Reseller Services Agreement

Last Updated on September 12, 2024

PLEASE READ THIS AGREEMENT CAREFULLY. ONCE ACCEPTED BY YOU, THIS AGREEMENT BECOMES A BINDING AND ENFORCEABLE LEGAL COMMITMENT BETWEEN YOU AND BANDWIDTH.  

Applicability and Changes to these Terms 

You accept and agree to be bound by the terms of this Agreement on behalf of your organization through (a) your creation of an Account, (b) your access to or use of the Services, or (c) your express acceptance of this Agreement.  You represent that you have the legal authority to bind your organization to this Agreement.  

We may update this Agreement from time to time by providing you with prior written notice at least thirty (30) days in advance of the effective date of any material changes.  The notice of any material update to this Agreement will be provided to you in accordance with Section 13.4 (Notice). Following such notice, your continued use of the Services on or after the date of the updated version of this Agreement constitutes your acceptance of the updated version, which supersedes all prior versions of the Agreement.  As stated above, your acceptance is a binding and enforceable legal commitment between you and Bandwidth.  If you do not agree to the updated version of this Agreement, you must immediately stop using the Services. 

This Agreement does not apply where your organization has entered into a separate written agreement with Bandwidth covering the use of the Services.

This Bandwidth Reseller Services Agreement (“Agreement”) is made effective as of the date you accept or otherwise agree to the terms of this Agreement (“Effective Date”), by and between you or the organization on whose behalf you are accepting or otherwise agreeing to the terms of this Agreement (“Reseller,” “you” or “your”), and Bandwidth Inc. with its principal place of business at 2230 Bandmate Way, Raleigh, NC 27607 (on behalf of itself and its Affiliates, “Bandwidth,” “we,” “us” or “our”). 

1. Scope

The terms of this Agreement cover your use and provision of the Services and address unique commercial considerations that apply to Bandwidth’s business as a provider of global enterprise cloud communications services and of a broad range of software application programming interfaces (APIs) for voice, messaging, and emergency services. This Agreement also incorporates any Supplemental Legal Terms and Product Terms that may apply to your use of the Services.  Definitions of capitalized terms are in Section 14 (Definitions).

With respect to the provision of Services in any particular geographic area in which Bandwidth Inc. is not licensed to provide the Services or otherwise decides not to provide the Services, we will provide Services through an Affiliate and you will execute an Order Form directly with our Affiliate, such Order Form to be subject to the terms of this Agreement.  The signing entity on the applicable Order Form responsible for delivering the Services under this Agreement is the Affiliate directly obligated to the terms of this Agreement. 

1.1 Affiliate Usage

Your Affiliate(s) may participate under this Agreement only upon approval by Bandwidth, including with regard to credit terms, by entering into an Order Form with Bandwidth or its Affiliate(s) to bind your Affiliate to this Agreement.

1.2 Territory

Reseller may participate only in the territory designated in an Order Form or, if none is specified, in any country where the Services are sold to you by Bandwidth.  Bandwidth and Reseller may elect to expand the territory, add Affiliates, and establish different terms and conditions (e.g., currency, taxes, entities, etc.) by mutual agreement, which may take the form of a participation agreement and/or Order Form subject to this Agreement.

2. Provision of the Services

2.1 Our Obligations

Bandwidth will (a) make all Services available to you pursuant to the terms of this Agreement and any applicable Order Form and (b) provide support for the Services as referenced in the applicable Order Form, if such level of support is other than Bandwidth’s standard level of support.

2.2 Modification to our Services

As certain Services evolve, Bandwidth may modify the Services (including support services); provided Bandwidth does not materially reduce overall functionality of the Services. In the unlikely event Bandwidth determines it must make a change that impairs the feature(s) or functionality of an existing Service(s), Bandwidth will use reasonable efforts to provide you with sixty (60) days’ advance notice.

2.3 Maintenance

Bandwidth will provide you with not less than seven (7) days’ prior written notice in the event of routine, planned maintenance of its Services.  For emergency maintenance, Bandwidth will provide as much notice as is practical under the circumstances.  Services may be interrupted during maintenance or an upgrade.  In all cases, Bandwidth will work with you to minimize disruptions to the Service.

3. Use of the Services

3.1 Account Creation and Information

To use the Services, you will be asked to create an Account with Bandwidth.  When creating your Account, you are responsible for (a) providing accurate, complete, and current information and  (b) keeping all requested information accurate, complete, and current after creating the Account.  You may only allow use of the Account to authorized persons you designate. You are responsible for monitoring and managing access to the Account and remain solely responsible for all acts, omissions, and activities conducted on or through your Account.  Bandwidth will not be liable for any loss or damage arising from unauthorized use of your Account.

3.2 Reseller Responsibilities

You will (a) provide Bandwidth with all assistance and information reasonably required to enable provisioning of the Services, including requiring your customers and End Users to provide accurate and up-to-date End User Information in accordance with applicable laws, regulations, licensing requirements, and local industry practice; (b) be solely responsible for all use of the Services under your Account and for all use of any service(s) you may offer to your customers and/or End Users that connects with the Services; (c) be responsible for the accuracy, quality, integrity and legality of Reseller Data made available to us by or for you through the use of the Services; (d) ensure that use of the Services is in accordance with our Acceptable Use Policy, our Supplemental Legal Terms, the applicable Order Forms and Product Terms, and any applicable laws and regulations; (e) where applicable, be responsible, at your sole cost, for providing all Equipment, including the installation, configuration, integrity, and technical and physical security thereof, and for connecting to Bandwidth’s network in a manner and at locations determined by Bandwidth; (f) reasonably cooperate with Bandwidth to perform interoperability testing between Bandwidth’s and your networks and systems, to be completed within a reasonable time not to exceed thirty (30) calendar days after your execution of the applicable Order Form, and notify us prior to implementing any Configuration Change so the Parties may work together in good faith to determine how best to proceed; and (g) use commercially reasonable efforts to prevent unauthorized access to or use of your Account, and notify us promptly of any unauthorized access or use.

3.3 Usage Restrictions

You will (a) not modify the Services in any manner unless agreed to by Bandwidth in writing; (b) not resell or otherwise make available to third parties the Services in any manner or for any purpose not permitted by this Agreement, except to make available the Services to End Users in connection with your service; and (c) not use the Services for your own internal use, other than as may be expressly permitted hereunder.  In certain instances, Bandwidth may provide you with access to non-production, evaluation Services for the exclusive purpose of testing or supporting your customers and/or End Users on issues related to your rights and obligations hereunder.  You agree not to resell such non-production, evaluation Services or use your access to such Services for your own internal or production use.

3.4 Lawful Requests and Inquiries

Reseller acknowledges that by providing Services to its customers and/or End Users, Reseller may be obligated to comply with a Lawful Request or Inquiry (LRI) where the Services are resold.  Where an LRI related to Services resold by Reseller is served on Bandwidth, Bandwidth may review and respond directly to the request, or may direct the requesting and/or serving party directly to Reseller.  When an LRI is received by Bandwidth related to Services resold by Reseller, Bandwidth may require that Reseller provide Bandwidth with all information necessary to respond to the LRI within twenty-four (24) hours from receipt of such request.  Reseller will reimburse Bandwidth for any reasonable costs or fees Bandwidth incurs responding to a lawfully-served LRI related to Services resold by Reseller.  Reseller understands that local law or regulation may not permit Reseller to receive a copy of an LRI.

3.5 Fraud

If you suspect or have knowledge of any fraudulent use of the Services, you will immediately stop using, and/or cause your customers and/or End Users to immediately stop using, the impacted Services and notify Bandwidth.  You acknowledge and agree that Bandwidth does not provide or warrant any fraud prevention. If we become aware of unusual Service-related volumes or patterns, we will make commercially reasonable efforts to notify you, provided our sole obligation to you with respect to any actual, alleged or suspected fraudulent use of the Services will be to reasonably cooperate with you upon your request, and at no expense to Bandwidth, to assist your efforts to stop any fraudulent use of the Services that you report to us.  Except to the extent that such fraud arises directly out of the gross negligence or willful misconduct of Bandwidth, you are and will remain solely responsible for all expenses and liabilities, including usage charges, relating to the fraudulent use of the Services by you, your customers, End Users, or any other person or entity directly or indirectly utilizing the Services. Notwithstanding the foregoing, and without creating an obligation hereunder, in all cases Bandwidth reserves the right to block any actual, alleged or suspected fraudulent use of the Services without prior notice.

4. Fees and Payment Terms

4.1 Payment of Fees

Except as otherwise set forth in the applicable Order Form(s) or in an invoice, you shall pay the Fees in accordance with the contracted rates specified on the Rate Sheet, or as set forth in your Account, as applicable, as well as any and all Costs, Taxes and Surcharges applicable to your use of the Services.  You acknowledge that Taxes and Surcharges are variable based on your usage and tax jurisdiction.  Payment obligations under this Agreement are non-cancelable, and all Fees paid under the Agreement are non-refundable, subject to the dispute process set forth in Section 4.4 (Payment Disputes and Back-Billing).  Credit is subject to Bandwidth’s approval, and Bandwidth may change your credit terms based on your payment history or change in financial circumstances such that you are unable to provide sufficient assurance of your ability to meet your obligations hereunder.

4.2 Taxes and Surcharges; Exemption

All Fees are exclusive of any applicable Taxes and Surcharges. If you are seeking exemption from any Taxes or Surcharges that may otherwise be assessed to you by Bandwidth because you are an exempt entity, you must provide to Bandwidth, as applicable, all acceptable and valid  tax-exempt  certification, direct pay permits, tax registration numbers, and/or other required documentation.  Bandwidth will only apply such exemptions on a prospective basis and has no obligation to consider any retroactive request for exemption.

4.3 Payment Terms

You will pay the Fees, Taxes, and Surcharges due under this Agreement in accordance with the following payment terms:

4.3.1 Prepayment

For some Services, Bandwidth may require Prepayment.  This requirement will be specified in the Order Form for the Service.  In the event Prepayment is required, you are responsible for ensuring the availability of sufficient funds in your Account at all times to cover the Fees, plus Taxes and Surcharges, incurred in relation to your Services.  If your Account(s) does not have sufficient funds, or your credit card declines a charge for the amount(s) due, Bandwidth may suspend the affected Services until full payment is made.

4.3.2 Postpayment

For Services not requiring Prepayment, invoices will be sent via email to the email address(es) you designate in your Account. Unless otherwise set forth in the applicable Order Form(s), (i) you agree to pay all undisputed Fees, Costs, Taxes, and Surcharges due for Services no later than the Invoice Due Date, and (ii) the amount(s) due are payable in United States dollars, unless otherwise set forth in the applicable Order Form, in each case without regard to when or whether you collect payment from your customer(s).  If you fail to pay the amount(s) due and to remedy such failure within fifteen (15) days of the Invoice Due Date, Bandwidth may suspend the Services without further notice to all of your Accounts until full payment is made.  Subject to Section 4.4 (Payment Dispute and Back-Billing), any payments that are not received by the Invoice Due Date will be subject to a late fee of one and one-half percent (1½%) per month, or the maximum rate allowable by law, whichever is less.  In certain instances, Bandwidth may enforce a credit limit on postpaid accounts, which credit limit will be agreed upon in writing by both parties.

4.4 Payment Dispute and Back-Billing

Bandwidth will not suspend your Account for non-payment of disputed amounts, provided you (a) raise any dispute in accordance with Section 13.4 (Notice) within thirty (30) days of receipt of the applicable invoice and include substantiating documentation for the dispute with your notice, (b) dispute the applicable charges reasonably and in good faith, (c) cooperate diligently to resolve the dispute, and (d) pay all undisputed charges by the Invoice Due Date.  In the absence of manifest error related to a disputed amount, Bandwidth’s records will prevail.  Bandwidth retains the right to invoice, including any amended or corrected invoices, for Services for a period of up to six (6) months after the date Bandwidth provided the Services.

5. Ownership and License Grant

5.1 What We Own

Except for any rights expressly granted to you under the Agreement, Bandwidth retains ownership of the Services and related documentation, the Electronic Tools, the Bandwidth APIs, and our Confidential Information. Any third-party intellectual property in any Electronic Tool is the property of the respective owner of such intellectual property.

5.2 What You Own

You retain ownership of your Confidential Information.

5.3 License Grant

Bandwidth grants you a non-exclusive, non-transferable (except to the extent this Agreement is assigned or transferred by you in accordance with its terms) license to use the Electronic Tools (and any documentation, user guides or other similar materials that Bandwidth may provide you) solely in connection with your internal use of the Service(s) during the Services Term. You agree that you will not, directly or indirectly: (a) use the Electronic Tools for unlawful purposes; (b) reverse engineer, decompile, or otherwise attempt to discover the source code or underlying ideas of the Electronic Tools; (c) modify or create derivative works based on the Electronic Tools; (d) commercially exploit or otherwise transfer rights in the Electronic Tools; (e) make available to or use the Electronic Tools for the benefit of a third party; and/or (f) copy, reproduce or transmit any Electronic Tools. Nothing in this Agreement gives you any right or license to any trademarks and/or trade names (whether registered or unregistered), logos, icons, slogans, banners, screen shots, trade dress, links or other brand features of Bandwidth, without Bandwidth’s prior written consent.

6. Confidentiality and Use of Personal Data

6.1 Use and Disclosure of Confidential Information

Recipient may not disclose Confidential Information of Discloser to any third party, except for its Permitted Recipients, and will use no less than reasonable care to protect Discloser’s Confidential Information and to avoid disclosure of Confidential Information.  Recipient: (a) will ensure its Permitted Recipients are subject to written confidentiality obligations no less restrictive than Recipient’s obligations under this Agreement and (b) is liable for any breach of this Section 6.1 by its Permitted Recipients.  

Information is not Confidential Information if: (1) the information is known by Recipient, at the time of disclosure, without confidentiality obligations; (2) the information is or becomes public knowledge through no fault of Recipient; or (3) the Recipient or a third party independently develops the information without the use of Discloser’s Confidential Information.  Recipient may disclose Discloser’s Confidential Information upon receipt of inquiries from law enforcement agencies and governmental authorities or other legal process, if required to do so by applicable law, regulation, subpoena, court order, or other actions of governmental agencies or entities.  

Upon reasonable written request of the Discloser, the Recipient will either return, delete or destroy all Confidential Information of Discloser and certify the same.  If Confidential Information is stored in routine back-up media and cannot be destroyed or returned to the Discloser without undue burden on the Recipient, the Recipient agrees that it will not access or use such information and will certify to the same.

6.2 Publicity and Confidentiality

You will keep confidential and will not disclose, market, or advertise to third parties the terms of this Agreement (including the fees paid hereunder) without Bandwidth’s written consent. Notwithstanding the foregoing, each Party may reference the other in the normal course of business, including during earnings calls, discussions with analysts, meetings with the press, customer briefings, general marketing activities and in regulatory filings.  You grant Bandwidth the right to use your name, mark, and logo on Bandwidth’s website and in Bandwidth’s marketing materials and to publicly identify you as Bandwidth’s reseller.

6.3 Trademarks

Bandwidth grants you a non-exclusive, non-transferable, royalty-free, revocable license during the Services Term to use Bandwidth Marks solely in connection with the marketing and distribution of the Services, as permitted in this Agreement, without the right to sublicense.  You agree to use the Bandwidth Marks only as stated in this Agreement, and in doing so, to follow the standards of quality established by Bandwidth and to adhere to the trademark usage guidelines found at https://www.bandwidth.com/legal/trademark-and-servicemark-guidelines/ as amended from time to time.  Any other use of Bandwidth Marks is not permitted.  Upon request, you will provide Bandwidth with representative samples of the use of Bandwidth Marks contained within any Reseller materials, web pages, marketing, advertising, and promotional materials.   All goodwill created by the use of Bandwidth Marks by Reseller is for the sole benefit of, and accrues to Bandwidth; Reseller acquires no right, title or interest in Bandwidth Marks or the goodwill associated with them, other than the right to use Bandwidth Marks in accordance with this Agreement.  You agree not to make any application to register any Bandwidth Mark or any domain names, trademarks, service marks, slogans or logos containing a Bandwidth Mark, or a reference that is confusingly similar to any Bandwidth trade name, trademark or service mark, whether during or after the Services Term.  

6.4 Privacy and Data Protection

Bandwidth will process Personal Data in connection with your use of the Services in accordance with our Data Protection Addendum.  To the extent your use of the Services requires, you are responsible for providing notice to, and where required by applicable law, obtaining consents from, individuals regarding the collection, processing, transfer, and storage of their data through your use of the Services, including but not limited to your obligations in Sections 3.1 (Account Creation and Information) and 3.2 (Reseller Responsibilities). 

7. Term, Termination and Suspension

7.1 Term

​​The Agreement begins on the Effective Date and continues until it is terminated pursuant to Section 7.2. The term of any Order Form will begin on the Order Form Effective Date and will continue through the term identified in the applicable Order Form, subject to earlier termination in accordance with the terms of this Agreement.  Unless otherwise set forth in the Order Form, the initial Services Term for each Service will be twelve (12) months, and the Services will automatically renew for successive terms of twelve (12) months each on the same terms and conditions applicable during the initial Services Term, unless otherwise agreed to by the Parties with at least thirty (30) days’ notice before the expiration of the applicable Services Term.

7.2 Termination

7.2.1 For Cause

Either Party may terminate this Agreement for cause upon written notice if (a) the other Party commits a material breach of this Agreement or the applicable Order Form, and such breach is not cured within thirty (30) days after written notice thereof from the terminating Party; or (b) an Insolvency Event occurs in respect of the other Party.

Bandwidth may, at its option and without limiting its other remedies, terminate and/or suspend Service(s) if Bandwidth determines in its sole discretion that the use of the Services by you, your customers, or your End Users threatens the security, integrity or availability of the Services, or otherwise violates the AUP.  If we terminate the Services pursuant to this Section 7.2.1, you remain responsible for all applicable Fees, Taxes, and Surcharges, and Bandwidth will have no liability for any damage, liabilities, losses, or other consequences you may incur in connection with such suspension or termination.

7.2.2 For Convenience

Either Party may terminate this Agreement or any Order Form(s) at any time on not less than ninety (90) days prior written notice.

7.3 Effect of Termination

The termination or suspension of an individual Order Form or any Services purchased from Bandwidth will not terminate or suspend any other Order Form or Service, or the remainder of the Agreement, unless specified in the notice of termination or suspension.  If the Agreement is terminated in whole, all outstanding Order Form(s) and Services will immediately terminate.  If this Agreement or any Order Form is terminated or suspended, you agree to pay all applicable Fees, Taxes, and Surcharges related to Services consumed by Reseller up to the effective date of termination or suspension, as well as the payment of any early termination fees associated with Reseller’s minimum spend and other commitments related to the applicable Order Form(s), with the exception that Reseller will not be responsible for any such early termination fees in the event Reseller exercises its right to terminate pursuant to Section 7.2.1 or Bandwidth exercises its right to terminate pursuant to Section 7.2.2.  Upon termination of this Agreement, the terms of this Section 7.3, and the terms of the following Sections, will survive:  Section 4 (Fees and Payment Terms), Section 5 (Ownership and License Grant), Section 6 (Confidentiality, and Use of Personal Data), Section 8 (Representations & Warranties; Disclaimers), Section 9 (Third-Party Claims), Section 10 (Limitation of Liability), Section 11 (Insurance), Section 12 (Governing Law and Venue), and Section 13 (General).

7.4 No Compensation

In the event of a termination or expiration of this Agreement, Bandwidth will have no obligation to Reseller (except as Bandwidth may otherwise be liable to you for its material breach of this Agreement), or to any Reseller employee, agent or representative for compensation or for damages of any kind, whether on account of the loss by Reseller or such employee of present or prospective sales, investments, compensation or goodwill.  Reseller hereby indemnifies and holds Bandwidth harmless from and against any and all claims, costs, damages and liabilities whatsoever asserted by any employee, agent or representative of Reseller under any applicable laws or regulations.

8. Representations & Warranties; Disclaimers

8.1 Bandwidth

Bandwidth represents that the Services will comply in all material respects with laws applicable to Bandwidth as the provider of the Services.  Our sole obligation, and your sole and exclusive remedy, in the event of any failure by us to comply with this Section 8.1 will be for us to, at our option, (a) remediate any material non-conformity or (b) refund to you the Fees you actually paid for the time period during which the affected Services do not comply with this Section 8.1.

8.2 Reseller

You represent and warrant that (a) your use and provision of the Services will comply with all applicable laws; (b) you will not use the Services for any illegal activity or in a manner that otherwise violates Bandwidth’s Acceptable Use Policy; (c) you have provided, and will continue to provide, adequate notices and have obtained, and will continue to obtain, the necessary permissions and consents to provide Reseller Data to us for use pursuant to Section 3.2 (Reseller Responsibilities).

8.3 DISCLAIMER

EXCEPT AS OTHERWISE SET FORTH UNDER THIS AGREEMENT AND/OR ANY APPLICABLE SERVICE LEVEL AGREEMENT, THE SERVICE(S) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, UNINTERRUPTED OR ERROR-FREE, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, OR THAT THE SERVICE WILL MEET RESELLER’S REQUIREMENTS, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. BANDWIDTH ADDITIONALLY DISCLAIMS ALL WARRANTIES RELATED TO THIRD-PARTY PROVIDERS.  YOU ACKNOWLEDGE, UNDERSTAND AND AGREE THAT BANDWIDTH EXERCISES NO CONTROL OVER, AND DISCLAIMS ANY RESPONSIBILITY FOR, THE ACCURACY AND QUALITY OF ANY INFORMATION TRANSMITTED VIA THE INTERNET OR A TELECOMMUNICATIONS PROVIDER NETWORK BY OR ON BEHALF OF RESELLER WITH THE USE OF ANY ACCOUNT AND/OR THE SERVICE(S).  BETA OFFERINGS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTY OF ANY KIND, AND BANDWIDTH WILL HAVE NO LIABILITY AND NO OBLIGATION TO INDEMNIFY FOR ANY BETA OFFERING WHATSOEVER. 

9. Third-Party Claims

9.1 Reseller

Reseller will defend Bandwidth from and against any and all Claims by third parties against Bandwidth relating to any actions by Reseller, its customers and/or End Users, including, but not limited to, the use and provision of the Services.  Reseller will indemnify and hold harmless Bandwidth from any Damages awarded against Bandwidth or for any settlement amounts approved by Reseller for such Claims. 

9.2 Bandwidth

Bandwidth will defend Reseller Indemnified Parties from and against any IP Infringement Claim.  Bandwidth will indemnify and hold Reseller Indemnified Parties harmless from any Damages awarded against a Reseller Indemnified Party or for settlement amounts approved by us for a IP Infringement Claim.

Notwithstanding the foregoing, Bandwidth has no obligation under this Section 9.2 with respect to IP Infringement Claims (a) arising from your use of the Services in a manner other than what is contemplated, permitted, or prescribed by this Agreement; (b) arising out of our compliance with your specific requests, where such IP Infringement Claims would not have arisen but for such compliance; (c) arising from the combination with, addition to, operation or use of the Services with other applications, products or services where the Services would not by themselves be infringing; (d) arising solely out of the use of Third-Party Services resold to the Reseller and/or integrated into or with the Services pursuant to this Agreement; or (e) arising from Services for which there is no charge.

If any Service becomes, or is likely to become, the subject of a IP Infringement Claim, Bandwidth may at our option and expense:  (a) secure the right to continue using the Service; (b) replace or modify the Service to make it non-infringing; or (c) if we cannot reasonably accomplish the foregoing options, terminate this Agreement upon written notice without liability, or, if applicable, terminate the Services that are the subject of any IP Infringement Claim and refund you any unused pre-paid fees.  This Section 9 states Bandwidth’s sole liability to Reseller, and Reseller’s sole and exclusive remedy against Bandwidth, for any third-party claim under this Agreement.

9.3 Third-Party Claim Procedure

Sections 9.1 (Reseller) and 9.2 (Bandwidth) are conditioned on the Indemnified Party: (a) promptly notifying the Indemnifying Party in writing of any allegations or a legal proceeding, to the extent Indemnifying Party would be prejudiced by this failure; (b) tendering sole control of the indemnified portion of the legal proceeding to the Indemnifying Party; (c) providing Indemnifying Party with reasonable assistance for the defense or settlement (as applicable) of the legal proceeding; and (d) refraining from making admissions or statements about any legal proceeding without Indemnifying Party’s prior written consent.

10. Limitation of Liability

10.1. Liability Cap

To the maximum extent permitted by law, in no event will the total and aggregate liability of either Party for all Claims arising out of or related to this Agreement exceed the amounts received by Bandwidth during the twelve (12) months immediately preceding the first incident out of which the liability arose. The foregoing limitation will apply regardless of the form of the cause of action, whether in contract, tort (including, without limitation, negligence), statute, or otherwise, and regardless of the theory of liability.

10.2. No Cap on Liability

Neither Party’s liability is capped for damages resulting from (a) any amounts payable pursuant to a Party’s indemnification obligations under Section 9 (Third-Party Claims), (b) the unauthorized use or misuse of any Service in contravention of this Agreement by you, your customers and/or End Users, and/or (c) your breach of Section 4 (Fees and Payment Terms).

10.3. Limitation on Type of Damages

In no case will either Party (or its respective Affiliates or subcontractors) be liable to the other Party for any special, incidental, consequential, or indirect damages, or for exemplary or punitive damages, loss of goodwill or business profits, lost savings or business or service interruption, cost of procurement or substitute goods, or any damages for lost or damaged data, whether an action is in contract or tort and regardless of the theory of liability, even if a Party has been advised of the possibility of such damages or if a Party’s remedy otherwise fails of its essential purpose; nor will Bandwidth be liable for any damages caused by any Service for which there is no charge.  The foregoing disclaimer will not apply to the extent prohibited by law.

10.4. Specific Limitation on Emergency Services

10.4.1. Nature of Emergency Services

You acknowledge and agree that the Services are internet-based and therefore Emergency Services may differ from traditional wireline-based services. You understand and agree that specific terms describing how to purchase, activate and use Bandwidth’s Emergency Services are established in the Order Form(s), Supplemental Legal Terms, Product Terms, and any applicable attachments, all of which are fully incorporated herein by reference.

10.4.2. Your Obligations

You acknowledge and agree that you are responsible for ensuring (1) your customers and End Users are regularly informed of any terms specifying how Bandwidth’s Emergency Services should be used; (2) your End User Information remains accurate and complete throughout the term of the Emergency Services; (3) and all Subscriber Location Information and End User Location Information required for the activation of Emergency Services is provided to Bandwidth in a timely manner.

10.4.3. Limitations

THE PARTIES AGREE AND ACKNOWLEDGE THAT BANDWIDTH IS AN EMERGENCY SERVICE PROVIDER THAT BENEFITS FROM VARIOUS LIMITATIONS OF LIABILITY UNDER APPLICABLE LAWS. NOTHING HEREIN IS INTENDED TO LIMIT THE PROTECTIONS OF APPLICABLE LAW.

You acknowledge and agree that in no case will any Bandwidth Indemnified Party, its underlying carrier(s), nor any other third parties involved in the routing, handling, delivery or answering of Emergency Services or in responding to emergency calls, be held liable for any Damages arising out of the acts, omissions or failures of a third party to route, handle, deliver or answer an emergency call, or for any Damages arising out of your failure to fulfill your obligations under Section 10.4.2 (Your Obligations).  You hereby waive any and all Claims arising from or relating to the provision of all types of Emergency Services provided to you under this Agreement unless directly arising out of, or directly caused by, gross negligence and/or willful misconduct of Bandwidth. The limitations set forth in this Section 10.4.3 apply to all Claims regardless of whether they are based on breach of contract, breach of warranty, product liability, tort or any other theory of liability.  Notwithstanding the foregoing, nothing in this Section 10 or the Agreement shall be construed as limiting or restricting a Party’s liability for death or personal injury arising from that Party’s gross negligence, fraud or fraudulent misrepresentation, or any other liability that cannot be limited as a matter of public policy or law.

11. Insurance

In addition to any insurance requirements set forth in your applicable Supplemental Legal Terms, Reseller shall put in place, and at all times maintain during the Services Term and for two (2) years thereafter, at its own cost and expense, appropriate and sufficient commercial general liability insurance with a reputable insurance company to cover the activities of Reseller contemplated in this Agreement.  The premiums for such insurance policies are Reseller’s responsibility.  Upon request, Reseller will provide Bandwidth certificates of insurance for all insurance coverage.

12. Governing Law and Venue

This Agreement, and any disputes or Claims (including any non-contractual Claims) arising from it, will be exclusively governed by and construed under the governing law specified below, based on your primary place of business.  The United Nations Convention on the International Sale of Goods and any conflict of laws principles will not apply to this Agreement.  The courts located in the applicable venue below will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement.  Each Party hereby consents to the exclusive personal jurisdiction of such courts. 

Your Primary Place of Business	Governing Law	Jurisdiction and Venue
Any location not specified below	State of North Carolina, United States of America	Superior Court of North Carolina, Wake County; Federal Courts of the Eastern District of North Carolina
United States, Latin America or the Caribbean	State of North Carolina, United States of America	Superior Court of North Carolina, Wake County; Federal Courts of the Eastern District of North Carolina
Any country within the European Economic Area or its regions or territories, the United Kingdom Switzerland, Andorra, or Vatican City	England and Wales	Courts of London, England

13. General

13.1 Order of Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (a) the applicable Order Form, including any Product Terms referenced therein; (b) this Agreement; (c) the applicable Supplemental Legal Terms; (d) our Acceptable Use Policy; and (e) any other terms incorporated herein by reference.

13.2 International Trade Laws. Each Party will comply with export control, anti-corruption, and economic sanctions laws, regulations, and legal requirements in any applicable jurisdictions that apply directly or indirectly to the Services, including, without limitation, the United States.  The Parties agree that, as between Bandwidth and Reseller, Reseller will be the importer of record of the Services into the countries in which it sells, where applicable, and will be responsible for (a) compliance with all applicable laws, regulations and legal requirements; (b) paying all import duties or tariffs; and (c) obtaining any regulatory approvals and import licenses required by any applicable law.  You agree to obtain all applicable licenses or other authorizations required to export, re-export or transfer the Services.  Each Party represents that it (and, in the case of Reseller, its customers and End Users) is not on any Sanctions List.  Reseller will not export, re-export or transfer the Services to any entity on any Sanctions List without prior U.S. government or other required government authorization.  Reseller will (a) immediately discontinue use of the Services if Reseller is placed on any Sanctions List and (b) remove any of your customers’ or End Users’ access to the Services if such customer or End User becomes placed on any Sanctions List.

13.3 Change in Law.  If there is a change in any law, rule, regulation, or the interpretation thereof which affects this Agreement or the activities of either Party under this Agreement, and either Party reasonably believes in good faith that the change will have a substantial adverse effect on that Party’s rights or obligations under this Agreement, then that Party may, upon written notice, require the other Party to enter into good faith negotiations to renegotiate the terms of this Agreement. If the Parties are unable to reach an agreement concerning the modification of this Agreement within thirty (30) days after the date of the notice seeking renegotiation, then either Party may terminate this Agreement by written notice to the other Party.

13.4 Notice.  Notice to us under this Agreement must be in English and provided via email to: (a) [email protected] for all billing-related matters; (b) [email protected] for all operations-related matters; and (c) [email protected] for any notice of breach or termination, or any dispute other than a billing dispute.  Legal notice to you under this Agreement, and billing- and operations-related notices to you, will be provided via email to the email address(es) you designate in your Account. 

13.5 Relationship of the Parties, Subcontracting, and Assignment.  The Parties are independent contractors and nothing in this Agreement creates a partnership, employment, agency, or fiduciary relationship between the Parties. Each Party will be solely responsible for supervision, control, and payment of its own personnel.   Bandwidth may subcontract to third parties as long as subcontractors agree to protect Confidential Information and Bandwidth remains responsible to you for performance of its obligations under this Agreement.  Neither Party may assign this Agreement in whole or in part without the other Party’s express written consent, which shall not be unreasonably withheld.

13.6 Third Party Beneficiaries; Reseller Obligations to its Customers and End Users. The Parties do not intend this Agreement to confer any benefit, incur any obligation or duty under law or otherwise, direct or incidental, upon any third party, person or entity not a party to this Agreement, including Reseller’s customers and End Users, as applicable. For the avoidance of doubt, Bandwidth has no relationship with or obligation to any of Reseller’s customers or End Users or any other person or entity to which Reseller provides any services, none of whom is a third party beneficiary of this Agreement.  Reseller is solely responsible for all pricing, billing and collections, and/or compliance with any applicable laws or regulations related to any services Reseller provides to its customers and/or End Users or any other person or entity to which Reseller provides any services.  Reseller is solely responsible for providing technical support to its customers and for ensuring its End Users receive customary problem resolution and troubleshooting activities directly with Reseller and/or its customers to determine whether any condition affecting any Service(s) is attributable to Bandwidth’s network prior to reporting a Service outage pursuant to this Agreement. For the avoidance of doubt, Affiliates of Reseller who are authorized to use the Service(s) by Reseller have no independent claim under this Agreement.

13.7 Force Majeure. Except for payment obligations, neither Party will be responsible for failure to perform its obligations due to an event or circumstances beyond its reasonable control.

13.8 No Waiver. Failure by either Party to enforce any right under this Agreement will not waive that right.

13.9 Severability. If any portion of this Agreement is not enforceable, it will not affect any other terms of the Agreement.

13.10 Waiver of Right to Jury Trial.  To the fullest extent permitted, each Party waives any right it may have to a jury trial for any claim or cause of action arising out of or in relation to the Agreement.

13.11 Entire Agreement. This Agreement is the complete agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous communications, understandings or agreements (whether written or oral).  All previous representations, discussions and writings (including any confidentiality agreements) are merged in and superseded by the Agreement and the Parties disclaim any reliance on them.  This Agreement may be modified solely in writing signed by both Parties, except as permitted under the Agreement.  Any terms and conditions stated in a Reseller-issued purchase order or similar document shall have no force and effect with regard to this Agreement, even if Bandwidth accepts or does not otherwise reject such purchase order after the date you accept this Agreement. 

14. Definitions

14.1 Account means an account that enables you to access and use certain Bandwidth-enabled Electronic Tools in order to consume the Services, and may require the creation of a username and password or other means of access designated by Bandwidth.

14.2 Agreement means this Bandwidth Reseller Services Agreement, our Supplemental Legal Terms, the Product Terms, the DPA, all Order Forms entered into under this Agreement, and any other appendices, addendums, or policies incorporated herein by reference.

14.3 Affiliate means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a Party, where “control” means the direct or indirect power to direct the management and policies of an entity, whether through ownership of voting interests, by contract or otherwise.

14.4 Bandwidth API means any Bandwidth application programming interface.

14.5 Bandwidth Indemnified Parties means Bandwidth (including, for the avoidance of doubt, our Affiliates), our officers, directors, employees, and agents.

14.6 Bandwidth Marks means the trademarks owned by Bandwidth or a Bandwidth Affiliate.

14.7 Claim means a claim, action, demand, suit, complaint, or legal regulatory body, administrative or judicial proceeding filed against a Party.

14.8 Confidential Information means information disclosed by the Discloser to the Recipient during the term of the Agreement that (a) is marked confidential; (b) if disclosed verbally, is clearly described as confidential at the time of disclosure and is subsequently summarized in writing to the Recipient within fourteen (14) days and marked as confidential; or (c) is information which by its nature should reasonably understood to be confidential or proprietary information of the Discloser, whether disclosed in writing or verbally.  “Confidential Information” includes CPNI and the terms of this Agreement (including the fees paid hereunder).

14.9 Configuration Changes means upgrades, updates and/or enhancements Reseller makes to its networks and/or systems.

14.10 Costs means fees incurred by Bandwidth for the provision of Services to you that arise out of your use of the Services (e.g. administrative and hourly fees paid to vendors or consultants to retrieve information from data centers to respond to law enforcement or regulatory agency demands), which are not Fees or Surcharges.

14.11 Customer Proprietary Network Information (or, CPNI) means Confidential Information about your purchase and use of telecom-related Services and shall have the meaning set forth in 47 USC 222(h)(1).

14.12 Damages means any damages, costs, fines, fees and/or penalties imposed by a court of competent jurisdiction, including any attorneys’ fees and costs.

14.13 Discloser is a Party disclosing Confidential Information under this Agreement.

14.14 DPA means our Data Protection Addendum, available at https://www.bandwidth.com/legal/dpa and incorporated by reference. 

14.15 Electronic Tools means Bandwidth-enabled service ordering platforms, portals, management systems, APIs, and/or any other computer software that Bandwidth makes available to Reseller for use with the Services.

14.16 Emergency Services means the technical capability to deliver emergency calls to emergency response centers.  Emergency calls are generally placed by a caller who dials a lawfully-established and jurisdictionally-appropriate emergency short code number (e.g., 911, 112).

14.17 End User means (a) Reseller’s customer, if such customer is using a Service for its own purpose (i.e., not for resale), or (b) any other party using a Service for its own purpose (i.e., not for resale); and/or (c) where applicable, the Emergency Services caller.

14.18 End User Information means identifying information relating to the End User that Bandwidth may collect from Reseller in order to comply with local regulatory requirements or to provision the Services, which information may include, but is not limited to, End User’s name, ID number, place of residence or business (street, number, zip code, city, country), nationality, and identification card of the End User (in case of residential End User) or the appointed representative (in the case where End User is a legal entity), corresponding IP address, and business registration certificate where End User is a legal entity.

14.19 Equipment means any and all facilities, systems, equipment (including proxy servers), software, networks and IP connectivity (including, without limitation, connectivity to your End Users) used and/or required to be used in connection with the Services.

14.20 Fees mean amounts paid or to be paid by Reseller to Bandwidth for the Services.

14.21 Indemnifying Party means (a) Bandwidth when Reseller is the Indemnified Party; and (b) Reseller when Bandwidth is the Indemnified Party.

14.22 Invoice Due Date means fifteen (15) days immediately after the date of a Bandwidth invoice.

14.23 Insolvency Event means (a) the commencement of liquidation, dissolution, receivership, or bankruptcy proceedings, by or against a Party; (b) an adjudication of insolvency or an institution of any reorganization arrangement or readjustment of debt plan by or against a Party; or (c) the appointment of a receiver for all or substantially of a Party’s assets.

14.24 IP Infringement Claim means any claim brought by a third party against Reseller alleging that the Services provided under this Agreement infringe or misappropriate such third party’s intellectual property rights.

14.25 Lawful Request or Inquiry (LRI) means a lawfully-issued subpoena, surveillance order, regulatory order, court order, or similar action of a governmental agency or entity, or a request for information issued by a competent authority in any jurisdiction.

14.26 Location Information means, for each telephone number, the accurate and valid dispatchable emergency response location information for the assigned Subscriber or End User, which must include sufficient specificity to enable emergency responders to geographically locate the calling party and comply with any Multiline Telephone Systems (MLTS) requirements applicable to Reseller, Subscriber or End User (e.g., if the End User’s location is a multi-story building, Reseller must provide Bandwidth with the floor and suite number in addition to address information if applicable MLTS requirements so prescribe). 

14.27 Order Form means an ordering document that specifies mutually agreed-upon terms applicable to the Services, including rates and any minimum spend commitments and recurring charges.

14.28 Party means each contracting party to this Agreement; specifically, Reseller and Bandwidth.

14.29 Permitted Recipients means the Recipient’s employees, Affiliates, agents, and contractors who have a need to know the Discloser’s Confidential Information.

14.30 Personal Data has the meaning set forth in the DPA.

14.31 Prepayment means maintaining a credit balance amount determined by Bandwidth sufficient to actual or estimated Fees, including Taxes and Surcharges.

14.32 Product Terms means the Service-specific terms and conditions applicable to the Services you acquire, as set out at https://www.bandwidth.com/legal/terms-and-conditions/.

14.33 Rate Sheet means the document accompanying an Order Form that specifies the rates for the Service(s) listed on the applicable Order Form.

14.34 Recipient  is the Party receiving Confidential Information under this Agreement.

14.35 Records means written records regarding your use and distribution of the Services.

14.36 Reseller Data means any content, materials, data and information made available to us by or for you, in connection with your use of the Services under this Agreement.  “Reseller Data” includes End User Information. 

14.37 Reseller Indemnified Parties means you, your officers, directors, employees and agents.

14.38 Sanctions List means any government-denied, -prohibited, or -unverified sanctions, debarment or exclusion list.

14.39 Service(s) means any distinct service provided by Bandwidth that is ordered by you under an Order Form and described in further detail in the relevant Product Terms.  

14.40 Services Term means the period during which you are entitled by Bandwidth to use, receive access to, or consume a particular Service pursuant to an Order Form.

14.41 Subscriber means Reseller’s customer purchasing or otherwise obtaining Bandwidth’s Services from Reseller.  For clarity, “Subscriber” does not include Reseller’s employees and agents utilizing the Services provided by Bandwidth to Reseller at Reseller’s offices, premises and/or otherwise, if applicable.

14.42 Supplemental Legal Terms means any legal terms or requirements that (a) supplement the terms of the Agreement between Reseller and Bandwidth and (b) apply solely to the extent Reseller uses an identified Service.

14.43 Surcharges means any applicable communications service or telecommunication provider (e.g., carrier, aggregator) fees or surcharges associated with Reseller’s use of the Services. In addition to applicable regulatory surcharges, “Surcharges” may include any charges or fees assessed by a third party against Bandwidth associated with the provision of Services provided to Reseller.  Common examples include charges related to A2P Messaging, average call duration, short call duration, abandoned calls, and payphone calls.

14.44 Tax(es) means any form of taxation of whatever nature and imposed by whatever authority in any applicable jurisdiction – including levies, interest, duties, surcharges, penalties, or other similar exactions – arising from or relating to this Agreement or from Reseller’s use of Services, other than taxes based on Bandwidth’s net income, payroll, and property.

14.45 Third-Party Services means any distinct service ordered by you under an Order Form which is provided by a third party and resold by Bandwidth either alone or in combination with the Services and described in further detail in the relevant terms and conditions.