Terms of Service
"We", "us" and "our" refer to Telegia Communications, Inc. "You" and "your" refer to the customer identified on the attached Cover Page. "Terms" means these Commercial Terms and Conditions. "Agreement" means the attached Cover Page, these Terms, and any terms attached hereto or incorporated by reference in either of the foregoing. “Service(s)” refers to access services (“Access Services”) you ordered on the attached Cover Page, and any other services (e.g., voice services) we provide to you. “Equipment” means hardware or software we use or provide to you in connection with Services.
1. Our Duties. Subject to all terms of this Agreement, we will provide you Services and you will pay for those Services. These Terms include and incorporate by this reference our Internet Acceptable Use Policy ("AUP"), a current version of which is attached hereto as Exhibit "A", and you agree that you have reviewed, understand and agree to the AUP. Any private line services ("Private Line"), including but not limited to Metro Ethernet private line point to point circuits, shall be provisioned as a dedicated circuit. Any traffic traversing Customer’s Private Line circuit will be segmented from other customer’s traffic and will not traverse the Internet. The traffic will not be subject to degradation from other customers or Internet outages.
2. Availability of the Service. We are not liable for Service performance issues caused in whole or in part by you, by third parties, by your equipment or by Equipment you install or maintain or have a third party install or maintain. We are not liable for adverse performance of Services during modifications, relocation, or repairs to Equipment, provided that we give you notice of such activities.
3. Equipment. You grant us and our agents full right and authority of entry and access, across, under and over your Premises identified on the attached Cover Page ("Premises") to install, inspect, maintain, repair and remove Equipment, and to do anything necessary with respect to the Services or Equipment, for as long as we provide Service or as long as Equipment is on the Premises. While on the Premises, we will abide by all reasonable security procedures you have in place and that we have been made aware of in advance. You represent and warrant to us that you have the authority to grant us the right and authority of entry and access under this Section. You will abide by all license agreements associated with any computer software. We may supply new or reconditioned Equipment to you. We have no liability whatsoever for any loss, damage, or expense arising out of Equipment provided by you or a third party. You will not move Equipment from the location where installed or open, tamper with, make changes to, or try to repair, Equipment without our prior written permission. You assume all risk of loss of Equipment at the Premises resulting from abuse, misuse or intentional damage of any Equipment.
4. Charges. Except for Installation Fees specified on the attached Cover Page, which are due and payable immediately, you will pay all charges for use of Services and Equipment in full within 25 days after receiving our invoice. If you do not notify us of a billing dispute within 14 days of receiving our in – voice, you waive all rights to dispute that invoice. You will pay any local, state or federal taxes, charges or fees, including all applicable regulatory sur – charges and fees, in connection with the Services, along with all third party charges, including all applicable taxes, incurred while using the Services. You will pay interest on past-due amounts at the rate of 1.5% per month until paid in full.
5. Term. This Agreement is effective as of the Effective Date set forth on the attached Cover Page and shall remain in effect until you no longer take any Services and all of our Equipment provided to you or installed at the Premises has been returned to us and you have paid all charges. The Initial Service Term commences on the "Installation Date", which is the date we complete the installation of Services and Equipment and the Services and Equipment are ready for your use. You may cancel Services and/or terminate this Agreement effective at the end of the Initial Service Term by providing us written notice of your intent to cancel thirty days’ prior to the end of the Initial Service Term. If you do not provide such written notice, the Initial Service Term will automatically renew, and you agree that you will continue to take, and pay for, the Services, for the Extension Service Term indicated on the attached Cover Page and thereafter; provided, however, that you may, after the end of the Extension Service Term, cancel the Services at any time by giving us thirty days’ prior written notice to that effect. Upon cancellation of any Service, you will return any related Equipment (other than Equipment you bought from us) in its original condition and working order or you will be charged for the Equipment and it will be due and payable immediately. We will use commercially reasonable efforts to complete the installation of Services and Equipment and make the Services and Equipment ready for your use on or by the Estimated Installation Date(s) set forth on the attached Cover Sheet, but we cannot guarantee Services availability on the Estimated Installation Date(s), and we will not be in breach of this Agreement, or otherwise liable, for failure of Services to be available on the Estimated Installation Date(s).
6. Limitation of Liability. OUR LIABILITY IS SUBJECT TO ALL TERMS OF THIS AGREEMENT. OUR TOTAL LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT OR ANY SERVICES OR EQUIPMENT IS LIMITED TO ACTUAL, DIRECT DAMAGES, BUT IN NO EVENT ARE WE LIABLE FOR ANY AMOUNT IN EXCESS OF THE TOTAL AMOUNTS YOU PAID TO US FOR SERVICES DURING THE 12 MONTHS PRIOR TO THE TIME WHEN THE LIABILITY AROSE. IN NO EVENT WILL WE OR OUR DIRECTORS, OFFICERS, STOCKHOLDERS, EMPLOYEES, AGENTS AND AFFILIATES BE LIABLE WITH RESPECT TO THIS AGREEMENT, ANY SERVICES OR ANY EQUIPMENT FOR ANY TYPE OF INDIRECT, CONSEQUENTIAL, INCIDENTAL, RELIANCE, SPECIAL, OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS, LOST REVENUES, OR LOST SAVINGS OF ANY KIND, WHETHER ARISING UNDER CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. THESE LIMITS DO NOT APPLY TO DAMAGES FOR DEATH OR BODILY INJURY.
7. No Resale; Fixed Location Use. Services and Equipment are for your internal use only and you will not share, resell or assign the Services or any Equipment (other than Equipment you bought from us) without our prior written consent. The Services may not be moved to, or used from, any location other than the location to which the Services are first provided, without payment of new connection fees and any applicable early termination charge(s).
8. Events of Default. You are "in Default" if: (i) you fail to make payment when due and such failure is uncorrected for five (5) calendar days after notice by us; (ii) you breach any other provision of this Agreement and such breach is uncorrected for ten (10) calendar days after notice by us; or (iii) your use, or the use of any person accessing or using the Services or Equipment, violates, or is alleged to violate, any applicable law, rule, regulation or policy of any governmental authority. We may refuse, suspend, discontinue, or terminate Service(s) and remove Equipment and/or terminate this Agreement without notice if (a) you are in Default, or (b) Service is used in a manner that violates this Agreement or any applicable law, rule, regulation or policy of any governmental authority or affects provision of any service to you or any other users.
9. Indemnification. You will indemnify, defend and hold harmless us, our directors, officers, stockholders, employees, agents and affiliates from and against any liability, loss, damage, or expense arising in connection with any actual or threatened claim, action, or proceeding arising out of any act or omission by any person (other than us) accessing Services or Equipment, whether authorized by you or not, which violates, or is alleged to violate, this Agreement or any applicable law, rule, regulation or policy of any governmental authority.
10. Self-Installation. We will have no liability whatsoever for any inability to use the Services or Equipment due to, or damage caused by, installation, maintenance or removal of Equipment by you or a third party chosen by you. You will indemnify, defend and hold harmless us, our directors, officers, stockholders, employees, agents and affiliates from and against any liability, loss, damage, or expense in connection with claims, actions, or proceedings arising out of installation, maintenance or removal of Equipment by you or a third party chosen by you.
11. No Liability for Content. We have no responsibility for, or obligation to control, content available through the Services, and you access and use the Services and such content at your own risk. Neither we nor our directors, officers, stockholders, employees, agents or affiliates will have any liability whatsoever for claims, losses, actions, damages or proceedings relating to such content. We have the right (but not the duty) to monitor content accessed, transmitted or used by anyone accessing Services or Equipment, whether authorized by you or not, and to disclose information as necessary to satisfy any law, regulation or other governmental request, to operate the Services or to protect us or other users. We may remove any materials that we deem to be undesirable or in violation of this Agreement. Without limiting any other provision of this Agreement, you will not, and will not cause or permit any other person to, use Equipment or Services: (i) to violate, or in connection with any act or omission which violates, any law, rule, regulation or policy of any governmental authority; (ii) for any unlawful, immoral, invasive, infringing, harassing, defamatory, fraudulent, or obscene purpose; or (iii) in a manner that violates Telegia's then-current publicly available policies regarding acceptable use of Equipment or Services (including without limitation the AUP). You will indemnify, defend and hold harmless us, our directors, officers, stockholders, employees, agents and affiliates from and against any liability, loss, damage, or expense arising in connection with a claim that use of Equipment or Services by anyone, whether authorized by you or not, infringes any right of any third party.
12. WARRANTIES. Commencing on the Installation Date, the Services will operate as substantially continuously, except for (i) regularly scheduled maintenance, (ii) maintenance required as a result of matters beyond our reasonable control, (iii) events beyond our control, or (iv) your failure to perform in accordance with this Agreement. Service Level Agreement per Circuit SLA Value Service Availability with Single Lateral 99.9% Service Availability with Diverse Dual Lateral 99.99% Service Availability with Diverse Dual Lateral and Managed Redundancy 100% Layer 2 Packet Loss Less than 1% Layer 2 Latency (One Way) Less than 40 msec Layer 2 Jitter (One Way) Less than 10 msec Mean Time-To-Repair (MTTR) 4 Hours Upon a failure of the Services to operate as described in this Section 12, we will grant you a credit against future amounts due hereunder calculated as follows ("Service Credit(s)"): for each sixty (60) minute period that the Access Services are the subject of a continuous Interruption, we shall grant you a credit equal to 1/720 of the monthly recurring charge for the affected Services. To receive Service Credit(s), you must request Service Credit(s) in writing within thirty (30) days after the occurrence of the Interruption which gave rise to such Service Credit(s). For purposes of the foregoing, “Interruption” means a total failure of the Services to operate as described in this Section 12. The duration of any Interruption will commence when you first report the Interruption to us and will end when the Interruption ceases. You agree to promptly: (i) notify us of any Interruption, (ii) cooperate with us in implementing any required fixes and (iii) provide us with any monitoring data used by you to determine the existence of an Interruption and its duration. Service Credits shall be your sole and exclusive remedy for any failure of the Services to operate as described in this Section 12. EXCEPT FOR EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, ALL EQUIPMENT AND SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR CONTRACTUAL, AND ANY WARRANTIES NOT EXPRESSLY SET FORTH IN THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY DISCLAIMED AND EXCLUDED.
13. Access Services. You are solely responsible for backing-up all data prior to installation, inspection, maintenance, repair or removal of Equipment. We will have no liability whatsoever for any damage to your computer, software, files, data or peripherals or for breaches of your security (including access to your computer, software, data or peripherals) in connection with Access Services (excluding damages for death or bodily injury). You represent that you have reviewed the minimum technical requirements necessary to use Access Services and that computer(s) in which Equipment will be installed or which use Access Services meets these requirements. You must possess original (or equivalent) media (CD, disk, etc.) for the operating system of that computer(s) in order for installation of Access Services and related Equipment to be successful.
14. General. We are not liable if our performance is delayed or prevented by causes beyond our control such as an act of God, natural disaster or any unforeseen action by you or third parties that impairs the use of our Service or Equipment. This Agreement will be governed by the laws of the State of Georgia (without regard to its conflict of law principles) and applicable tariffs and similar documents (including any publicly available price lists) ("Tariffs"), and state and federal laws, rules, and regulations. Our obligations are subject to any applicable law, rules or regulations, and any of our or our affiliates’ Tariffs or Tariffs of third parties we contract with, and in the event of a conflict between the terms of any applicable Tariff, rule, or regulation and this Agreement, the Tariff, rule, or regulation controls with respect to the conflicting provision, but all non-conflicting provisions of this Agreement continue to apply. Provisions regarding payment, limitation of liability, exclusions of warranties, arbitration and indemnification will survive termination of this Agreement. Except as provided in this Agreement, neither party may amend or modify this Agreement except by a writing signed by both parties. You may not assign any of your rights or obligations under this Agreement, or any Services or any Equipment, without our prior written consent. This Agreement, as amended from time to time, along with any orders accepted by us and any applicable Tariffs, constitute the entire agreement of the parties with respect to Services and Equipment, and supersede all prior oral or written agreements, understandings, representations and warranties. In the event of a conflict between the terms of any orders and this Agreement, this Agreement will control. Any provision of this Agreement determined by a legal authority of competent jurisdiction to be illegal, invalid, or unenforceable in any jurisdiction shall be deemed separate, distinct and independent, and shall be ineffective to the extent of such determination without (i) invalidating the remaining provisions of this Agreement in that jurisdiction or (ii) affecting the validity or enforceability of such provision in any other jurisdiction. Any additional or varying terms contained in your preprinted forms, purchase orders, correspondence or other documents transmitted to us shall be of no effect.
15. Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement, any Services or any Equipment shall be settled by binding arbitration in Atlanta, Georgia, administered by the American Arbitration Association under its Commercial Arbitration Rules. Judgment on the award may be entered in any court having jurisdiction thereof. Arbitrator(s) may award costs and reasonable attorney’s fees to the prevailing party, but may not award punitive damages or any damages other than actual direct damages.