Standard Terms and Conditions of Service
These Standard Terms and Conditions of Service shall apply to any Sales Order Form (“SOF”) signed by a Customer and accepted by Tera Communications LLC, an Iowa Corporation, whose business address is 2407 SE Delaware Avenue #1141 Ankeny, IA 50021 ("Tera Communications") for the provision of certain telecommunications and related services.
As used in these Standard Terms and Conditions, Tera Communications and Customer may be individually referred to as a “Party” or collectively as the “Parties,” and the SOF, these Standard Terms and Conditions of Service, and any other addenda, exhibits, and documents incorporated by reference into the SOF are referred to collectively as the “Agreement.” Underlying telecommunication services are provided by Tera Communications.
1.0 Service Descriptions
The specific services (the “Services”) to be provided to Customer are indicated on each SOF. Such Services may be provided using a combination of regulated and non-regulated service components. Each SOF is a separate and distinct obligation for Services.
2.0 Definitions
2.1 Service Order Form: The document signed by an authorized representative of both parties itemizing the service purchased by Customer.
2.2 Services: Services means VoIP (Voice over Internet Protocol) branded as Freedom UC and provided by Tera Communications, internet access, data transmission, voice transmission, private line, or other communications services that Tera Communications agrees to provide to Customer pursuant to a Sales Order Form.
2.3 Taxes: All taxes arising in any jurisdiction, including without limitation all sales, use, excise, gross receipts, value added, access, bypass, franchise, telecommunications, Universal Service Fund fees, property taxes (for collocation customers), consumption or other taxes, fees, duties, charges or surcharges (however designated) which are imposed on or are based upon the provision, sale or use of the Services, including such taxes imposed directly on Tera Communications for which Tera Communications is permitted to bill Customer in connection with Tera Communications performance under the Agreement. Taxes do not include Tera Communications income taxes.
2.4 Tariffs: Tera Communications tariffs, price lists, and generally applicable terms and conditions are on file with the State or Federal Regulatory Authorities.
3.0 Terms of Service
3.1 Charges, Billing, and Payment: Charges and Term for the Services provided by Tera Communications under the Agreement are set forth in the pricing sections of the SOF. Charges stated on the SOF do not include Taxes. Customer billing is based on specific Services ordered. Tera Communications will bill customer monthly. Unless otherwise provided in the SOF, any recurring charges will be billed in advance and any usage charges will be billed in arrears. Payment of all charges and applicable Taxes is due on the due date set forth in Customer’s bill (the “Due Date”). After the initial Term of the Agreement has expired, Tera Communications reserves the right to change the monthly services upon 30 days written notice to Customer. Payments are past due if not received by Tera Communications by the Due Date. Any amounts past due shall be subject to a late payment charge accruing from the bill date at the rate of 1-1/2% per month until paid. In addition, in the event Customer fails to pay any bill by the Due Date, upon ten (10) days written notice Tera Communications may suspend all Services and may deny access privileges to Tera Communications (Freedom UC) portal. Tera Communications may exercise its right to suspend service and/or deny access privileges immediately and without further notice, except as may be required under any applicable Tariff or related regulatory notice requirements. Tera Communications shall have no obligation to restore the Services unless and until all overdue payments and any additional charges that may be imposed to restore service have been paid. Customer agrees to pay all costs incurred by Tera Communications in collecting any unpaid amounts, including, without limitation, reasonable attorneys’ fees. Customer further agrees that failure to pay all amounts by the Due Date is a material breach of the Agreement. If Customer’s preferred payment method is ACH debit, then Customer hereby authorizes Tera Communications to debit Customer’s bank account each month for the amount of any and all monthly recurring fees owed by Customer to Tera Communications. Customer shall provide the bank name, bank account number, and ABA routing number and shall ensure that such account is able to accept an ACH debit request from Tera Communications. Customer shall sign any additional authorizations that Tera Communications requests in order to comply with the ACHA Rules or the rules and procedures of Tera Communications ACH service provider.
3.2 Credit Requirements: Customer will provide Tera Communications with credit information as requested, and in Tera Communications sole discretion, delivery of the Services may be subject to credit approval. Tera Communications may require Customer to make a deposit or pre-payment as a condition to Tera Communications acceptance of any SOF, or as a condition to Tera Communications continuation of Services. If a deposit is required, Tera Communications may request the deposit to be in cash or another acceptable form designated by Tera Communications. The deposit will be held by Tera Communications as security for payment of Customer’s charges. Customer acknowledges and agrees that Tera Communications is authorized and directed, in its sole discretion, to draw upon any deposit to pay any late charges or other fees associated with Tera Communications delivery of the Services to Customer. Upon termination of Customer’s Services, the amount of the deposit, if any, will be credited to Customer’s account and any remaining credit balance after final bill reconciliation will be refunded to Customer within thirty (30) days. Failure to provide a required deposit will constitute a material breach of the Agreement and shall permit immediate discontinuance of Customer’s Services without notice by Tera Communications.
3.3 Billing Disputes: In the event that Customer disputes any charges, Customer must submit a written claim describing the disputed amount. Customer shall submit all documentation as may reasonably be required to support the claim at the time the dispute is submitted and thereafter. Payment may not be withheld for any amounts subject to a dispute. All disputes must be submitted to Tera Communications prior to the Due Date. If Customer does not submit a claim as stated above, Customer waives all rights to file a claim thereafter. Tera Communications will use commercially reasonable efforts to resolve all disputes within forty-five (45) days of receipt of the dispute and Customer agrees that Tera Communications resolution of any such dispute shall be final and binding upon Customer.
3.4 Modification by Regulatory Authorities: The rates, terms, and conditions for some Services provided pursuant to the Agreement may be subject to Provider’s Tariffs or similar documents on file with a regulatory authority. Tariffs are subject to change at Tera Communications discretion and without Customer’s consent, in accordance with requirements of the applicable regulatory agencies. The Agreement shall at all times be subject to modification as necessary to incorporate any changes, revisions or modifications that the Federal Communications Commission or the applicable State Public Utilities Commission or other applicable regulatory authorities may, from time to time, direct in the exercise of its jurisdiction, or to pass on the Customer any charges or fees a regulatory authority imposes on Tera Communications or authorizes other carriers to charge Tera Communications for services provided by Tera Communications to Customer. In the event that actions of a regulatory authority result in a material modification to the Agreement, any adversely affected Party may terminate the Agreement, without liability, upon thirty (30) day’s notice to the other Party. Such notice shall be provided no later than sixty (60) days after the effective date such modification.
4.0 Conditions of Service
4.1 Installation Delay: Tera Communications LLC will use commercially reasonable efforts to ensure that the Services are installed and operational by the estimated service date provided to the Customer upon entering this Agreement. If Tera Communications LLC anticipates a delay in installation, the Customer will be notified promptly with an updated timeline.
4.1.A Specific Threshold for Termination Rights: If the installation of the Services is delayed by more than 90 days from the originally scheduled installation date, and such delay is not due to any act or omission by the Customer, the Customer may opt to terminate this Agreement. In such cases, the Customer must provide Tera Communications LLC with a written notice of termination within 10 days after the 90-day delay threshold has been reached. Before exercising the termination right, the Customer is encouraged to contact Tera Communications LLC to discuss any potential remedies or alternative solutions that Tera Communications LLC may offer to address the delay. Tera Communications LLC is committed to ensuring customer satisfaction and will make every reasonable effort to propose solutions such as discounts, service upgrades, or other compensatory measures.
4.1.B Procedures Following Termination Notice: Upon receiving a valid termination notice from the Customer, Tera Communications LLC will process the termination and provide any final billing within 30 days from the notice date. Any prepaid fees for services not rendered due to the termination will be refunded to the Customer within this timeframe.
4.2 Internet Quality: Customer acknowledges and agrees that Tera Communications makes no guarantees for the quality of any service that traverses the internet. Any quality issues or other impairments that arise from using the Internet are outside of Tera Communications control. Provided, however, if the internet quality is insufficient to meet Customer’s needs, it is the responsibility of the Customer to take necessary actions to improve their internet service or quality to meet the minimum requirements set forth by Tera Communications for effective service delivery. These actions may include upgrading their internet service, enhancing their network infrastructure, or implementing recommended technological improvements. Customer may choose to undertake such improvements at their own expense and initiative to ensure compliance with Tera Communications service standards.
4.3 Intent to Defraud: Customer acknowledges and agrees that Tera Communications, in its sole and absolute discretion, shall have the right to immediately refuse to provide or immediately discontinue the Services without advance notice, if the acts of the Customer or the conditions upon their premises are such as to indicate an intent to defraud Tera Communications or to use the Services to defraud a third party, including but not limited to, providing false credit information, significantly misstating expected service volumes, using the Services for unlawful purposes, using the Services in a manner that violates the law, or using Services without intent to pay. Customer acknowledges and agrees that it shall be responsible for any and all charges attributable to Customer, even if incurred as a result of fraudulent or unauthorized use of the Services by third parties. Although Tera Communications will endeavor to contact the Customer pursuant to the notice provisions prior to discontinuing the Services or portions thereof explaining the reasons for such action, Customer acknowledges and agrees that Tera Communications shall have no liability to customer for terminating the Services for its failure to have so notified Customer. Tera Communications may, but is not obligated to, detect or report unauthorized or fraudulent use of Services.
4.4 CPNI Privacy: The Parties acknowledge and agree that during the normal course of business, Tera Communications will have access to certain proprietary information, known as “Customer Proprietary Network Information” or “CPNI,” that relates to the quantity, technical configuration, type, destination, location, and amount of use of Services to end-user customers using certain Tera Communications Services. The Tera Communications CPNI Security Policy, and any and all modifications and updates thereto, are hereby incorporated into the Standard Terms and Conditions and SOF by reference. Customer agrees and authorizes Tera Communications and Provider to use its CPNI to provision, repair, and maintain Services to Customer.
4.5 Regulatory Provisions: In addition to the rates, terms and conditions set forth in the Agreement, certain State or Federal regulations may require additional or different terms and conditions for those service components subject to any such regulatory requirements.
4.6 911 and E911 Service: Customer acknowledges that for 911 services to function properly, the caller must be calling from the location associated with the number as provided by Customer during implementation, and that service address must be valid and accurate. Customer is prohibited in altering the Services in any way, and acknowledges and agrees that if the Services are altered in any way by Customer that 911 and E911 service may not function properly and Customer hereby agrees to indemnify Tera Communications and Provider from any and all liability associated with the failure of 911 services to function properly.
5.0 Term and Termination
5.1 Term; Other Agreements: The initial term shall be as provided in the SOF (the “Initial Term”). Alternatively, the SOF may specify that the Agreement is coterminous with another Agreement for Services entered into between Tera Communications and Customer, in which event the agreement shall have the same Initial Term as is provided in such other Agreement. After the Initial Term, all Services ordered under the Agreement shall renew on an annual basis, at the then-current rates and subject to the then-current Standard Terms and Conditions of Service, unless Customer renews the Services term.
5.2 Termination for Breach: Tera Communications shall have the right to terminate the Agreement in the event Customer fails to pay any amount by the Due Date. In the event this Agreement is terminated prior to the expiration of the Term due to a material breach by customer, Customer agrees to pay 100% of the monthly service charges multiplied by the number of months remaining in the Initial Term or any applicable renewal term, as identified on the SOF, and any term-related discount applicable to the affected Service. Customer shall also pay any non-recurring installation charges that were previously waived or reduced. However, if terminated for cause by Customer as provided in Section 4.1, Customer shall have no further obligations hereunder.
5.3 Effect of Termination: In the event this Agreement is terminated by the Customer prior to the expiration of the Initial Term for reasons other than those permitted under Section 4.1 (Installation Delay), the following cancellation fees will apply based on the time of termination within the contract period. If termination occurs within the first 12 months of the Agreement, the Customer agrees to pay a cancellation fee equivalent to 90% of the monthly service charges multiplied by the number of months remaining in the Initial Term. If termination occurs within the 13th to 24th months of the Agreement, the Customer agrees to pay a cancellation fee equivalent to 80% of the monthly service charges multiplied by the number of months remaining in the Initial Term. If termination occurs within the 25th to 36th months of the Agreement, the Customer agrees to pay a cancellation fee equivalent to 70% of the monthly service charges multiplied by the number of months remaining in the Initial Term. Additionally, if any non-recurring installation charges were waived or reduced as part of the initial service agreement, the Customer shall be responsible for paying these amounts in full upon early termination. This is to compensate Tera Communications LLC for the initial costs incurred that were deferred to facilitate the commencement of the service. These cancellation fees and additional charges are intended to compensate Tera Communications LLC for the expected revenue loss and incurred costs due to the premature termination of the Agreement. They reflect a decreasing obligation as the Customer approaches the end of the contract term. The fee calculation will be based on the monthly service rate at the time of termination. Upon termination, all outstanding fees up to the date of termination will become immediately due and payable. Tera Communications LLC will provide a final bill to the Customer within 30 days of termination, and any prepaid fees covering the period beyond the termination date will be refunded within the same timeframe.
5.4 Additional Services and Users.
By signing this Agreement, the Customer agrees that any additional services, features, or users requested after the initial contract date will be governed by the same terms and conditions outlined in this Agreement, including the original 36-month commitment period. The original signed Agreement will serve as the legally binding contract for all such additions, and the added services or users will terminate on the same date as the original contract end date, without extending or restarting the commitment period.
6.0 Software Licenses
6.1 Grant of License: During the term and subject to the terms and conditions of this Agreement, Tera Communications and Provider hereby grants to Customer a non-exclusive, non-transferable, sub-licensable right and license to access and use the software in object code form for its internal business purposes only. The license in the preceding sentence is limited to the number of Authorized Users for which Customer has paid in accordance with the applicable SOF. All rights in and to the software not expressly granted herein are reserved to Tera Communications.
6.2 License and Use Restrictions: Customer shall not, directly or indirectly, alone or with another party, (i) copy, disassemble, reverse engineer, or decompile the software; (ii) modify, create derivative works based upon, or translate the Software; (iii) transfer or otherwise grant any rights in the software in any form to any other party, nor shall Customer attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted hereunder.
6.3 Lease Warranty and Damage Coverage: At Tera Communications LLC, we are committed to providing our customers with reliable and high-quality hosted voice services. As part of our commitment, all leased phones are covered by a comprehensive warranty for the entire duration of the lease. This warranty exclusively covers any hardware failures due to defects in materials or workmanship. Please note, however, that our warranty does not extend to damages caused by the user, such as accidental damage, misuse, unauthorized modifications, or damages resulting from external causes like natural disasters. It is the responsibility of the lessee to handle the leased equipment with care and to avoid any actions that could lead to physical damage. In the event of damage caused by the user, there will be a replacement fee, which will be based on the Manufacturer's Suggested Retail Price (MSRP) of the specific phone model. The lessee will be responsible for this fee to cover the cost of repair or replacement, as applicable. We encourage our customers to read and understand these terms to ensure a smooth and trouble-free experience with our leased equipment.
7.0 Indemnification
7.1 Indemnification: Each party shall indemnify the other, the other’s affiliates, and all of their stockholders, officers, directors, agents, and employees (each, an “Indemnified Party”) at all times from and after the Effective Date against any liability, loss, damages (including punitive damages), claim, settlement payment, cost and expense, interest, award, judgment, diminution in value, fine, fee, and penalty, or other charge, including reasonable legal expenses, arising out of or relating to any claim by an unaffiliated third party (i) alleging that the use in accordance with this Agreement of the software or the Services (in the case of Tera Communications) or the Customer Data (in the case of Customer) infringes or misappropriates any intellectual property or privacy rights of the unaffiliated third party, or (ii) that arises or is alleged to have arisen solely out of the gross negligence or intentional misconduct of the indemnifying party (each a “Third Party Claim”).
7.2 Indemnification Process: The Indemnified Party shall promptly notify the indemnifying party in writing of any Third-Party Claim, stating the nature and basis of the Third-Party Claim, to the extent known. The indemnifying party shall have sole control over the defense and settlement of any Third-Party Claim, provided that, within fifteen (15) days after receipt of the above-described notice, the indemnifying party notifies the Indemnified Party of its election to so assume full control. The foregoing notwithstanding, the Indemnified Party shall be entitled to participate in the defense of such Third-Party Claim and to employ counsel at its own expense to assist in the handling of such claim, except that the Indemnified Party’s legal expenses in exercising this right shall be deemed legal expenses subject to indemnification hereunder to the extent that (i) the indemnifying party fails or refuses to assume control over the defense of the Third-Party Claim within the time period set forth above; (ii) the Indemnified Party deems it reasonably necessary to file an answer or take similar action to prevent the entry of a default judgment, temporary restraining order, or preliminary injunction against it; or (iii) representation of both parties by the same counsel would, in the opinion of that counsel, constitute a conflict of interest. The Indemnifying Party shall not settle any such Third-Party Claim without the written consent of the Indemnified Party, except for a complete settlement requiring only the payment of money damages to be paid by the Indemnifying Party.
7.3 Sole Remedy: Indemnification pursuant to this Section is the parties’ sole remedy for any third-party claim against the other party in the nature of negligence, gross negligence, intentional misconduct, intellectual property infringement, or invasion of privacy.
8.0 Disclaimers and Limitations
8.1 Disclaimer of Warranties: OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TERA COMMUNICATIONS MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, THE SOFTWARE, PRODUCTS OR SERVICES PROVIDED OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF THE SOFTWARE, PRODUCTS OR SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH HEREIN, TERA COMMUNICATIONS DISCLAIMS ANY WARRANTY THAT THE SOFTWARE, THE PRODUCTS AND SERVICES PROVIDED BY TERA COMMUNICATIONS OR PROVIDER, OR THE OPERATION THEREOF ARE OR WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED. TERA COMMUNICATIONS MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
8.2 Disclaimer of Consequential Damages: TERA COMMUNICATIONS HAS NO LIABILITY WITH RESPECT TO THE SOFTWARE, SERVICES, OR ITS OTHER OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS AND THE COST OF COVER) EVEN IF TERA COMMUNICATIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 Limitations of Remedies and Liability: EXCEPT FOR ANY CLAIMS SUBJECT TO INDEMNIFICATION HEREUNDER, CUSTOMER’S SOLE REMEDIES FOR ANY BREACH OF THIS AGREEMENT BY TERA COMMUNICATIONS ARE CORRECTION OF ERRORS AS SET FORTH HEREIN AND THE REPROCESSING OF ANY DATA THAT IS INCORRECT AS A RESULT OF THE BREACH AND THE APPLICATION OF ANY SERVICE LEVEL CREDITS AS DESCRIBED IN THIS AGREEMENT. EXCEPT FOR SERVICE LEVEL CREDITS APPLIED AS DESCRIBED ELSEWHERE IN THIS AGREEMENT, TERA COMMUNICATIONS’S TOTAL LIABILITY TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, IS LIMITED TO ALL FEES PAID TO TERA COMMUNICATIONS BY THE CUSTOMER IN RESPECT OF USER LICENSES FOR THE SOFTWARE DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY.
9.0 General
9.1 Assignment: Customer shall not assign any of its rights under this Agreement, except with the prior written consent of Tera Communications which consent shall not be unreasonably withheld. The preceding sentence applies to all assignments of rights, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law or any other manner. Any change of control transaction is deemed an assignment hereunder. Any purported assignment of rights in violation of this Section is void.
9.2 Governing Law; Venue: The laws of the State of Iowa (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement. Any claims or actions regarding or arising out of this Agreement must be brought exclusively in a court of competent jurisdiction sitting in the state of Iowa, and each party to this Agreement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Agreement. Each party waives, to the fullest extent permitted by law, any objection that it may now or later have to (i) the laying of venue of any legal action or proceeding arising out to or relating to this Agreement brought in any State or Federal Court sitting in [Preferred Iowa County]; and (ii) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.
9.3 Arbitration: Any controversy or claim arising out of or relating to this Agreement, or any breach thereof, must be resolved by confidential binding arbitration in the state of Iowa in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties agree that the arbitrator has the power to award all costs of the arbitration, including reasonable attorney’s fees and expenses, to the prevailing party. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the unsuccessful party shall pay to the successful party its reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which the successful party may be entitled.
9.4 Entire Agreement: This Agreement and any Service Order Forms constitute the Final Agreement between the parties. In the event of any conflicts between this Agreement and a Service Order Form, the order of precedence is the order set forth in this sentence, except to the extent that the conflicting document expressly states its intention to Tera Communications override a specific provision of the controlling document. It is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement cannot be explained, supplemented, or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied upon any statement, representation, warranty, or agreement of the other party except for those expressly contained in this Agreement. There are no conditions precedents to the effectiveness of this Agreement, other than any that are expressly stated in this Agreement. The parties can amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement.
9.5 Notices: Each party giving or making any notice, request, demand or other communication (each, a “Notice”) pursuant to this Agreement must give the Notice in writing and use one of the following methods of delivery, each of which for purposes of this Agreement is a writing: personal delivery, registered or certified U.S. Mail (in each case, return receipt requested and postage prepaid), or nationally recognized overnight courier (with all fees prepaid). Any party giving a Notice must address the Notice to the appropriate person at the receiving party (the “Addressee”) at the address listed on the SOF or to another Addressee or another address as designated by a party in a Notice pursuant to this Section. Except as provided elsewhere in this Agreement, a Notice is effective only if the party giving the notice has complied with this paragraph. Notices for Non-Renewals must be supplied within 45 days prior to your contract end date.
9.6 Modification of Standard Terms and Conditions: Tera Communications may amend these Standard Terms and Conditions at any time by posting the amended terms and conditions on Provider’s website and providing notice thereof to Customer. Customer will be deemed to have accepted the amended terms and conditions as part of the Agreement. In the event Tera Communications changes or alters these Standard Terms and Conditions and Customer is reasonably unable to comply with any such change or alteration, Customer may terminate this Agreement and be relieved of further obligations hereunder.
9.7 No Joint Undertaking: Nothing in the Agreement shall be construed as creating an associate, trust, partnership, agency, or joint venture between the Parties in any respect or with regard to any undertaking.
9.8 Survival of Provisions: Any obligations of the Parties relating to monies owed, as well as those provisions relating to confidentiality, limitations on liability and indemnification, shall survive termination of the Agreement
9.9 Waiver: The failure of either Party to enforce against the other any term or condition of the Agreement shall be deemed not to be a waiver of such Party’s right to enforce against the other Party the same or any other such term or condition.
9.10 Loss or Damage: You are responsible for the risk of loss or for any destruction of or damage to any and all equipment provided to you. No such loss or damage relieves you from the payment obligations under this agreement. You agree to promptly notify us in writing of any loss or damage to any equipment, and you will then continue to pay to us the total of all unpaid payments for the full agreement term, plus the estimated fair market value of the any lost or damaged equipment at the end of the originally scheduled term.
10.0 Service Level Agreement (SLA):
10.1 Service Commitment: Tera Communications is committed to providing a high-quality and reliable service experience. We differentiate our services into two categories for clarity and specific performance metrics:
Core Services: Core Services include all essential functionalities required for efficient call processing and routing. These are mission-critical components necessary for the basic operations of our telecommunications platform. Tera Communications commits to maintaining a 99.99% uptime for these Core Services.
Supporting Services: These include all non-essential functionalities that enhance the user experience but are not critical to the basic telecommunications operations, such as Management Portals and Device Provisioning capabilities. Tera Communications commits to a 99% uptime for these Supporting Services.
10.2 Uptime Calculation and Downtime Definition: Uptime is calculated monthly and does not include periods of scheduled maintenance, as pre-announced to customers, or any downtime caused by circumstances beyond Tera Communications' control. Downtime begins when a customer notifies us of an outage and ends when the service is fully restored.
10.3 Service Credits: If the uptime for Core or Supporting Services falls below the committed level in any given month, Tera Communications will issue a credit to affected customers as follows:
- 95.1% to 99.99% uptime: 5% of the monthly fee credited.
- Below 95% uptime: 10% of the monthly fee credited.
These credits apply solely to the monthly fee of the service that did not meet the uptime commitment.
10.4 Claiming Credits: To claim a service credit, customers must submit a claim within the 15 days of qualifying event in which the uptime commitment was not met. Claims must be submitted through direct contact with our support team.
10.5 Exclusions from Service Credits: Customers are not eligible for service credits in the following situations:
- If downtime was caused by actions of the customer, including but not limited to, configuration errors, improper use of the service, or exceeding usage limits.
- If downtime was due to scheduled maintenance or events within defined maintenance windows, as communicated in advance to customers.
- If the customer's account was suspended at any time during the month under review due to non-payment or other breaches of the service agreement.
- Downtime attributed to the customer’s failure to follow agreed-upon procedures for notification and troubleshooting.
10.6 Duration of Downtime for SLA Application: For the purpose of applying this SLA, only those outages lasting more than 90 consecutive minutes are considered as affecting uptime calculations.
11.0 Acceptance and Execution of Agreement: By signing the Tera Communications LLC Service Order Form, I acknowledge that I have read and agree to the terms and conditions contained in this Standard Terms and Conditions of Service Agreement. I understand that my digital or written signature on the Tera Communications LLC Service Order Form serves as my acceptance of the Tera Communications LLC terms and conditions as outlined in this document. This agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Both parties agree that a digital or electronically transmitted copy of this agreement bearing a digital or written signature shall have the same legal effect as an original signed copy.