These Terms of Service for Bespoke Communications, LLC. (this “Agreement”) is a legal
agreement between you (either an individual or an entity that you are representing, hereinafter
“Customer(s)”) and Bespoke Communications, LLC. and its suppliers and licensors (collectively
“BESPOKE”) for the BESPOKE Services (“Services”). Customers’ use of the Services
constitutes the agreement to the terms of this Agreement and acknowledges that BESPOKE
would not agree to provide the Services without that assent. The Services include new products,
product changes, upgrades, support and other services. Customer may only receive the Services
if the Customer is a Service subscriber in good standing with a valid, authorized payment method
on file with BESPOKE. Customer understands that it must obtain its own Internet connection in
order to use the Services. BESPOKE does not control your Internet access or the quality of your
Internet connection. BESPOKE IS NOT RESPONSIBLE FOR ANY THIRD PARTY
PRODUCTS OR SERVICES, OR FOR PROBLEMS IN THE SERVICES CAUSED BY THE
CUSTOMERS INTERNET CONNECTION OR THIRD PARTY PRODUCTS OR SERVICES
NOR WILL WE CONTACT ANY OF THESE PROVIDERS ON THE CUSTOMERS
BEHALF.
Unlimited calling applies only to calls made within the continental United States and Canada.
Calls to Alaska, Hawaii and all non-Canadian international calls are subject to additional
charges.
Additional BESPOKE Services can be purchased by users the Customer designates as
administrators through the BESPOKE user interface or by calling BESPOKE Customer Care.
Customer hereby authorizes those users with administrative privileges to (i) add these Services to
your BESPOKE account and (ii) commit to pay for these Services on a recurring monthly basis.
The Customer further authorizes BESPOKE to obtain payment of the then-current statement
balance from the Customer each month from the credit card account provided by the Customer.
The Customer may designate one or more users to be an account administrator with full
administrative control of the account from the BESPOKE user interface. The primary
administrator for the account is known as the “Superuser.” Upon creation of the account, the
individual assigned to be the Superuser is the individual who entered into an agreement with
BESPOKE through the online sign-up process or, if the agreement was not entered into online,
the individual’s whose name is identified on the BESPOKE quote sheet. The Superuser: (i) has
the ability to make any changes to the account (e.g., service additions, service deletions,
assignment of users, account cancellations, updates to credit cards, etc.); and (ii) is the authorized
individual on the account with respect to porting of your telephone numbers to a carrier other
than BESPOKE. The Superuser may assign one or more additional administrators on the account
and may re-assign “Superuser” status to another user. In the event that the Customer wishes to
re-assign the Superuser designation on the account and the Superuser is unable to make the
change, BESPOKE will require that the Customer submit an email from the Superuser’s email
address which is on file with BESPOKE or otherwise provide a written request via facsimile, on
the Customer’s letterhead and executed by an officer or owner of the company.
Administrators on the account have the ability to make changes to the account (e.g., service
additions, service deletions, assignment of users, updates to credit cards, etc.) but may not (i)
authorize an account cancellation, (ii) designate himself or herself as the Superuser, or (iii)
designate any other user as an administrator.
Should the Customer wish BESPOKE to provide information on the account with respect to a
customer service record or actual call log details (other than through the user interface), such
request may be made by the Superuser or any administrator on the account, but information
provided by BESPOKE will only be transmitted to the email address on file for the Superuser.
The Superuser or any other administrator may designate the “Company Contact” for the account.
The Company Contact is the individual who will receive all messages from BESPOKE
concerning matters of general relevance to the account (notices of updates to the account, billing
notices, maintenance alerts, etc.), which such notices are typically provided through electronic
mail. BESPOKE will initially assign the Superuser to be the Company Contact.
1. PAYMENT & SERVICES.
1.1 Automatic Monthly Billing.
The Services are provided on a monthly basis, with an automatic monthly renewal unless the
Customer provides BESPOKE with seventy-two (72) hours’ written notice of cancellation prior
to a scheduled billing date in accordance with the requirements of Section 2 below. The
Customer agrees to pay BESPOKE the recurring monthly service charges, set-up charges and
usage charges, if applicable, for the use of the Services plus any applicable taxes as set forth in
Section 1.4 below.
1.2 Payment Processing.
The Customer agrees to provide BESPOKE with a valid email address and a valid payment
method. The Customer must advise BESPOKE immediately if the email address changes and/or
payment method changes or expires. Failure to comply may result in the immediate termination
of Services. The Customer authorizes BESPOKE to automatically bill the credit card provided,
until cancellation of the Services in accordance with the requirements of Section 2 below. The
Customer agrees that BESPOKE may receive updated information about the account from the
financial institution issuing the Customer’s credit card. Under certain circumstances a Customer
may make payments by check. Customers will be charged a $15 per month processing fee and
will be required to maintain a non-interest bearing deposit, to be held on account, in the amount
of one month’s total billings. This deposit will be adjusted as service levels increase or decline
and will be refunded, less any past due balance, if the Customer cancels the account.
1.3 Fee Payments & Late Charges.
Except for usage based fees, all fees are due in advance on the first day of each billing period.
All usage based charges (including charges for calls to Alaska, Hawaii and international calls)
and any other non-recurring charges are due and payable in arrears on the first day of each
billing period following the month they were incurred. The Customer agrees to pay for all
equipment and set up fees at the time the Services are requested. The Customer agrees to pay for
the first month of Services upon the request for such Services. All payments, including payments
paid in advance, are completely non-refundable. Failure to pay in full will result in immediate
account suspension and BESPOKE shall have no liability for such suspension under any
circumstances. Accounts will be reactivated, at BESPOKE’s sole discretion, only when the
account balance is paid in full and a $25 reconnect fee is paid. BESPOKE will assess an
additional 1.5% (or the highest amount allowed by law, whichever is higher) per month late
charge if the payment is more than 30 days past due. BESPOKE may modify the Service fees at
any time, but will provide at least thirty (30) days advance notice by postal mail, email or by
publishing the new Service fees on the BESPOKE website. Should the Customer elect to make a
payment to BESPOKE by wire transfer, an additional charge of $10 shall apply. In the event that
the Customer present a check to BESPOKE for payment that is returned by the Customer’s bank
for non-sufficient funds, the Customer shall pay a processing fee of $25. The Customer is
responsible and liable for any fees, including attorney and collection fees, that BESPOKE may
incur in its efforts to collect any remaining balances due. The Customer also agrees to be billed
for and will pay any outstanding balances if the Services are cancelled.
During any period of suspension for non-payment, Services will be unavailable until the account
balance is paid in full. In the event that BESPOKE is providing data backup service, call
recording service, or any other service for which BESPOKE is collecting or providing data, to
the Customer during a period of suspension, those Services will be unable to backup new data or
record calls and the Customer will be unable to access any data or recordings that have
previously been stored by BESPOKE.
Notwithstanding the foregoing, in the event that the Customers’ use of the Services involves
usage-based charges that in BESPOKE’s opinion are substantial, BESPOKE may, in its sole
discretion, process charges against the Customer’s payment method prior to the regular monthly
billing cycle date and/or require a non-interest bearing deposit to secure the payment obligations
under this Agreement. In the event that BESPOKE requires a deposit, the deposit will be in an
amount determined by BESPOKE to be equal to the forecasted monthly usage charges. All
deposits must be paid via a wire transfer and will be held on account during the term of this
Agreement. This deposit may be adjusted as usage levels increase or decline and will be
refunded, less any past due balance, if the account is cancelled. BESPOKE may suspend the
Service at any time pending receipt of the required deposit.
1.4 Taxes.
Prices for the Services do not include any customs duties, sales, use, value added, excise, federal,
state, local, public utility, universal service or other similar taxes. All such taxes shall be paid by
the Customer and will be added to any amounts otherwise charged unless the Customer provides
BESPOKE with an appropriate exemption certificate. If any amounts paid for the Services are
refunded by BESPOKE, applicable taxes may not be refundable.
1.5 Invoice Discrepancies & Currency Conversion.
Bespoke will deliver all invoices through email only. The Customer agrees to notify BESPOKE
about any billing problems or discrepancies within 30 days after they first appear on the account
statement. If the Customer does not bring them to BESPOKE`s attention within 30 days, the
Customer agrees to waive its right to dispute such problems or discrepancies. All transactions are
charged in U.S. dollars (USD). All charges will be converted from USD to the Customer’s
currency by your credit card company when they process the transaction. BESPOKE cannot be
held responsible for any adverse currency fluctuations.
1.6 Release of Numbers.
The Customer acknowledges that in the event of any account termination or cancellation, all
telephone numbers associated with the account are released and may not be available upon
reactivation. Similarly, the cancellation of individual services which have associated telephone
numbers will result in the release of such numbers. The Customer acknowledges that it is its
responsibility to work with a third party provider to port out those numbers prior to termination
or cancellation of the account or termination of services.
1.7 Regulatory Recovery Fee.
A Regulatory Recovery Fee for every phone number assigned to the account will be charged
monthly to offset costs incurred by BESPOKE in complying with inquiries and obligations
imposed by federal, state and municipal regulatory bodies/governments and the related legal and
billing expenses. This fee is not a tax or charge required or assessed by any government. The
Regulatory Recovery Fee will apply to every phone number assigned, including toll free and
virtual numbers.
1.8 Unlimited Voice Services.
Unlimited voice services are provided solely for live dialog between two individuals. Unlimited
voice services may not be used for conference calling, call forwarding, monitoring services, data
transmissions, transmission of broadcasts, transmission of recorded material, or other
connections which do not consist of uninterrupted live dialog between two individuals. If
BESPOKE finds that the Customer is using an unlimited voice service offering for other than
live dialog between two individuals, BESPOKE may, at its option, terminate the service or
change the rate plan to one without unlimited usage components. BESPOKE will provide notice
that it intends to take any of the above actions, and the Customer may terminate the Agreement.
Notwithstanding the foregoing, the Customer shall be entitled to use BESPOKE conference
calling services such as three way calling and BESPOKE-provided conference calling bridges.
1.9 Metered Usage.
There are certain calls which will incur additional usage charges, such as calls to Alaska, Hawaii
and international calls. In addition, certain features such as call forwarding from auto attendants
to an outside number, calls to a queue, and each line on a conference bridge will all incur charges
at the then current rate established by BESPOKE. Metered usage is billed in full-minute
increments, and actual usage is rounded up to the next full increment at the end of each call for
billing purposes.
The Customer is responsible to secure all credentials used to access the Services, including
credentials used by telephones or softphones and credentials used by end users or administrators
to access the BESPOKE user interface, as well as the media access control (MAC) address of
telephones used by Customer. Customer acknowledges that placing telephones on a publicly
accessible internet protocol address or a publicly accessible network will subject the Customer to
a higher level of risk for fraudulent activity, as will use of the Services using a network that has
not been secured using best practice measures. Customer acknowledges that Customer bears the
risk of loss arising from any unauthorized or fraudulent usage of the Services. BESPOKE may,
but shall not be required, to take action to prevent or terminate any fraud or abuse in connection
with the Services.
1.10 Ancillary Services.
List and publish and caller name identification (i.e., caller ID with name) Services are provided
by BESPOKE are based on availability of such Services from BESPOKE’s underlying providers.
BESPOKE does not guarantee that such Services are available for all numbers in all serving
areas.
Each voicemail message recorded by BESPOKE shall be retained for a minimum of three (3)
months from the date the message was recorded. BESPOKE retains the right to purge all
voicemail messages after this minimum retention period.
Certain Services provided by BESPOKE shall be subject to separate end-user license agreements
(“EULA”). The terms of such EULAs shall be binding upon the parties to this Agreement. If any
such EULAs, or any provisions in such EULAs, are held to be unenforceable for any reason, the
terms of this Agreement shall apply with respect to the supply of that Service.
BESPOKE may introduce new ancillary Services to new and existing customers. Such ancillary
Services may sometimes be offered on a trial basis for a specified period of time during which no
fees shall apply to Customer. In some cases, the terms of the free trial may involve an automatic
re-enrollment at the end of the trial unless the Customer opts out of the trial and/or cancels the
service during the term of the free trial. In no event shall BESPOKE impose service fees on
Customer for ancillary services without providing customer the opportunity to opt-out of the trial
and/or to cancel the ancillary Service during a no-cost trial period.
1.11 Notices from BESPOKE.
BESPOKE may provide the Customer notice under this Agreement either by written
document, email, voice mail or by publishing the information on the BESPOKE website.
2. CANCELLATION OF SERVICES.
The Customer may cancel the Services at any time by providing BESPOKE with a notice of the
intent in writing to cancel at least 72 hours in advance by having the Superuser complete the
cancellation intent form provided by BESPOKE upon request from the Customer. YOU MAY
ONLY CANCEL SERVICES BY COMPLETING THIS FORM. BESPOKE WILL NOT
ACCEPT CANCELLATION VIA TELEPHONE, EMAIL, FAX OR OTHER METHODS.
FAILURE TO CANCEL SERVICES IN ACCORDANCE WITH THIS SECTION WILL
RESULT IN ONGOING SERVICE FEES. The Customer acknowledges that the cancellation
will be effective 72 hours after you provide notification to BESPOKE via the cancellation form.
BESPOKE will provide the Customer with email confirmation of both the request to cancel
Services and the actual cancellation of Services. If the Customer does not receive a confirmation
of the request to cancel after submitting the form or if the Customer does not receive a
confirmation of Service cancellation, the Customer must notify BESPOKE by sending an email
to billing@bspkcom.com or contacting BESPOKE Customer Care by telephone. The Customer
will not receive any refund or partial refund or any credits for any charges already billed to the
account. In the event the Customer signed up for a minimum commitment period, it will be
responsible for all charges for the entire minimum commitment period, all such fees will
immediately accelerate and the Customer authorizes BESPOKE to immediately bill all these fees
to the payment method provided. The Customer understands and agrees that cancellation of the
subscription is its sole right and remedy with respect to any dispute with BESPOKE. This
includes, but is not limited to, any dispute related to, or arising out of: (1) any term of this
Agreement or BESPOKE`s enforcement or application of this Agreement; (2) any policy or
practice of BESPOKE, including any BESPOKE Privacy Policy, or BESPOKE`s enforcement or
application of these policies; (3) the amount or type of fees, applicable taxes, billing methods, or
any change to the fees, applicable taxes, or billing methods.
In the event that you subscribe to ancillary services provided by BESPOKE, your election to
cancel telephone service with BESPOKE shall also cancel such ancillary Services. In the event
that BESPOKE is providing data backup, voicemail recording, call recording, or other such
ancillary service, all of the data, including all recordings, will be deleted on or after the date that
the Services are cancelled, without further notice. In the event that the Customer cancels an end
user account within the online Web user interface (located at https://www.bspkcom.com), the
user data associated with such account on the ancillary service will be automatically deleted.
The Customer may also cancel individual Services on the account at any time by contacting
BESPOKE Customer Care during normal business hours. The Customer acknowledges that the
cancellation will be effective on the date specified but in no event earlier than 72 hours after the
Customer provides the notification to BESPOKE. The Customer will not receive any refund or
partial refund or any credits for any charges already billed to the account. In the event the
Customer signed up for a minimum commitment period for the Services to be cancelled, the
Customer will be responsible for all charges for the entire minimum commitment period, all such
fees will immediately accelerate and the Customer authorizes BESPOKE to immediately bill all
these fees to the payment method provided.
3. BESPOKE’S RIGHT TO TERMINATE OR MODIFY SERVICES.
BESPOKE may modify the terms of this Agreement or the Services, including but not limited to
the price, content or nature of the Services, upon notice to the Customer. The Customers
continued use of the Services constitutes its agreement to those modified terms of this
Agreement and acknowledges that BESPOKE would not agree to provide the Services without
that assent. In the event BESPOKE modifies the Agreement or the Services, the Customer may
terminate the Services as provided in Section 2, above. BESPOKE may terminate this
Agreement and any Services at any time upon notice to the Customer, provided that in the event
the Customer has not violated any term of this Agreement, the Customer will be entitled to
receive the Services for any period for which was already paid, or a pro-rata refund at
BESPOKE`s sole discretion. This Agreement will automatically terminate if the Customer fails
to comply with any term. No refund will be provided in the event that the Customer has violated
any term of this Agreement. No notice shall be required from BESPOKE to effect such
termination. Upon any termination of this Agreement (whether by Customer or BESPOKE), the
Customer shall immediately discontinue use of the Services. The Customer’s obligation to pay
accrued charges and fees shall survive any termination of this Agreement.
In the event that BESPOKE terminates this Agreement, the Services, or any ancillary Services,
all of the data, including all recordings, will be deleted on or after the data that BESPOKE
cancels such services, without further notice.
4. SERVICE USE RESTRICTIONS.
4.1 Compliance with Laws.
The Customer agrees that it shall only use the Services in a manner that complies with all
applicable laws in the jurisdictions in which it uses the Services, including, but not limited to,
applicable restrictions concerning copyright and other intellectual property rights and restrictions
concerning call recording, call monitoring, call interception and/or direct marketing or
telemarketing. BESPOKE may provide the Customer with guidelines regarding compliance with
applicable regulation(s); however, the Customer is solely responsible for ensuring that its use of
the Services is in compliance with such regulations. The Customer may only use the Services for
its own use. The Customer may not use the Services in any way to provide, or as part of, any
commercial service or application or in any way interfere with the users, services or equipment
of the network. The Customer may not attempt to, in conjunction with any device, software
program or service, circumvent technological measures employed to control access to the
Service. In addition to any other remedies available in equity or law to BESPOKE, failure to
comply with any of the terms and conditions in this Section 4 (Service Use Restrictions) shall
result in immediate termination of the Services.
4.2 Fair Use.
Reasonable uses of the Services in connection with the terms of this Agreement are permitted by
BESPOKE. Certain uses that cause extreme network capacity issues and interference with the
network are prohibited. Any use of the Services or any other action that causes a disruption in the
network integrity of BESPOKE services or its vendors, whether directly or indirectly, is strictly
prohibited and could result in termination of the Services. Examples of such prohibited uses
include, but are not limited to, any autodialing, continuous or extensive call forwarding,
continuous connectivity, constant dialing, iterative dialing, fax broadcast, fax blasting,
telemarketing or any other activity that would be inconsistent with small business usage. The
Customer agrees that it will NOT use the Services in ways that violate laws, infringe the rights of
others, or interfere with the users, services, or equipment of the Services. The Customer agrees
and represent that it is purchasing the Services and/or the equipment for its own internal use
only, and shall not resell, transfer or make a charge for the Services or the equipment without the
advance express written permission of BESPOKE.
BESPOKE reserves the right to review usage of unlimited minute usage plans to ensure that the
Customer is not abusing such plans. The Customer agrees to use unlimited minute plans for
normal voice or fax calls and will not employ methods or devices to take advantage of unlimited
plans by using the voice or fax services excessively or for means not intended by BESPOKE.
BESPOKE may terminate service immediately if it determines, in its sole discretion, the
Customer is abusing the unlimited minute plan.
For purposes of this policy and the Service plan, “unlimited usage” means the combined number
of inbound and outbound voice minutes and fax pages, but excluding all advertising and
informational messages sent directly by BESPOKE, as determined by BESPOKE in its sole
discretion. BESPOKE reserves the right to at any time to enforce this policy in accordance with
its terms. The Customer agrees that its level of usage of BESPOKE’S unlimited service plans
will be comparable to that of the average small business customer utilizing such plans.
BESPOKE deems usage that substantially exceeds the average volume of its other unlimited
usage plan customers as abusive. The Customer agrees that BESPOKE has the right to terminate
Services or charge the Customer additional fees if its usage is considered abusive in the sole
discretion of BESPOKE.
If it is determined that the Customers usage is abusive, the Customer agrees to pay a per minute
or per page fee of use in excess of those levels AT THE THEN-CURRENT RATE
ESTABLISHED BY BESPOKE, which is currently $.04 per minute and/or $.04 per facsimile
page and, at BESPOKE’s sole option, the Customers services will be immediately terminated.
THIS OVERAGE FEE APPLIES TO ALL PLANS INCLUDING THE UNLIMITED PLANS.
5. PERSONAL INFORMATION AND PRIVACY.
BESPOKE utilizes the public Internet and third party networks to provide voice and data
services. Accordingly, BESPOKE cannot guarantee the security of the voice and data
communications. BESPOKE is committed to respecting privacy. If the Customer chooses to
provide personal information, it will only be used in the context of its relationship with
BESPOKE. BESPOKE will not sell, rent, or lease your personal information to others. Unless
required by law, subpoena, court order, warrant or other valid government request, BESPOKE
will only share the personal information provided with other BESPOKE entities and/or business
partners that are acting on BESPOKE’s behalf to perform the activities described herein and in
accordance with the BESPOKE Privacy Policy, located at www.bspkcom.com/privacy. Such
BESPOKE entities and/or national or international business partners are subject to BESPOKE’s
Privacy Policy with respect to the use of this data. Upon the appropriate request of a government
agency, law enforcement agency, court or as otherwise required by law, BESPOKE may disclose
personally identifiable information.
6. E-MAIL NOTIFICATION.
BESPOKE may need to inform the Customer of new services, updates, policy changes or
products; BESPOKE may send the Customer and its employees emails describing the latest
Services, how to access the Services and changes to the Services. The Customer agrees that as a
Service subscriber, BESPOKE may send such emails to the addresses provided. Because these
emails are necessary for to receive the Services, the Customer will receive these emails even if it
has opted out of receiving other email from BESPOKE. If the Customer does not want to receive
these emails, it may cancel the Service at any time as provided in this Agreement.
7. PORTED TELEPHONE NUMBERS ON SERVICE DISCONNECTION.
7.1 Single line Accounts.
The Customer may be able to take, or “port,” its current telephone number(s) to another service
provider. The Customer will remain responsible for all charges and fees until it notifies
BESPOKE of its election to cancel services in accordance with Section 2. Until it notifies
BESPOKE of its intention to cancel, the Service and this Agreement will not terminate. The
Customer will continue to be responsible for all charges and fees associated with the BESPOKE
Service. The Customer will not receive any refund or partial refund or any credits for any
charges already billed to its account.
7.2 Multiple-line Accounts.
If the Customer requests a new service provider port a number from BESPOKE and it has
multiple numbers assigned to the account and/or additional equipment on its account, the
Customer is required to inform BESPOKE of its intent to terminate the specific affected Services
on the account or BESPOKE will continue to bill for such Services. The Customer will continue
to be responsible for all the charges and fees associated with the remaining Services on its
BESPOKE account. The Customer will not receive any refund or partial refund or any credits for
any charges already billed to its account.
Telephone numbers assigned by BESPOKE for BESPOKE’s facsimile service cannot be ported
to a new service provider. BESPOKE will use commercially reasonable efforts to facilitate a port
of a facsimile number which was ported on the Customer’s behalf to BESPOKE by another
service provider and the Customer will be required to pay a porting fee to BESPOKE of $100 per
number.
7.3 Request for BESPOKE to Port numbers.
If the Customer requests that BESPOKE port a number from an existing service provider to
BESPOKE, BESPOKE will use commercially reasonable efforts to assist the Customer in
porting that number. The Customer acknowledges that service providers require verification of
identity, as well as authorization and other reasonable information in order to port any numbers
to BESPOKE. The Customer must correctly complete a letter of authorization, provide
BESPOKE with a copy of its most recent bill from such service provider, as well as provide
BESPOKE with any other information required by such service provider to port the number.
Failure to provide any information requested by BESPOKE or the third party service provider
will delay the porting of the number to BESPOKE. BESPOKE shall not be responsible for any
delay in the port of a number and will not provide credit for any such delays.
In some cases, BESPOKE may permit the Customer to submit documentation required to port
numbers using a web-enabled user interface. The Customer has the ability to obtain a printed
copy of all porting documentation at no cost to the Customer from the interface or by contacting
BESPOKE Customer Care. BESPOKE will provide copies of the forms by facsimile or email.
No additional software or hardware is required. The Customer may withdraw its consent to
submit the porting request electronically by contacting BESPOKE Customer Care prior to our
submitting the porting request to the BESPOKE partner. The Customer’s consent to electronic
submission applies only to the specific porting request you submit through web-enabled
interface.
8. DISCLAIMER OF WARRANTY & LIMITATION OF LIABILITY.
THE SERVICES ARE PROVIDED AS-IS WITHOUT WARRANTY OF ANY KIND. TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BESPOKE FURTHER
DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND NONINFRINGEMENT. THE CUSTOMER ASSUMES THE ENTIRE RISK ARISING
OUT OF THE USE OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT SHALL BESPOKE OR ITS SUPPLIERS BE LIABLE
FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE,
OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION,
COMPUTER FAILURE, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY
LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE
THE SERVICES EVEN IF BESPOKE HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY
DISPUTE WITH BESPOKE RELATED TO THIS AGREEMENT OR THE
SERVICES/CONTENT SHALL BE CANCELLATION OF THE SERVICES. IN THE EVENT
A COURT AWARDS DIRECT DAMAGES DESPITE THE FOREGOING, SUCH DAMAGES
SHALL NOT EXCEED THE LESSER OF $250.00 OR THE AMOUNT YOU PAID TO
BESPOKE WITHIN THE LAST SIX MONTHS. BECAUSE SOME
STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE
LIMITATION MAY NOT APPLY TO THE CUSTOMER. BESPOKE DOES NOT ENDORSE,
WARRANT OR GUARANTEE ANY CONTENT PROVIDED BY OR THROUGH
BESPOKE.
9. INDEMNIFICATION.
The Customer agrees to hold harmless, indemnify and defend BESPOKE, its officers, directors,
employees, and suppliers from and against any losses, damages, fines and expenses (including
attorneys’ fees and costs) arising out of or relating to any claim that it has violated any term of
this Agreement, including, without limitation, the requirements set forth in Section 4.1 of this
Agreement.
10. NO ASSIGNMENT.
This Agreement is personal to the Customer (or the company which you represent), and may not
be assigned without BESPOKE`s express written consent. If the Customer is agreeing on behalf
of a company, the Customer represents that it is authorized to bind the company under this
Agreement.
11. OTHER IMPORTANT PROVISIONS.
11.1 Dispute Resolution.
Purpose. If the Customer has a Dispute (as defined below) with BESPOKE that cannot be
resolved through an informal dispute resolution with BESPOKE, the Customer or BESPOKE
may elect to arbitrate that Dispute in accordance with the terms of this Dispute Resolution
provision rather than litigate the Dispute in court. Arbitration means the Customer will have a
fair hearing before a neutral arbitrator instead of in a court by a judge or jury.
Definitions. The term “Dispute” means any dispute, claim, or controversy between the Customer
and BESPOKE regarding any aspect of its relationship with BESPOKE, whether based in
contract, statute, regulation, ordinance, tort (including, but not limited to, fraud,
misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other
legal or equitable theory, and includes the validity, enforceability or scope of this Dispute
Resolution provision (with the exception of the enforceability of the class action waiver clause
provided in this paragraph). “Dispute” is to be given the broadest possible meaning that will be
enforced. As used in this Dispute Resolution provision, “BESPOKE” means Bespoke
Communications, LLC., and its parents, subsidiaries and affiliated companies and each of their
respective officers, directors, employees and agents.
Initiation of Arbitration Proceeding/Selection of Arbitrator. If the Customer or BESPOKE
elect to resolve your Dispute through arbitration pursuant to this Dispute Resolution provision,
the party initiating the arbitration proceeding may initiate the arbitration proceeding with
American Arbitration Association (“AAA”), 335 Madison Ave., Floor 10, New York, NY
10017-4605, 1-800-778-7879, www.adr.org under the Commercial Arbitration Rules of the
AAA.
Arbitration Procedures. Because the Service(s) provided to the Customer by BESPOKE
concerns interstate commerce, the Federal Arbitration Act (“FAA”), not state arbitration law,
shall govern the arbitrability of all Disputes. However, applicable federal law or the law of the
state where the Customer receive the service from BESPOKE may apply to and govern the
substance of any Disputes. Any state statutes pertaining to arbitration shall not be applicable
under this Dispute Resolution provision.
If there is a conflict between this Dispute Resolution provision and the rules of the arbitration
organization chosen, this Dispute Resolution provision shall govern. If the arbitration
organization that the Customer selects will not enforce this Dispute Resolution provision as
written, it cannot serve as the arbitration organization to resolve its dispute with BESPOKE. If
this situation arises, the parties shall agree on a substitute arbitration organization. If the parties
are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to
appoint an arbitration organization that will enforce this Dispute Resolution provision as written.
If there is a conflict between this Dispute Resolution provision and the rest of this Agreement,
this Dispute Resolution provision shall govern.
A single arbitrator will resolve the Dispute. The Customer should know that participating in
arbitration may result in limited discovery depending on the rules of the arbitration organization
that is chosen to resolve the Dispute. The arbitrator will honor claims of privilege recognized by
law and will take reasonable steps to protect customer account information and other confidential
or proprietary information.
The arbitrator will make any award in writing but need not provide a statement of reasons unless
requested by a party. An award rendered by the arbitrator may be entered in any court having
jurisdiction over the parties for purposes of enforcement.
If an award granted by the arbitrator exceeds $75,000, either party can appeal that award to a
three-arbitrator panel administered by the same arbitration organization by a written notice of
appeal filed within thirty (30) days from the date of entry of the written arbitration award. The
members of the three-arbitrator panel will be selected according to the rules of the arbitration
organization. The arbitration organization will then notify the other party that the award has been
appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120)
days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator
panel shall be final and binding, except for any appellate right which exists under the FAA.
Restrictions: THE CUSTOMER MUST CONTACT BESPOKE WITHIN THREE (3)
MONTHS OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING
RISE TO A DISPUTE, OR THE CUSTOMER WAIVES THE RIGHT TO PURSUE ANY
CLAIM BASED UPON SUCH EVENT, FACTS, OR DISPUTE.
ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE
SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR
LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES
INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON
BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL),
OTHER SUBSCRIBERS, OR OTHER PERSONS SIMILARLY SITUATED UNLESS THE
STATUTE UNDER WHICH THE CUSTOMER IS SUING PROVIDES OTHERWISE.
ALL PARTIES WAIVE ANY CLAIM TO INDIRECT, CONSEQUENTIAL, PUNITIVE,
EXEMPLARY, OR MULTIPLIED DAMAGES ARISING FROM OR OUT OF ANY
DISPUTE WITH BESPOKE UNLESS THE STATUTE UNDER WHICH THEY ARE SUING
PROVIDES OTHERWISE.
Location of Arbitration. The arbitration will take place in the City of San Diego, State of
California.
Payment of Arbitration Fees and Costs. THE PARTY INITIATING THE ARBITRATION
WILL ADVANCE ALL ARBITRATION FILING FEES AND ARBITRATOR’S COSTS AND
EXPENSES. EACH PARTY IS RESPONSIBLE FOR ALL ADDITIONAL COSTS SUCH
PARTY INCURS IN THE ARBITRATION, INCLUDING, BUT NOT LIMITED TO,
ATTORNEYS’ OR EXPERT WITNESSES. IF THE ARBITRATION PROCEEDING IS
DECIDED IN FAVOR OF THE PARTY INITIATING THE ARBITRATION, THE OTHER
PARTY SHALL REIMBURSE THE FEES AND COSTS ADVANCED ONLY UP TO THE
EXTENT AWARDABLE IN A JUDICIAL PROCEEDING. IF THE ARBITRATION
PROCEEDING IS NOT DETERMINED IN FAVOR OF THE PARTY INITIATING THE
ARBITRATION, THE OTHER PARTY SHALL NOT BE REQUIRED TO REIMBURSE THE
OTHER FOR ANY OF THE FEES AND COSTS ADVANCED BY BESPOKE. IF A PARTY
ELECTS TO APPEAL AN AWARD TO A THREE-ARBITRATOR PANEL, THE
PREVAILING PARTY IN THE APPEAL SHALL BE ENTITLED TO RECOVER ALL
REASONABLE ATTORNEYS’ FEES AND COSTS INCURRED IN THAT APPEAL.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ARBITRATION
PROVISION, BESPOKE WILL PAY ALL FEES AND COSTS THAT IT IS REQUIRED BY
LAW TO PAY.
Severability. If any clause within this Dispute Resolution provision (other than the class action
waiver clause identified above) is found to be illegal or unenforceable, that clause will be
severed from this Dispute Resolution provision, and the remainder of this Dispute Resolution
provision will be given full force and effect. If the class action waiver clause is found to be
illegal or unenforceable, the entire Dispute Resolution provision will be unenforceable, and the
dispute will be decided by a court.
In the event this entire Dispute Resolution provision is determined to be illegal or unenforceable
for any reason, or if a claim is brought in a Dispute that is found by a court to be excluded from
the scope of this Dispute Resolution provision, the Customer and BESPOKE have each agreed to
waive, to the fullest extent allowed by law, any trial by jury.
Exclusions from Arbitration. THE CUSTOMER AND BESPOKE AGREE THAT THE
FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION: (1) ANY DISPUTE OVER
THE VALIDITY OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS; AND (2) ANY
DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH
UNAUTHORIZED USE OR RECEIPT OF A SERVICE.
Continuation. This Dispute Resolution provision shall survive the termination of your customer
relationship with BESPOKE.
11.2 Complete Agreement.
This Agreement shall constitute the complete and exclusive agreement between us,
notwithstanding any variance with any purchase order or other written instrument submitted by
the Customer, whether formally rejected by BESPOKE or not. The acceptance of any purchase
order is expressly made conditional on its consent to the terms set forth herein and any additional
terms in its purchase order or similar document shall be null and void. The terms and conditions
contained in this Agreement may not be modified by the Customer except in a writing duly
signed by the Customer and an authorized representative of BESPOKE. If any provision of this
Agreement is held to be unenforceable for any reason, such provision shall be reformed only to
the extent necessary to make it enforceable, and such decision shall not affect the enforceability
of such provision under other circumstances, or of the remaining provisions hereof under all
circumstances. This Agreement will not be governed by the United Nations Convention of
Contracts for the International Sale of Goods, the application of which is hereby expressly
excluded. BESPOKE is not liable for editorial, pictorial, or typographical errors in this
communication.
11.3 Equipment.
The Customer may be required to purchase telecom equipment in order to utilize the Services.
Procuring and maintaining that equipment is its sole responsibility. BESPOKE may, at the
Customers request, facilitate the provision of equipment from a third party supplier or resell
certain equipment. While BESPOKE suggests and resell some equipment brands and facilitate
the Customers purchase of some equipment as an accommodation, the original equipment
manufacturer and not BESPOKE shall be responsible for any equipment defects, if applicable.
BESPOKE will pass through all original equipment manufacturer warranties for the equipment
to the Customer. BESPOKE shall have no liability to the Customer of any nature regarding such
equipment. Please check the equipment provider’s website for warranty, return rules and other
terms and conditions applicable to such third party equipment supplier. Equipment may not be
returned to BESPOKE for any reason. ALL EQUIPMENT SALES ARE FINAL. Equipment
may be returned to the manufacturer solely in the event of a defect which arises within the
applicable warranty period, provided the Customer comply with the terms of this Section and the
manufacturer’s Return Materials Authorization (“RMA”) policy. Prior to returning the
equipment, the Customer must contact BESPOKE so that BESPOKE may determine whether a
defect exists and to receive an RMA number, which is required along with the return. The
Customer must ship the equipment to the manufacturer at the address provided by BESPOKE in
accordance with all RMA procedures. The Customer has 10 days after receipt of an RMA to ship
the equipment back to the manufacturer at the address provided. The Customer must pay all
shipping fees. Once the manufacturer has received the equipment, the original equipment
manufacturer will deal with the equipment under its applicable warranty policy.
12. EMERGENCY SERVICES- 911 DIALING & NON-VOICE SYSTEMS.
12.1 Non-Availability of Traditional 911 or E911 Dialing Service.
The Customer acknowledges and understands that the Service does NOT support traditional 911
or E911 access to emergency services. BESPOKE does offer a limited 911-type service and that
service is different in a number of important ways (some, but not necessarily all, of which are
described in this Agreement) from traditional 911 service. The Customer agrees to inform any
household residents, guests and other third persons who may be present at the physical location
where The Customer utilizes the Service of the non-availability of traditional 911 or E911
dialing from its BESPOKE Service and equipment.
12.2 Description of 911-Type Dialing Capabilities – Activation Required.
BESPOKE does offer a 911-type dialing service in certain areas within the U.S. (but may not
offer such service in certain areas of the U.S. or non-U.S. locations) that is different in a number
of important ways from traditional 911 services. Unless The Customer makes changes within the
BESPOKE online web user interface (located at https://www.bspkcom.com), when The
Customer dials 911, the call is routed from the BESPOKE network to the Public Safety
Answering Point (PSAP) or local emergency service personnel designated for the address that is
listed at the time of activation. The Customer acknowledges and understands that when it dial
911 from its equipment it is intended that The Customer will be routed to the general telephone
number for the PSAP or local emergency service provider (which may not be answered outside
business hours), and may not be routed to the 911 dispatcher(s) who are specifically designated
to receive incoming 911 calls using traditional 911 dialing. The Customer acknowledges and
understands that its 911 call may not be routed to a PSAP but instead may be routed to a central
call center where it will have to provide its location. BESPOKE relies on third parties for the
forwarding of information underlying such routing, and accordingly BESPOKE and its third
party provider(s) disclaim any and all liability or responsibility in the event such information or
routing is incorrect. As described herein, this 911-type dialing currently is NOT the same as
traditional 911 or E911 dialing, and at this time, does not necessarily include all of the
capabilities of traditional 911 dialing. Neither BESPOKE nor its officers or employees may be
held liable for any claim, damage, or loss, and The Customer hereby waive any and all such
claims or causes of action, arising from or relating to 911 dialing. The Customer agrees to
indemnify and hold harmless BESPOKE and its third party provider from any claim or action
arising out of misroutes of 911 calls, including but not limited to its failure to follow correct
activation procedures for 911 calling or its provision to BESPOKE of incorrect information in
connection therewith.
As described above, all calls dialed by handset extensions included in your account with
BESPOKE will be routed from the BESPOKE network to the PSAP or local emergency service
personnel designated for the address that The Customer listed at the time of activation. In the
event that the equipment is used in multiple locations, or in the event that one or more items of
equipment are used in multiple locations, end users designated as administrators on the account
may, at The Customer’s option, create additional service locations and associate its equipment to
specific locations for the purposes of routing calls to the local PSAPs for such locations.
Individual end users may assign and re-assign their current location on an as-needed basis. Those
updates can be made within the BESPOKE online web user interface (located at
https://www.bspkcom.com). It is The Customer’s sole responsibility to make these changes and
to ensure that all household residents, guests and other third persons who may be present at the
physical location(s) where it uses the Service are aware of this option.
12.3 Service Outage.
12.3.1 Power Failure or Disruption.
The Customer acknowledges and understands that 911 dialing does not function in the event of a
power failure or disruption. Should there be an interruption in the power supply, the Service and
911 dialing will not function until power is restored. A power failure or disruption may require
The Customer to reset or reconfigure equipment prior to utilizing the Service or 911 dialing.
12.3.2 Broadband Service / ISP Outage or Termination / Suspension or Termination by
BESPOKE.
The Customer acknowledges and understands that service outages or suspension or termination
of service by its broadband provider and/or ISP or by BESPOKE will prevent ALL Service
including 911 dialing.
12.3.3 Service Outage Due to Suspension of Your Account.
The Customer acknowledges and understands that service outages due to suspension of its
account as a result of billing issues will prevent ALL Service, including 911 dialing.
12.3.4 Other Service Outages.
The Customer acknowledges and understands that if there is a service outage for ANY reason,
such outage will prevent ALL Service, including 911 dialing. Such outages may occur for a
variety of reasons, including, but not limited to those reasons described elsewhere in this
Agreement.
12.3.5 Limitation of Liability and Indemnification.
The Customer acknowledges and understands that BESPOKE’s liability is limited for any
Service outage and/or inability to dial 911 from The Customers line or to access emergency
service personnel, as set forth in this document. The Customer agrees to defend, indemnify, and
hold harmless BESPOKE, its officers, directors, employees, affiliates and agents and any other
service provider who furnishes services to The Customer in connection with this Agreement or
the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses
(including, without limitation, reasonable attorneys’ fees) by, or on behalf of, The Customer or
any third party or user of its Service relating to the absence, failure or outage of the Service,
including 911 dialing and/or inability of The Customer or any third person or party or user of its
Service to be able to dial 911 or to access emergency service personnel.
12.4 Failure to Designate the Correct Physical Address When Activating 911 Dialing.
Failure to provide the current and correct physical address(es) and location(s) of The Customer’s
equipment will result in any 911 communications the Customer may make being routed to the
incorrect local emergency service provider. This must be the actual physical street address where
the equipment is located, not a post office box, mail drop or similar address.
12.5 Requires Notification if You Change Your Number or Add or Port New Numbers.
The Customer acknowledges and understands that 911 dialing does not function if it changes its
phone number or (for such newly added or ported numbers) if The Customer adds or ports new
numbers to its account, unless and until The Customer has successfully notified BESPOKE of
the correct address for it changed, newly added or newly ported number.
12.6 Requires Notification if You Move or Change Location.
The Customer acknowledges and understands that 911 dialing does not function properly or at all
if The Customer moves or otherwise changes the physical location of its equipment to a different
street address, unless and until The Customer has successfully notified BESPOKE of such
change in location and the correct address or made appropriate updates on the BESPOKE online
web user interface (located at https://www.bspkcom.com). Failure to provide the current and
correct physical address(es) and location(s) of The Customer’s equipment will result in any 911
dialing The Customer may make being routed to the incorrect local emergency service provider.
12.7 Possibility of Network Congestion and/or Reduced Speed for
Routing or Answering 911.
Due to the technical constraints on the manner in which it is possible to provide the 911 dialing
feature for the Services at this time, The Customer acknowledges and understands that there is a
greater possibility of network congestion and/or reduced speed in the routing of a 911
communication made utilizing its equipment as compared to traditional 911 dialing over
traditional public telephone networks. The Customer acknowledges and understands that 911
dialing from its equipment will be routed to the general telephone number for the local
emergency service provider (which may not be answered outside business hours), and will not be
routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls at
such local provider’s facilities when such calls are routed using traditional 911 dialing. The
Customer acknowledges and understands that there may be a greater possibility that the general
telephone number for the local emergency service provider will produce a busy signal or will
take longer to answer, as compared to those 911 calls routed to the 911 dispatcher(s) who are
specifically designated to receive incoming 911 calls using traditional 911 dialing. The Customer
acknowledges and accepts that BESPOKE relies on third parties for the forwarding of
information underlying such routing, and accordingly BESPOKE and its third party provider(s)
disclaim any and all liability or responsibility in the event such information or routing is
incorrect. BESPOKE or its officers or employees, may not be held liable for any claim, damage,
or loss, and The Customer hereby waives any and all such claims or causes of action, arising
from or relating to 911 dialing unless it is proven that the act or omission proximately causing
the claim, damage, or loss constitutes gross negligence, recklessness, or intentional misconduct
on the part of BESPOKE.
12.8 Automated Number Identification.
At this time in the technical development of BESPOKE 911 dialing, it may or may not be
possible for the Public Safety Answering Point (PSAP) and the local emergency personnel to
identify The Customer’s phone number when it dials 911. BESPOKE’s system is configured in
most instances to send the automated number identification information; however, one or more
telephone companies, not BESPOKE, route the traffic to the PSAP and the PSAP itself must be
able to receive the information and pass it along properly, and PSAPs are not yet always
technically capable of doing so. The Customer acknowledges and understands that PSAP and
emergency personnel may or may not be able to identify its phone number in order to call The
Customer back if the call is unable to be completed, is dropped or disconnected, or if The
Customer is unable to speak to tell them its phone number and/or if the Service is not operational
for any reason, including without limitation those listed elsewhere in this Agreement.
12.9 Automated Location Identification.
At this time in the technical development of BESPOKE 911 Dialing, it is not possible to transmit
identification of the address that The Customer has listed to the Public Safety Answering Point
(PSAP) and local emergency personnel for The Customer’s area when it dial 911. The Customer
acknowledges and understands that it will need to state the nature of the emergency promptly
and clearly, including the location, as PSAP and emergency personnel will NOT have this
information. The Customer acknowledges and understands that PSAP and emergency personnel
will not be able to find the location if the call is unable to be completed, is dropped or
disconnected, if The Customer is unable to speak to tell them the location and/or if the Service is
not operational for any reason, including without limitation those listed elsewhere in this
Agreement.
12.10 Alternative 911 Arrangements.
The Customer acknowledges that BESPOKE does not offer primary line or lifeline services. The
Customer should always have an alternative means of accessing traditional E911 services.
The Customer acknowledges that the equipment and Services do not support 911 emergency
dialing or other emergency functions. The Customer agrees to notify any user of the Services,
who may place calls using the phone services, of the 911 limitations. BESPOKE advises The
Customer to maintain an alternative means of accessing traditional 911 services such as
traditional telephones and cellular phones.
12.11 Non-Voice Systems.
The Customer acknowledges that the Services are not set up to function without dialing systems
including home security systems, medical monitoring equipment, satellite television systems and
some facsimile systems. The Customer has no claim against BESPOKE for interruption or
disruption of such systems by the Services.
12.12 Force Majeure.
BESPOKE is not responsible or liable to The Customer for its failure to perform any of its
obligations contributed to by causes or circumstances beyond its reasonable control including,
without limitation, Internet outages, communications and cable outages, failure of third party
services or products that interface or interact with the Services, labor strikes, lockouts, supply
shortages, earthquake, fire, flood, war, act of God, criminal acts (e.g. computer hacking that
circumvents reasonable security measures), bankruptcy of merchants or licensees, or any acts of
governmental bodies or authorities.
12.13 ELECTRONIC RECORDING
Customer acknowledges that there are federal and state laws governing the electronic recording of telephone conversations and that
Bespoke is not liable for any illegal use of the Services. It is Customer’s responsibility to determine and comply in full with its own
compliance obligations. No Services or products offered by Bespoke are represented or warranted to comply with electronic recording
laws. Customer agrees that Bespoke may, in its sole discretion, record any call between Customer and Bespoke Business for Bespoke
Business quality control purposes.
13. CONSENT TO USE OF ELECTRONIC SIGNATURES AND RECORDS
As a convenience and courtesy to The Customer, BESPOKE provides access to its Services
online which may require The Customer to enter into agreements or receive notices
electronically. Accordingly, The Customer acknowledges and agrees that by clicking “I Agree”
or “I Accept” anywhere on a BESPOKE website:
13.1 The Customer agrees to conduct electronically the particular transaction into which The
Customer thereby enters including, without limitation, entering into this Agreement;
13.2 The Customer has read and understand the electronic copy of electronic contracts, notices
and records, including, without limitation, this Agreement, and any policies and any amendments
hereto or thereto;
13.3 The Customer agrees to, and intends to be bound by, the terms of the particular transaction
into which you thereby enter;
13.4 The Customer is capable of printing or storing a copy of electronic records of transactions
into which The Customer enters including, without limitation, this Agreement and any
amendments hereto; and,
13.5 The Customer agrees to receive electronically information about the Services and other
electronic records into which The Customer thereby enter including, without limitation, this
Agreement
14. VENUE/GOVERNING LAW
This Agreement will be governed by and construed in accordance with the laws of the State of
California without regard to conflicts-of-laws principles. By using the Services, The Customer
hereby agrees that the exclusive jurisdiction for any and all disputes regarding these Terms shall
lie in the federal, state, and local courts of San Diego, California.
Bespoke Service Level Agreement
This Service Level Agreement (SLA) is incorporated into and made a part of the Service Agreement and Master Services Agreement (MSA) between Customer and Bespoke Communications, LLC (Bespoke).
Services - The Service Level Agreement (SLA) is effective on the activation date of services when billing begins. The goals associated with service Availability, SLA’s set forth below are measured using monthly averages of the Bespoke Network.
Availability - The Service Availability Goal for Bespoke Service is 99.999%. Service availability is based on “Bespoke Downtime”, which exists when Bespoke applications or servers are unable to transmit and provide services. In the event Bespoke does not meet this service availability Service Level, subject to the restrictions and exclusions in Section 3 below, Customer’s exclusive remedy shall be to receive a service credit off of the MRC (monthly recurring charge) associated with the affected Service based on the SLA stated here:
SLA Service Level Credit
98% - 99.899% 5%
96% - 97.999% 10%
94% - 95.999% 15%
92% - 93.999% 20%
Components Included. Products and services provided directly by Bespoke. This SLA does not cover customer provided equipment (CPE) customer premises equipment, and any other carrier networks and or equipment not provided and controlled by Bespoke.
IN NO EVENT WILL BESPOKE PROVIDE SERVICE CREDITS FOR SERVICES NOT PROVIDED BY Bespoke. Bespoke does not provide service credits for outages caused by Internet Outages unless Bespoke is the billing provider of the Internet service.
Internet outages caused by other Internet providers may render Bespoke Voice and Video services inoperable and it is the customer’s sole responsibility to work with their providers to repair, upgrade or replace any internet service that is deemed unacceptable by Bespoke due to excess latency, consistency and reliability as stated in the MSA. Service credits will not be provided for other carriers outages.
Maintenance - “Normal Maintenance” refers to upgrades of hardware or software or upgrades to increase capacity. Normal Maintenance may temporarily degrade the quality of the Service, including possible outages. Such effects related to Normal Maintenance will not give rise to service credits under this SLA. Normal Maintenance will be undertaken only as follows: (a) between the hours of 11 PM and 6:00 AM Pacific Time. “Urgent Maintenance” refers to efforts to correct network conditions that are likely to cause a material Service outage and that require immediate action. Urgent Maintenance may degrade that quality of the Services, including possible outages. Bespoke will provide notice via email to the customer contact on file with Bespoke to Customer when Normal or Urgent Maintenance is necessary.
Limitations - Notwithstanding anything in this Service Schedule to the contrary, Customer will not be entitled to a service credit for an outage that is the direct result of any network failure associated with the local loop, the internet, or any other facilities that are not owned, operated or controlled or billed by Bespoke.
Customer Termination Rights - Customer may terminate the Affected Services without early termination charges if, in any single calendar month: (a) Network Downtime exists for 24 hours in the aggregate; or (b) any single event entitling Customer to credits under Network Availability exists for a period of at least 24 consecutive hours. Such termination must be conducted by written notice to Bespoke, and no later than five business days following the end of the relevant calendar month; otherwise, Customer waives its rights to termination based on subsection (a) or (b) herein. After receipt of written notice of termination such termination will be effective after services have been transferred to another service provider.
Exclusive Remedy - Given that damages from service interruptions or other failures to provide the Service under this SLA would be impossible to ascertain, and that the remedies stated in this SLA have been determined as a reasonable estimate of compensation, and not as a penalty, Customer’s remedy shall be fixed and liquidated as set forth in this SLA. In no event will the total remedies available to Customer exceed those set forth in this SLA. The provisions of this SLA state Customer’s sole and exclusive remedies for Service interruptions or Service deficiencies of any kind whatsoever.
Remedies - Each Service outage is treated as a discrete event; therefore, the credits specified in the SLA shall be given for each separate Service outage. The number of minutes of separate Service outages will be accumulated to determine the percentage of credit. In order to request SLA credits, Customer must contact Bespoke Customer Service. In order to receive service credits set forth herein, such requests shall be made no later than five business days following the last day of the month in which the relevant SLA was not met. Failure to comply with these service credit request requirements will forfeit your right to receive a credit. A credit will be applied only to the month in which the event giving rise to the credit occurred. The maximum SLA credits issued in any one calendar month will not exceed: 20% of the MRCs of the Affected Service with respect to the SLA. “Affected Service” refers to the particular Product that fails to meet the relevant SLA. In no event will the total credit, in the aggregate for all credits issued in one month exceed the equivalent of 20% of the relevant MRCs for the Affected Service.
Service Credit Exceptions - An outage shall not be deemed to have occurred in the event that the service is unavailable or impaired due to any of the following:
a. Interruption on a service for which the Start of Service Date has not yet commenced;
b. Interruptions caused by the negligence, error or omission of Customer or others authorized by Customer to access, use or modify the Service or equipment used by Customer;
c. Interruptions due to power failure at customer premises, or the failure or poor performance of CPE;
d. Interruptions during any period in which Bespoke or its agents are not afforded access to the premises where the access lines associated with the Service are terminated, provided such access is reasonably necessary to prevent a degradation or to restore Service;
e. Interruptions during any period that Bespoke has communicated to Customer in any manner that the Service will be unavailable for Normal Maintenance or grooming purposes, or Customer has released the Service to Bespoke for the installation of a customer Service Order;
f. Interruptions during any period that Customer elects not to release the Service for testing and/or repair and continues to use it on an impaired basis;
g. Interruptions resulting from Force Majeure;
h. Interruptions resulting from Customer’s use of Service in an unauthorized or unlawful manner;
i. Interruptions resulting from a Bespoke disconnect for Cause;
j. Interruptions resulting from incorrect, incomplete or inaccurate Service orders from Customer (Including without limitation Customer’s over subscription of Circuits);
k. Interruptions due to improper or inaccurate network specifications provide by customer;
l. Interruptions resulting from a failure of a carrier other than Bespoke providing Local Access Services including CPE;
m. Bespoke inability to deliver Service by the Customer Commit Due;
n. Interruptions caused by circumstances beyond the reasonable control of Bespoke or its agents.
Bespoke Communications Phone Lease Program Agreement
Bespoke Communications (Bespoke) Phone Lease Program Agreement (“Lease Agreement”) is available to those customers who have entered into a written contract for the purchase of Bespoke VoIP Services (hereafter, the Bespoke VoIP Purchase Agreement) with a minimum Initial Term of at least twenty-four (24) months and a Renewal Term of at least one (1) month. For clarification, the Lease Agreement must be in conjunction with the Bespoke VoIP Purchase Agreement and for an Initial Term of at least twenty-four (24) months, and the customer must enter into the Lease Agreement at the same time as the Start Date of the Bespoke VoIP Purchase Agreement. This Phone Lease Program is offered and available to United States Residents only.
This Lease Agreement, when entered into, will form part of the Bespoke VoIP Purchase Agreement, the terms of which are incorporated herein by reference, including, without limitation, all defined terms.
Any capitalized terms not defined herein will have the same meaning as in the Bespoke VoIP Purchase Agreement, as applicable.
Lease Services
This Lease Agreement is for the Lease of certain telephone hardware (each a “Lease Device”) from Bespoke (collectively, the “Lease Services”). Bespoke charges a recurring monthly fee for each Lease Device (collectively, the “Lease Fees”). As a part of your recurring bill from Bespoke, you agree to pay the Lease Fees for all Lease Devices, using the same payment method and payment period as your payments for Bespoke VoIP Services, as defined in your Bespoke VoIP Purchase Agreement. Bespoke will pro-rate the Lease Fees for any equipment that is leased, for the initial period from the start of the Lease period until the end of then-current billing period for the VoIP Services, and the start of the Lease will begin on the date a Lease Device is recorded as delivered by a designated courier (the “Lease Start Date”).
The Lease Services with respect to a Lease Device shall commence on the Lease Start Date and terminate upon the earliest to occur of (a) either Party delivers written notice of termination of this Agreement to the other Party at least thirty (30) days prior to the applicable termination date (with such termination date being at the end of the Bespoke VoIP Services billing period in which the end of such 30 day period occurs, (b) the termination of the Bespoke VoIP Purchase Agreement. Notwithstanding the above, at any time within thirty (30) days after the Lease Start Date, you may terminate the Lease Services with respect to a Lease Device immediately upon written notice from you to Bespoke , without paying any Lease Fees for such Lease Device.
Upon any termination of the Lease Agreement or Lease Services, you agree to return or purchase a Lease Device (including all accessories and materials that were provided with the primary hardware device) consistent with Bespoke Communications written instructions and in accordance with the Return or Purchase Rights section of this Lease Agreement, and that Lease Device will no longer be considered a Lease Device upon the completion of a return or purchase. If you do not return a Lease Device (subject to Bespoke Communications inspection and acceptance of the returned Lease Device in its reasonable discretion) within thirty (30) following the termination of the Lease Services for such Lease Device, you will be deemed to have purchased that device at a purchase price equal to (1) during the first 12 months after you received the Lease Device, 100% of the Lease Device’s then-current Bespoke list price shown on Bespoke Communications website, or (2) after such 12 month period, 80% of such list price, and you agree to pay the applicable purchase price.
If you wish to upgrade a Lease Device, the replacement of the current Lease Device shall be deemed a termination of the Lease Services with respect to the current Lease Device and be subject to the termination provisions hereof, including the return or purchase provisions for the Lease Device set forth in the Return or Purchase Rights section of this Lease Agreement; provided that the Lease Services for the current Lease Device shall be deemed to terminate, and the Lease Services of the replacement Lease Device shall commence, on the date the replacement Lease Device is recorded as delivered by a designated courier.
The Lease Fees for the Lease Services do not include additional services you may select, taxes, fees, international usage, and other additional services. Sales tax varies by jurisdiction of purchase or Lease and may be calculated based on full retail price or Bespoke cost price, as determined by the tax law in the jurisdiction of purchase or Lease.
Lease Devices Ownership; Damage and Loss
Bespoke is and will remain the owner of each Lease Device unless title is conveyed to you in writing following Bespoke Communications confirmation to you of its receipt of your payment in full of the purchase price for the Lease Device. You will not grant any third party any right to use, possess, or control any Lease Device, sublease any Lease Device, attempt to dispose of any Lease Device, grant any interest or right in a Lease Device to any third party, or otherwise do anything that undermines Bespoke Communications ownership of each Lease Device. Bespoke may, without notifying you, assign Bespoke Communications interest in any Lease Device, and in that event, Bespoke Communications assignee will have all of Bespoke Communications rights in the Lease Device under this Agreement, but none of Bespoke Communications obligations. You agree not to assert against Bespoke Communications assignee any claims, offsets, or defenses you may have against Bespoke . Upon Bespoke Communications request, you will execute and deliver to Bespoke any documents or forms for protecting Bespoke Communications ownership and interest in each Lease Device, including finance statements under the Uniform Commercial Code.
Upon receipt of each Lease Device, you will examine each Lease Device, and unless you notify Bespoke within ten business days of your receipt of a Lease Device to any issue with a Lease Device, each Lease Device is deemed to be in good working order at the time of receipt. In the event that any Lease Device delivered to you is stolen, lost, damaged, or transferred to any third party, regardless of the circumstances or cause, you will immediately notify Bespoke in writing and pay Bespoke a purchase price equal to (1) during the first 12 months after you received the Lease Device, 100% of the Lease Device’s then-current Bespoke list price shown on Bespoke Communications web site, or (2) after such 12 month period, 80% of such list price. This obligation does not apply to any damage to a Lease Device that is covered by the manufacturer’s warranty.
Lease Device Usage
You will ensure that: (a) each Lease Device will only be used in a careful and proper manner and in accordance with the written instructions provided with it by Bespoke , as may be updated by Bespoke or the manufacturer of the Lease Device from time to time; (b) each Lease Device will be used with due care and will not be defaced, modified, or used or operated in any manner or for any purpose in violation of any federal, state, or local law or regulation; (c) each Lease Device must remain within the United States and may not be exported or re-exported to any country contrary to U.S. export laws; (d) any regulatory or certification markers affixed to a Lease Device may not be removed, defaced, or otherwise obstructed; and (e) each Lease Device will only be repaired subject to Bespoke Communications express written authorization and in accordance with Bespoke Communications instructions and requirements.
Return or Purchase Rights
Returns
When you return a Lease Device, you agree to return a fully functional and non-damaged Lease Device to Bespoke , at your risk and cost, and you agree that, to the extent that you do not do so, you will be obligated to pay Bespoke a thirty-five dollar ($35.00) re-stocking fee. You agree to pay all shipping and handling charges related to any Lease Device and related hardware returns.
All Lease Devices and related hardware must be fully functional, include all components, manuals, peripheral devices, and all other accessories that were originally shipped with the Lease Device. At our discretion, we may decline your return or charge you an additional fee of thirty dollars ($30) for each missing item or for each item that we determine is damaged or not in good working condition.
Before returning any Lease Device or hardware that has data in its memory, please transfer all files you wish to retain to another file source. Once the hardware is returned, your files cannot be recovered and you release us of any liability for any lost, damaged, or destroyed files, data, or other information.
Purchases
You may purchase a Lease Device at any time following 24 months from the date you received the Lease Device. You agree to purchase the Lease Device for $1.00. If you wish to purchase the device prior to 24 months, that device can be purchased at a purchase price equal to (1) 100% of the Lease Device’s then-current Bespoke list price shown on Bespoke Communications website, or (2) after such 12 month period, 80% of such list price, and you agree to pay the applicable purchase price.
Other Remedies
If you are obligated to return or purchase a Lease Device subject to this Return or Purchase Rights section of this Lease Agreement, and you have not returned a Lease Device or you have defaulted in any obligation to pay the purchase price due for a Lease Device to be purchased, Bespoke may, in addition to those remedies available at law, in equity, or as otherwise set forth in this Agreement, take possession of any or all Lease Devices without demand, notice, or legal process, wherever each Lease Device may be located, and you hereby waive any and all damages occasioned by that taking of possession.
Warranty Disclaimer
EACH LEASE DEVICE AND ANY TELEPHONE HARDWARE PURCHASED IN CONNECTION WITH THIS LEASE AGREEMENT IS PROVIDED “AS IS” AND “AS AVAILABLE” AND BESPOKE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY SIMILAR WARRANTY, WHETHER SAID WARRANTY ARISES UNDER PROVISIONS OF ANY LAW OF THE UNITED STATES OR ANY STATE THEREOF OR ANY COUNTRY. BESPOKE MAKES NO REPRESENTATIONS OR WARRANTIES THAT ANY LEASE DEVICE WILL BE DELIVERED TO YOU BY A PARTICULAR DATE OR IS FREE OF RIGHTFUL CLAIMS OF ANY THIRD PARTY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS (INCLUDING PATENT AND TRADE SECRET RIGHTS). THE ENTIRE RISK ASSOCIATED WITH THE USE OF ANY LEASE DEVICE SHALL BE BORNE SOLELY BY YOU.
SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT BESPOKE CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
General Terms
You authorize us to collect any payment owed by you hereunder from your payment method, as provided in your Bespoke VoIP Purchase Agreement. This Lease Agreement, which is subject to and incorporates by reference the Bespoke VoIP Purchase Agreement constitutes the complete, final, and exclusive embodiment of the entire agreement between you and the Company regarding the Lease Services. In signing the Agreement, the undersigned represents to Bespoke that the undersigned has full power and authority to perform all of its obligations hereunder. This Lease Agreement is the binding obligation of the undersigned, enforceable against the undersigned in accordance with its terms.
Bespoke may, in its discretion, update or change the terms and conditions of this Lease Agreement, and the version of this Lease Agreement applicable to each Lease Device, is the version of this Lease Agreement then in effect at the start of the Lease for that Lease Device, including the start of the Lease for an upgrade Lease Device. This Phone Lease/Lease Program is offered and available to United States residents only. Customer must agree to a Service Commitment Period for Bespoke VoIP Services with an Initial Term of at least 24 months to be eligible to participate in the Phone Lease/Lease Program.