated on December 15, 2023

THIS BAI CONNECT GENERAL TERMS OF USE AGREEMENT CONTAINS AN ARBITRATION PROVISION, WHICH REQUIRES THAT ANY DISPUTE BETWEEN CUSTOMERS AND BAI CONNECT, EXCEPT FOR NON-PAYMENT OR LATE PAYMENT AND BREACH OF ANY OBLIGATION OF CONFIDENTIALITY OR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT FOR WHICH AN INJUNCTION MAY BE SOUGHT, IS SUBJECT TO A CLASS ACTION AND JURY TRIAL WAIVER, AND MUST BE RESOLVED BY INDIVIDUAL BINDING ARBITRATION. PLEASE READ SECTION 11 OF THIS GENERAL TERMS OF USE AGREEMENT CAREFULLY, AS IT SETS FORTH THE ARBITRATION TERMS AND LIMITS THE REMEDIES AVAILABLE TO CUSTOMERS IN THE EVENT OF A DISPUTE.

All capitalized terms herein have the same meaning as defined in BAI Connect’s various service agreements as identified below.

This BAI Connect General Terms of Use Agreement ( “TOU” or “Terms”) govern the provision and use of all Services provided by Bel Air Internet, LLC d/b/a BAI Connect (“BAI,” “us,” “our,” or “we”), a California limited liability company by and through one of its wholly-owned subsidiaries or affiliates, as further described in an applicable BAI Subscriber Service Agreement (“BAI Subscriber Agreement”), or Customer Service Agreement, or Internet Service Agreement (collectively, “BAI Service Agreements”). By signing any of the applicable BAI Service Agreements, or by accessing or using the Service(s), you are agreeing to these Terms, which form a legally binding agreement between you, as the customer or user of the Service(s) (collectively “Customer,” “you,” “your,” “he/she,” or “his/her”). BAI and Customer may individually be referred herein as a “Party” and collectively as the “Parties.”

If you are not eligible to use the Service(s) in accordance with these Terms, or if you do not agree with these Terms, you must not access or use the Service(s).

In the event of a conflict or inconsistency between the terms in the various BAI Service Agreements, the terms that are most specific to the Service(s) or issue in question will govern.  For example, a conflict or inconsistency shall be resolved by giving precedence in this order: (a) first, to an Addendum or Statement of Work to any BAI Service Agreement; (b) second, to this TOU (including its Exhibits); and (c) third, a BAI Service Agreement.

1.     Service(s); Service Term

1.1.      Subject to Section 2 of these Terms, BAI will provide Service(s) to Customer pursuant to a BAI Service Agreement, entered into and subject to these Terms and subject to conditional confirmation of acceptance in writing by BAI. Each BAI Service Agreement, when accepted by BAI, shall be performed and construed in accordance with the terms and conditions of these Terms.  Each BAI 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 BAI Service Agreement will be covered by a separate work order, once accepted by BAI, and included by way of service addendum (“Addendum”) to the applicable BAI Service Agreement. Any purchase order submitted by the Customer to BAI shall be used only for invoice processing and order purposes.

1.2.      All BAI Service Agreements shall be subject to availability and acceptance by BAI. BAI reserves the right, in its sole reasonable discretion, to reject any BAI Service Agreement prior to the Service installation date. BAI will make commercially reasonable efforts to install Service(s) 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 Fees”). 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 Effective Date of the applicable BAI Service Agreement (“Commencement Date“), BAI shall provide the Services at the locations set forth for the length of time set forth (“Service Term”) as detailed in the BAI Service Agreement.

1.3.      Depending upon the nature of the Service(s), BAI may conduct a physical site survey at the Service Location following the Effective Date of the applicable BAI 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 fee to reschedule the installation (“Standard Rescheduling Fee”). Customer acknowledges and agrees that the physical site survey remains a precondition to BAI accepting the applicable BAI 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 BAI Service Agreement; or (ii) prepare an exhibit 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 the installation of Services.

1.4.      In addition to the Customer Requirements, Customer understands, acknowledges and agrees that the following, as applicable, are Customer’s sole responsibility, and is expressly excluded from BAI’s obligations hereunder: (a) the provision of horizontal pathway for cabling from Customer’s suite to the Service Location’s IDF/Telecom closet; (b) the installation of conduit; (c) software development and/or management; (d) LAN assistance, network management and firewalls unless equipment is being leased by BAI; (e) provide routers and/or any and all other end user connectivity devices, unless leased from BAI; (f) electrical work and any wiring beyond the BAI handoff; (g) 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 (h) 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 BAI Service Agreement. The amended BAI Service Agreement will replace or supplement the existing Service(s) set forth in the then current BAI Service Agreement. The amended BAI Service Agreement may extend or renew the Service Term, as mutually agreed to by the Parties.

1.6.      For an applicable BAI Service Agreement that does not have a month-to-month Service Term, unless otherwise agreed to by the Parties, upon expiration the Initial Term will automatically renew and extend on an annual basis, each a “Renewal Term,” unless terminated by Customer or BAI with ninety (90) days written notice prior to the completion of the then-current Renewal Term.

1.7.      BAI reserves the right to verify Customer’s creditworthiness as a condition of providing Service and 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 BAI Service Agreement, BAI will return the balance of the deposit, if any, to Customer along with interest as required by law.

1.8       Customer agrees to the following Service Appointment terms. A minimum $100 fee may be charged to Customer if: (a) Customer refused to participate in initial remote troubleshooting with BAI’s technical support team; (b) it is determined that the issue was not the fault of BAI’s service, but rather caused by a Customer’s device or user error; (c) Customer cancels less than (24) hours prior to Service Appointment time, is not home at scheduled Service Appointment time and/or has not designated a Customer representative over the age of 18 years old to allow BAI technicians entrance to Customer’s residence at scheduled Service Appointment time. Both Customer and Customer’s representative, if applicable, must be prepared to show the technician the device locations and ensure obstructions are cleared from areas requiring service. BAI technicians will not move furniture to get to the devise or outlets. Customer also acknowledges that issues outside of BAI’s control may require additional Service Appointment(s) to resolve all reported issues. Any determined applicable Service Appointment Fees will be billed to the Customer’s current method of payment after the Service Appointment is completed. Notwithstanding and in addition to any other Service Appointment terms, BAI is not responsible for configuring or rectifying issues with Customer-owned devices under any circumstances. Such devices include, but are not limited to, Customer-owned Wi-Fi routers, televisions and AV systems/equipment, computers, tablets and cell phones, internal networking, internet-enabled devices such as video cameras, smart speakers, smart TVs, etc.

2.     Payment for Service

2.1.      Rates and charges are described in the applicable BAI 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 TOU. Such charges may also include BAI’s recovery of assessed regulatory fees or payments as allowed by local, state and/or federal law.  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), unless a different period is required by (a) federal, state, or local statutes, regulations, rulings, ordinances, orders or other actions of governmental entities; or (b) applicable building codes, zoning ordinances, homeowners’ association rules, covenants, conditions (collectively “Applicable Law”).

2.2.      All Charges for the Services are exclusive of any taxes, other fees and surcharges that may be assessed to Customer. 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 (collectively, “Taxes”). BAI will collect all such Taxes unless Customer provides BAI with a valid 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 the 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) calendar days.  Following a suspension, at its sole discretion, BAI will 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 future Service(s); and (c) advance payment for the cost of reinstating Service, including assessment of a reconnection fee (“Reconnection Fee”).  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, herein.

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 ten (10) calendar 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 five percent (5)% interest from the original Due Date.

2.4.1. Customer understands, acknowledges and agrees that 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 14.5 of these Terms.

2.4.2. Customer may not offset disputed amounts from one invoice against payments due on the same or another account.

3.     Services; BAI Equipment & Maintenance

3.1.      Services will meet industry standards. BAI will maintain and repair the BAI Network(s), and BAI Equipment used to provide the Services, at no additional charge to Customer, except where work or service calls result from Customer’s or its end-user’s negligence or failure in proper maintenance or operations of the BAI Network and/or BAI Equipment.  In such event, Customer will be billed 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 leased in connection with the Services shall remain the sole and exclusive property of BAI.

3.2.1. Customer understands, acknowledges and agrees by confirming the Service installation by BAI, that the BAI Equipment provided was installed at a location and in the manner authorized by Customer at the Customer’s residence or unit. BAI Equipment shall remain at all times, the exclusive property of BAI and will be provided to the Customer under the terms set forth in this TOU and other BAI Service Agreements. Customer shall acquire no interest in BAI Equipment by virtue of the payments provided for herein or the attachment of any portion of BAI Equipment to the Customer’s premises otherwise deemed part of the Customer’s realty. Customer understands, acknowledges and agrees that BAI Equipment is not and shall never be considered a fixture to Customer’s premises.

3.2.2    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) business days of notice of filing.  Failure to discharge any such lien is a material breach of this TOU, and may result in immediate termination.

3.2.3.   Recovery or Return of BAI Equipment. Upon termination of the Service(s), residential Customers shall within fifteen (15) calendar days provide reasonable access to Service Location for BAI to recover the BAI Equipment, or for Customer to return the BAI Equipment in accordance with the instructions in the termination notice. Given the larger scope of equipment traditionally used by commercial entities, commercial Customers shall within fifteen (15) calendar days make arrangements for BAI to recover the BAI Equipment, or for Customer to make arrangements to return the BAI Equipment in accordance with the instructions in the termination notice.  Generally, all Customers understand, acknowledge and agree that Customer shall be responsible for any loss or damage to BAI Equipment or the failure to return the BAI Equipment when instructed.

3.2.4.   Customer Failure to Recover or Return BAI Equipment. Failure to return BAI Equipment or allow BAI to recover BAI Equipment in a timely manner shall result in Customer becoming liable for the cost of all unrecovered BAI Equipment (“BAI Equipment Recovery Fee”). Customer understands, acknowledges and agrees that Customer will be liable for the then-market value (as reasonably adjusted for condition and length of service) for any and all leased BAI Equipment not returned and that BAI shall charge Customer’s credit card and/or direct-debit account information on file, or provide Customer with an itemized invoice for all such BAI Equipment, which shall be payable immediately upon receipt by Customer.’

3.2.5.   Removal from Service Location. Customer understands, acknowledges and agrees that it is his/her/its responsibility to ensure that BAI Equipment is not removed from the Service Location at any time. In the event that the BAI Equipment is removed in violation of this TOU, Customer hereby authorizes BAI to charge to Customer’s credit card and/or direct-debit account information on file the then-market value as reasonably adjusted for length of service and condition for any and all BAI Equipment removed from the Service Location.

3.2.6.   VoIP Equipment Requirements. Customer must supply certain facilities, such as installed inside wiring and jacks, and a powered electrical outlet. Customer is responsible for supplying and ensuring that the facilities Customer supplies are compatible with the Services and meet state, federal and other applicable standards.  Customer represents that Customer either owns Customer’s facilities or has the right to use the facilities in connection with the VoIP Service. BAI shall have no obligation to provide, maintain, support, or service Customer’s facilities. If Customer’s Internet connection is suspended or disabled for any reason, the VoIP Service will not be available until Customer reestablishes his/her Internet connection with BAI or whichever Internet provider Customer utilizes.

3.2.7.   Obligation to Maintain Power to BAI Equipment. Customer must provide electrical power and a continuous connection to the power grid to BAI Equipment at all times (including, without limitation, when Customer is not using the Service(s)), and Customer’s failure to provide such power and continuous connection may result in damage to the BAI Equipment, for which damage Customer will be solely responsible.

3.3.      BAI reserves the right to substitute, change or rearrange any BAI Equipment or BAI Network(s) used in delivering Services that does not affect the quality, cost or type of Services. BAI will manage the BAI Network(s) 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) pay to BAI any overdue MRC, Installation Fees or other Charges within ten (10) calendar days of receiving notice of non-payment from BAI; (ii) comply with these Terms and any other BAI Service Agreement (including the AUP) or Applicable Law; or (iii) cure certain breaches these Terms within thirty (30) calendar days of receiving notice of the breach from BAI; or (b) 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.

4.2.      In the event of a Customer Default, BAI may, in its sole discretion, immediately suspend or terminate the Services without liability.

5.     Termination; Early Termination

5.1.      Except as provided herein or in an Addendum or Statement of Work to a BAI Service Agreement, in the event Customer cancels all or a part of the Service(s) prior to the Commencement Date, BAI may charge Customer a cancellation fee equal to one (1) month’s MRC for the cancelled Services (“Cancellation Fee”), 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 or in an Addendum or Statement of Work to a BAI Service Agreement, if Customer terminates all or any part of the Services during the Service Term , or if BAI terminates all or any part of the Services as a result of Customer’s breach of this TOU, Applicable Law or any other BAI Service Agreement before the end of the Service Term, 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 remaining Service Term, plus any activation, installation costs, and all other fees or costs incurred by BAI that under the terms of the applicable BAI Service Agreement are chargeable to Customer in addition to the MRC, less amounts already paid by Customer with respect to such charges for the terminated Services.  Customer understands, acknowledges and agrees that BAI’s damages for a cancellation or early termination would be difficult to determine and the Cancellation Fee and Early Termination Fee 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 Fee or Early Termination Fee 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;  (ii) the new services are approved by BAI; and (iii) Customer compensates BAI for any unrecovered installation and capital costs, and other direct costs charged by third parties with respect to the cancelled or terminated Services.

5.4.      In the event Customer intends to cancel or terminate all or a part of the Service(s), Customer acknowledges and agrees to notify BAI via phone by calling 1-833-889-2626 during our regular business hours: 8:00 am – 5:00 pm PST, Monday through Friday or by sending written notice of such cancellation or termination to BAI delivered to 15301 Ventura Blvd., #D220, Sherman Oaks, CA 91403. Any such cancellation or termination will only be effective upon a confirmation communication from BAI to Customer.

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 own equipment nor facilities will pose a hazard to BAI’s Equipment, the BAI Network(s) or create a hazard to BAI’s personnel, customers or the public in general; (c) its use of the Service(s) 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; and (e) Customer shall be solely responsible for the security and confidentiality of Personal Information and any other Material that Customer (or any end-user that uses or has access to Customer’s Service(s)) transmits using the BAI Service(s).

7.     Indemnification.

7.1.      Customer shall indemnify, hold harmless, and defend BAI and its affiliates, and their respective shareholders, officers, directors, employees, agents, representatives, service providers and subcontractors from and against all liabilities, actions, losses, response to any government investigation or inquiry related to third-party claims, claims or damages and expenses whatsoever (including reasonable attorneys’ fees) (collectively, “Claims”) arising out of or in connection with (a) Customer’s or third parties’ improper use of the Service(s), resale, or sharing of the Services in violation of this TOU, other BAI Service Agreements or any Applicable Law; (b) claims that Customer’s use of the Service infringed on the patent, copyright, trademark or other intellectual property right of any third party; (c) 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 Equipment, Customer’s personal devices, other 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, penalties, charges and surcharges levied against BAI related to or associated with Customer’s claim for tax exempt status and that claim is not valid. The Parties understand, acknowledge and agree that 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 shareholders, officers, directors, employees, agents, representatives, service providers and subcontractors from and against Claims 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 the BAI Network; 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 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.

7.4.      In any legal proceeding brought to enforce or interpret this TOU (including arbitration), the prevailing Party shall have the right to recover from the other Party, in addition to any other relief, all costs and expenses, including, but not limited to, reasonable attorneys’ fees, collections fees and court costs, incurred by the prevailing Party.

8.     STATUTE OF LIMITATIONS AND LIMITED LIABILITY.

8.1.      Statute of Limitations.  Customer understands, acknowledges and agrees that any claim or cause of action brought by or on behalf of Customer with respect to any BAI Service Agreement, BAI Service(s) or BAI Network(s) must be commenced within one (1) year after the claim or cause of action arose.

8.2.      LIMITATION OF LIABILITY. CUSTOMER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCES INCLUDING NEGLIGENCE OR A MATERIAL BREACH OF THIS TOU OR OTHER BAI SERVICE AGREEMENTS WILL BAI AND ITS AFFILIATES, AND THEIR SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SERVICE PROVIDERS, SUPPLIERS, OR ANYONE ELSE INVOLVED IN PROVIDING THE BAI SERVICE(S) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF REVENUES, LOSS OF DATA, OR OTHER LOSSES INCURED BY CUSTOMER (OR ANY OTHER PERSON USING CUSTOMER’S ACCOUNT). CUSTOMER FURTHER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT IN NO EVENT WILL BAI BE LIABLE TO CUSTOMER FROM OR THROUGH THE CUSTOMER’S USE OF OR INABILITY TO USE THE BAI SERVICE(S), OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, LOSS OF DATA, ERRORS, DEFECTS, DELAYS IN OPERATIONS OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO FORCE MAJEURE EVENTS (AS DEFINED IN SECTION 12, HEREIN), COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE BAI NETWORK, BAI SERVICES, BAI’S RECORDS AND PROGRAMS, 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 BAI HAS BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

8.3.      CUSTOMER FUTHER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT, EXCEPT AS PROVIDED HEREIN, BAI’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO BAI SERVICE PERFORMANCE ISSUES RELATED TO OR CAUSED BY A MATERIAL FAILURE OF THE BAI NETWORKS, BAI EQUIPMENT OR THE BAI SERVICE(S) 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.

8.4.      THE TERMS OF THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS TOU AND ANY BAI SERVICE AGREEMENT. IN JURISDICTIONS WHICH RESTRICT LIMITATION OF LIABILITY PROVISIONS, BAI’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. THIS LIMITATION WILL APPLY REGARDLESS OF THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

9.     DISCLAIMER OF WARRANTIES/LIMITED WARRANTY. EXCEPT AS SPECIFICALLY SET FORTH IN THESE TERMS, BAI MAKES NO WARRANTIES, EXPRESS OR IMPLIED, THAT THE SERVICE(S) WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES BAI MAKE ANY WARRANTY AS TO THE RESULTS OBTAINED FROM THE USE OF THE BAI SERVICE(S). BAI DOES NOT GUARANTEE CONNECTIVITY AT ANY TIME, FOR ANY LENGTH OF TIME OR AT ANY PARTICULAR SPEED: IT WILL MAKE ITS BEST EFFORT. THE BAI SERVICE(S), BAI EQUIPMENT, AND CUSTOMER EQUIPMENT (INCLUDING ANY RELATED SOFTWARE AND HARDWARE) ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES WHATSOEVER (EITHER EXPRESS OR IMPLIED), INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF TITLE OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL ADVICE OR WRITTEN INFORMATION PROVIDED BY BAI, ITS SHAREHOLDERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS OR AUTHORIZED SERVICE PROVIDERS WILL CREATE A WARRANTY, NOR SHOULD YOU RELY ON ANY SUCH ADVICE OR INFORMATION.

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.

10.1.    Information that (a is independently developed by the Receiving Party; (b) is lawfully received by the Receiving Party free of any obligation to keep it confidential; or (c) becomes generally available to the public other than by breach of these Terms, shall not be considered Confidential Information.

10.2     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.

10.3.    In the event that the Receiving Party is required to disclose Confidential Information of the Disclosing Party pursuant to Applicable 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 Section 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. Disputes Resolution and Arbitration Requirements.    

11.1 Dispute Resolution. In the event of any dispute, claim, question, controversy, or disagreement regarding any aspect of your relationship with BAI or arising from or relating to this TOU, whether based in contract, tort, statute, regulation, ordinance or any other legal or equitable theory, (collectively, “Dispute“), the Parties shall first use their best efforts to resolve the Dispute.  The Parties understand, acknowledge and agree that the term “Dispute” shall be given the broadest possible meaning that will be enforced.

11.1.1. If a Dispute arises, the complaining Party shall provide written notice to the other Party in a document specifically titled “Notice of Dispute” or an email with the subject line titled “Notice of Dispute,” setting forth the precise nature of the Dispute.

11.1.2. BAI will send its Notice of Dispute to the Customer using the Customer’s contact information on the Customer’s account. A Notice of Dispute sent to BAI should be sent to the following:

Via Email: disputes@baiconnect.com

Via Postal Mail or Courier:  BAI Connect, 15301 Ventura Blvd #D220, Sherman Oaks, CA 91403, Attn: Legal Department

11.1.3. The Notice of Dispute must include enough information to allow BAI to identify the Customer account as well as to assess and attempt to resolve a Dispute, including the name of the Customer, the account number at issue, a description of the Dispute, the specific facts supporting the Dispute, the damages a Customer claims to have suffered and the relief the Customer is seeking. The Notice of Dispute requirement is designed to allow BAI to make a fair, fact-based offer of resolution or settlement if it chooses to do so. Customer cannot proceed to arbitration or to small claims court, if applicable, unless you provide this information.

11.1.4. Following BAI’s receipt of the Notice of Dispute, the Parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both Parties. If the Parties are unable to reach a resolution of the Dispute through direct Dispute resolution efforts within thirty (30) calendar days of the receipt of the Notice of Dispute, then the Dispute may subsequently be resolved by a court of law (limited to Disputes related to non-payment or late payment and breach of any obligation of confidentiality or Personal Information, or infringement of any intellectual property right for which an injunction may be sought) or alternatively a binding arbitration proceeding as set forth below.

11.2     BINDING ARBITRATION. THE PARTIES UNDERSTAND, ACKNOWLEDGE AND AGREE THAT ALL DISPUTES (EXCEPT FOR THE TYPES OF DISPUTES LISTED BELOW) THAT ARE NOT RESOLVED VIA THE INFORMAL DISPUTE RESOLUTION PROCESS AS DETAILED ABOVE, MUST BE SUBMITTED TO FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE TERMS OF THIS TOU. ANY SUCH ARBITRATION SHALL BE CONDUCTED IN LOS ANGELES COUNTY, CALIFORNIA AND THE AWARD SHALL BE DEEMED TO BE MADE IN CALIFORNIA.

           11.2.1.   CUSTOMERS UNDERSTAND, ACKNOWLEDGE AND AGREE THAT BINDING ARBITRATION MEANS THAT YOU WILL GIVE UP THE RIGHT TO SUE BAI IN COURT, INCLUDING WAIVING THE RIGHT TO A TRIAL BY JURY. 

• RESTRICTIONS: ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED.  CUSTOMERS UNDERSTAND, ACKOWLEDGE AND AGREE THAT THERE SHALL BE NO RIGHT OR AUTHORITY UNDER THESE TERMS FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR ON A COLLECTIVE OR CONSOLIDATED BASIS OR ON BASES INVOLVING DISPUTES BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER CUSTOMERS, OR OTHER PERSONS.

11.2.2. EXCLUSIONS FROM ARBITRATION.  NOTWITHSTANDING THE FOREGOING, THE PARTIES UNDERSTAND, ACKNOWLEDGE AND AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION: (A) DISPUTES RELATING TO THE SCOPE, VALIDITY, OR ENFORCEABILITY OF THIS BINDING ARBITRATION PROVISION; (B) DISPUTES RELATED TO NON-PAYMENT OR LATE PAYMENTS; (C) DISPUTES RELATED TO OR ARISING FROM A BREACH OF ANY OBLIGATION OF CONFIDENTIALITY OR PERSONAL INFORMATION, OR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT FOR WHICH AN INJUNCTION MAY BE SOUGHT; AND (D) ANY DISPUTE THAT ARISES BETWEEN BAI AND ANY STATE OR LOCAL REGULATORY AUTHORITY OR AGENCY THAT IS GOVERNED BY APPLICABLE LAW.

• THE ARBITRATION SHALL BE CONDUCTED BY ONE (1) ARBITRATOR UNDER THE THEN-CURRENT COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). THE POWER OF THE ARBITRATOR SHALL BE LIMITED TO THAT POSSESSED BY A SUPERIOR COURT JUDGE IN CALIFORNIA. THE ARBITRATOR IS PROHIBITED FROM AWARDING DAMAGES OR REMEDIES IN EXCESS OF THOSE ALLOWED BY THE PROVISIONS OF THIS TOU. THE DECISION AND AWARD OF THE ARBITRATOR SHALL BE FINAL, BINDING, AND NOT APPEALABLE, AND JUDGMENT ON THE AWARD SO RENDERED MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.

• Right to Sue in Small Claims Court. Notwithstanding anything in this Binding Arbitration Provision to the contrary, either Customer or BAI may elect to bring an individual action in small claims court if the claim is not aggregated with the claim of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court. You understand, acknowledge and agree that the AAA rules will govern the election to resolve a Dispute in small claims court.

• RIGHT TO OPT-OUT OF BINDING ARBITRATION. IF YOU DO NOT WISH TO ARBITRATE DISPUTES, YOU MUST DECLINE TO HAVE YOUR DISPUTES WITH BAI ARBITRATED BY NOTIFYING US IN WRITING WITHIN THIRTY (30) CALENDAR DAYS FROM THE EFFECTIVE DATE OF YOUR SERVICE(S), BY WRITING TO BAI Connect, 15301 Ventura Blvd #D220, Sherman Oaks, CA 91403, ATTN: LEGAL DEPARTMENT/ARBITRATION. YOUR WRITTEN NOTIFICATION TO BAI MUST INCLUDE YOUR NAME, EMAIL ADDRESS, TELEPHONE NUMBER, AND ACCOUNT NUMBER (IF YOU ARE AN EXISTING OR FORMER BAI CUSTOMER) AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH BAI THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS BINDING ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH BAI OR YOUR USE OF THE SERVICE(S). YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT ANY OPT-OUTS SUBMITTED AFTER THIS PERIOD ARE NOT EFFECTIVE. IF YOU HAVE PREVIOUSLY OPTED OUT OF ARBITRATION WITH BAI YOU DO NOT NEED TO DO SO AGAIN.

• Initiation of Arbitration Proceeding/Selection of The Party initiating the arbitration proceeding may open a case with the American Arbitration Association – Case Filing Services, 800-778-7879, www.adr.org under the Commercial Arbitration Rules of the AAA.

• Arbitration Procedures. Because the Service(s) provided to you by BAI may concern interstate commerce, the Federal Arbitration Act (“FAA”), not state arbitration law, shall govern the arbitrability of all Disputes.  No state statute pertaining to arbitration shall be applicable under this Binding Arbitration Provision unless such applicability is required by Applicable Law.  If there is a conflict between this Binding Arbitration Provision and the rules of the arbitration organization, this Binding Arbitration Provision shall govern.

• Evidence Standard. The Parties understand, acknowledge and agree that the Federal Rules of Evidence shall apply to any

• PAYMENT OF ARBITRATION FEES AND COSTS. EACH PARTY IS RESPONSIBLE FOR SHARING COSTS OF THE ARBITRATOR’S FEES AND EXPENSES EVENLY – THAT IS EACH PARTY PAYS HALF. FOR ADDITIONAL EXPENSES THAT A PARTY INCURS IN THE ARBITRATION PROCEEEDING, INCLUDING, BUT NOT LIMITED TO, FEES FOR ATTORNEYS OR EXPERT WITNESSES, THAT PARTY IS RESPONSIBLE FOR ITS OWN FEES AND EXPENSES. IF THE ARBITRATION PROCEEDING IS DECIDED IN A PARTY’S FAVOR, THE NON-PREVAILING PARTY SHALL REIMBURSE THE PREVAILING PARTY FOR THE FEES AND COSTS THE ARBITRATOR SHALL HAVE NO POWER OR AUTHORITY TO MAKE ANY AWARD THAT PROVIDES FOR PUNITIVE OR EXEMPLARY DAMAGES OR DAMAGES OTHERWISE LIMITED OR EXCLUDED IN THIS TOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS BINDING ARBITRATION PROVISION, BAI WILL PAY ALL FEES AND COSTS THAT IT IS REQUIRED TO PAY BY APPLICABLE LAW.

• Finality. The arbitrator’s decision shall be final and binding. The Parties understand, acknowledge and agree that award may be confirmed and enforced in any court of competent jurisdiction. The FAA shall govern all post-award proceedings.

• Severability. If any clause within this Binding Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Binding Arbitration Provision, and the remainder of this Binding Arbitration Provision will be given full force and effect. In the event this entire Binding Arbitration Provision is determined to be illegal or unenforceable for any reason, or if a Dispute is found by a competent court to be excluded from the scope of this Binding Arbitration Provision, Customer and BAI have each agreed to waive, to the fullest extent allowed by law, any trial by jury.

• Continuation. This Binding Arbitration Provision shall survive the termination or expiration of the Service(s), this TOU and any BAI Service Agreement for any reason.

12. Force Majeure. In the event that either Party’s performance is delayed, prevented, or inhibited because of (a) act of God; (b) act of local, county, state, federal or other government in its sovereign or contractual capacity; (c) act of public enemy or of war, terrorism, sabotage, civil disorder or riot; (d) flood or adverse weather conditions, including solar flare or sun outage; (e) pandemic, epidemic or quarantine; (f) labor strike, lock-out or other labor disturbance; (g) fire, explosion, power failure or blackout; (h) damage, degradation or destruction of equipment, transmission lines or the BAI Network(s); (i) unavailability of right-of-way, equipment or materials; (j) or any other cause beyond a Party’s reasonable control (collectively, a “Force Majeure Event”), 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, with written notice.

13. Survival. Sections 1 to 14 herein shall survive any termination or expiration of this TOU for any reason.

14.     General.

14.1     Entire Agreement. These Terms incorporate all fully executed BAI Service Agreement(s) for Services between the Parties, any attachments, policies and procedures, found on BAI’s website: www.baiconnect.com under “Legal”. These Terms and other BAI Service Agreements by and between the Parties comprises the entire understanding between the Parties and supersede any and all prior and contemporaneous negotiations, discussions, understandings, representations, memoranda, or agreements – oral or written  – between the Parties concerning the subject matter contained herein .

14.2     Amendments and Modifications. Except as otherwise permitted herein, any amendment, addendum or exhibit that modifies these Terms must be in writing and signed by the Parties .  Electronic copies of these Terms and any amendments or modification hereto, including electronic or facsimile signatures, will be accepted by the Parties as originals. BAI may also change, amend, alter, or modify these Terms at any time without advance notice to Customer. BAI will notify Customer of material changes by posting such changes on BAI’s website, by sending Customer a notice via email, by U.S. postal mail, or via a bill insert and will request Customer’s consent to any such changes via a click-through electronic signature process, to the extent required by Applicable Law. If Customer continues to use the BAI Service(s) after such notice has been made, Customer understands, acknowledges and agrees that such continued use shall be deemed to be Customer’s acceptance of any such changes.  The current version of this TOU, as the same may be modified by BAI from time to time, shall supersede any prior version of this TOU that may have been provided to Customer.

14.3.    Non-Waiver. The failure or delay of either Party to insist upon the performance of any provision or to exercise any right granted in this TOU or another BAI Service Agreement, shall not be construed as a waiver of such provision(s) or right(s), and the same provision or right shall continue in full force.   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. Further, no waiver of any provision of this TOU or another BAI Service Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar.

14.4.    Severability. In the event that any provision contained herein is deemed, for any reason, to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remainder of these Terms shall not be affected, and shall remain in full force and effect. Further, if any provision is invalidated, Customer and BAI hereby agree to enter negotiations for a replacement provision.

14.5.    Notices. All notices to Customer under these Terms will be in writing and will be made by one or more of the following methods: email, 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 shall be in writing and will be made by personal delivery, overnight delivery, or certified mail with a copy to BAI Connect, 15301 Ventura Blvd, Suite D220, Sherman Oaks, CA 91403, Attn: Legal Department.  BAI shall use commercially reasonable efforts to 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 14.5.  Delivery will be deemed to occur upon receipt.

14.6.    Headers and No Inferences. 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. The headers in these Terms are provided for convenience and reference only and shall not be considered in construing or interpretating these Terms.

14.7.    Assignment. Customer may not assign these Terms without the prior written consent of BAI, which shall not be unreasonably denied, withheld or delayed. Customer understands, acknowledges and agrees that BAI may assign these Terms without prior notice or consent from Customer. These Terms will bind and inure to the benefit of each Party’s permitted successors and assigns.

14.8.    Governing Law and Venue. 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 or action arising under these Terms, including any arbitration, shall have its venue in Los Angeles County, California.

14.9.    No Partnership or Joint Venture. Nothing in these Terms is intended to, or shall be construed, as creating an agency, joint venture, partnership, employment relationship or any third-party beneficiary(ies).  The Parties understand, acknowledge and agree that neither Party has any authority to bind the other Party in any respect.

14.10.  Consent to Multiple Communication Forms. Any Party utilizing any Service(s) provided by BAI, directly or indirectly, expressly consents to receive communications from BAI, its affiliates or subcontractors performing or providing Service(s) on behalf of BAI, via telephone, text or electronic mail. Subject to any limitations under applicable law, the Party acknowledges and agrees they may not opt out of any such non-promotional communications regarding their Service(s).

END OF TERMS OF SERVICE