Terms of Service

Tierzero Terms of Service

1. General

(a) These Terms and Conditions are part of the Contract (referred to as "Agreement") between Customer and Tierzero and/or its affiliated companies.

(b) Tierzero may increase the rates in this Agreement to pass through any price increases imposed on Tierzero by the providers of the underlying facilities used to provide the Services or, in the case of long distance services, by Tierzero's wholesale providers of such services. Tierzero may also change the rates, terms and conditions applicable to Services by giving Customer at least 30 days prior written notice. If Tierzero materially changes the rates or terms and conditions applicable to any of Tierzero's Services except for pass-through rate increases, Customer may cancel the affected Services provided Customer notifies Tierzero in writing before the effective date of the changes. If Customer cancels any of the Services due to such material changes, Customer will only be liable for the charges for those cancelled Service(s) incurred up to and including the date of termination. If Customer does not cancel the affected Service(s) before the effective date of the changes, Customer will be deemed to have consented to the changes and to a continuation of the Services.

(c) Under certain conditions, Customer may request that installation of Services be expedited by agreeing to pay an Expedite Fee. No projected date for expedited installation is guaranteed. Payment of the Expedite Fee only earns an advanced priority for your installation process and installation is not entirely within Tierzero's control. No credit or refund of the Expedite Fee will be made for delay of the installation date beyond the projected or requested date.

(d) Tierzero reserves the right to provide Services to Customer via Tierzero's choice of technology and to change the manner in which we deliver Services at any time in Tierzero's sole discretion provided the functionality of the Service provided remains substantially unaffected by the change.

2. Term and Billing Payment

(a) Effective Date. This Agreement is effective once signed by both Tierzero and Customer and Customer's credit application is approved. Upon approval, Tierzero will begin as soon as practicable the installation, connection and testing of the lines and/or equipment necessary to provide the Services. If Customer has renewed Services ("Service Renewal") for a new term ("Renewal Term"), the Effective Date of the Renewal Term is the date of the first invoice after the Service Renewal is entered into Tierzero's billing system.

(b) Term. The initial term of this Agreement ("Initial Term") will begin the date Tierzero provides notice to Customer that the Services are available for Customer's use. This Agreement will continue in effect for the entire Term chosen on the Service Agreement and for any subsequent Renewal Term. Customer may renew Services for a Renewal Term prior to the completion of the Initial Term. Customer may order additional services at the existing service location, subject to Tierzero's acceptance, under this Agreement. Services for additional Service Locations may also be ordered, subject to Tierzero's acceptance, under this Agreement. The initial term for additional Services ordered for additional Service Locations will begin the date Tierzero provides notice to Customer that the services are available for Customer's use, and will continue in effect for the entire Term specified on the Service Agreement for the additional Services. The Terms and Conditions of this Agreement shall extend automatically, following termination, to cover the remaining Term of any additional Services provided. See Section 4 of this Agreement for additional terms and conditions applicable to terminations.

(c) Billing. Tierzero will begin invoicing Customer for the Services after giving Customer notice that the Services are available for Customer's use and will continue invoicing Customer on a monthly basis until the Agreement is terminated. Tierzero will bill monthly recurring charges in advance and usage charges after the usage occurs. Customer is responsible for all sales, gross receipts, use, excise, and other federal, state and local taxes, charges and assessments based on Customer's use of the Services, which will be separately listed on each invoice along with any fees or surcharges applicable to the Services. Tierzero may require, in its sole discretion, that Customer provide a deposit or other assurance of payment before the Services are provided and/or thereafter. Any required deposit shall not bear interest unless required by law. If Customer delays acceptance of the Services after receiving notice that Services are available, Tierzero may, in our sole discretion, begin charging Customer for the ordered Services. If Customer continues to delay acceptance of the Services for more than 60 days after the date the Services are available, Customer will have materially breached this Agreement, and Tierzero will be entitled to terminate this Agreement without further notice and to pursue the remedies in Section 4 of this Agreement.

(d) Payment. Invoices are due and payable upon presentation, and become past due after the Pay By Date printed on the invoice. If Customer has a bona fide dispute with any of the amounts on the invoice ("Disputed Amount"), Customer shall pay all amounts not in dispute by the Pay By Date and provide Tierzero with a written request for a billing adjustment, together with all supporting documentation, within 45 days after the Pay By Date or Customer's right to any billing adjustment shall be waived. If Tierzero agrees to adjust all or a portion of the Disputed Amount, Customer will not be obligated to pay a late payment charge on the adjusted amount. If Customer fails to pay all non-Disputed charges on the Tierzero invoice by the Pay By Date, a late fee of $25 per month or 1.5% per month, whichever is more, will be applied to undisputed invoiced charges not received by the 5th day of the service month until balance is paid. Tierzero may also suspend Customer's services until all delinquent amounts, including late payment charges, are paid in full. An additional charge will apply to each returned check.

3. Customer Obligations

(a) Tierzero Property. Any equipment installed at Customer's premises by Tierzero or shipped to Customer by Tierzero or Tierzero's authorized third party vendor remains Tierzero property, and nothing contained in this Agreement shall give or convey to Customer any right, title or interest in such equipment. Customer agrees not to interfere with or damage the equipment and Customer agrees to reimburse Tierzero for any loss or damage that is caused by Customer's intentional or negligent acts or by the intentional or negligent acts of Customer's agents, employees, authorized users or representatives. Customer will allow Tierzero to promptly remove the equipment from Customer's premises or Customer will promptly return the equipment to Tierzero upon termination of the Services for which the equipment was used.

(b) Building Access. Customer shall obtain all necessary approvals, applicable permits and/or use fees to be attained, if any, for full access by Tierzero prior to installation of Service and while Service is provided.

(c) Responsibility for Message Content. Customer is solely responsible for all content that Customer makes available on or through Tierzero Services. Customer guarantees that all such content will not infringe on, or contain any content that infringes on, or otherwise violates any copyright, patent or any other right held by a third-party and that all such content will not violate any applicable law, rule, regulation or industry standard.

(d) Use of Services. Customer will not use the Services for any illegal, unlawful, abusive or fraudulent purpose and will use the Services in such a manner as to prevent damage to Tierzero's network. Customer's proper use of the Services includes conforming to all Acceptable Use Policies ("AUP") that are available on request and are displayed at Tierzero's web site at www.tierzero.com. The AUP may be amended from time to time. If Tierzero materially changes the AUP, Customer shall be provided the same right to notification and cancellation provided in Section 1(b) of this Agreement.

(e) Third-Party Obligations. Customer is responsible to pay any third-party vendor charges and to arrange for disconnection and payment of charges related to the disconnection of any related services with Customer's current carrier(s).

(f) Network Security. Customer acknowledges that it is Customer's responsibility to take whatever actions you the Customer deem necessary to make your computer and voice network and circuits adequately secure from unauthorized access. Customer further acknowledges that Tierzero only provides telecommunications services and certain equipment to Customer and that Tierzero is not responsible for the security of Customer's network and circuits from third parties, or for any damages that may result from any unauthorized access to Customer's network. Tierzero urges Customer to seek independent advice with respect to products, equipment (including configurations), and services available to make Customer's computer network and circuits more secure from third parties.

CUSTOMER FURTHER ACKNOWLEDGES THAT NONE OF TIERZERO'S EMPLOYEES, AGENTS, REPRESENTATIVES OR SUBCONTRACTORS HAS MADE, AND THEY DO NOT HAVE THE AUTHORITY TO MAKE, ANY REPRESENTATIONS CONCERNING THE SECURITY OF CUSTOMER'S NETWORK OR THE SERVICES TIERZERO PROVIDES THAT ARE INCONSISTENT WITH THE STATEMENTS CONTAINED IN THIS SECTION 3(e).

4. Termination

Either party may terminate this Agreement upon 30 days notice if the other party materially breaches the terms and conditions of this Agreement and the other party fails to cure the default within the 30-day period, including, but not limited to, Customer's failure to pay Tierzero invoices for the Services by the Pay By Date. If Customer terminates this Agreement after Tierzero's material breach, then Customer will be responsible only for charges for the period before the date of termination. If, however, Tierzero terminates this Agreement as a result of Customer's material breach, or Customer terminates this Agreement or any Services provided to Customer for any reason other than our material breach, Customer shall pay to Tierzero an early termination fee of 100% of the remaining balance of the agreement. In addition to any other recoveries Tierzero is entitled to, Tierzero shall be entitled to recover from Customer all of the costs Tierzero incurs (including court costs and reasonable attorneys fees) to collect any delinquent charges owed by Customer along with all other damages Tierzero incurs as a result of Customer's breach of this Agreement, including without limitation termination charges, past due recurring and usage charges, any damage to Tierzero's equipment and any amounts Tierzero has to pay to third parties because of violations by Customer of Tierzero's AUP.

Section 4 of this Agreement shall survive any termination or expiration of this Agreement.

5. Miscellaneous Provisions

(a) Assignment and Succession. Customer may not assign or transfer this Agreement without Tierzero's prior written consent, which shall not be unreasonably withheld. Any unauthorized assignment or transfer shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, successor and authorized assigns.

(b) Governing Law. This Agreement shall be deemed to have been made in the State of California, and shall be construed pursuant to the laws of the State of California without regard to the conflicts of law provisions thereof.

(c) Force Majeure. Tierzero shall not be liable for any failure of performance of the Services due to causes beyond Tierzero's control, including, but not limited to, fire, flood, electric power interruptions, national emergencies, civil disorder, acts of terrorists, riots, strikes, lockouts, work stoppages, Acts of God, or any law, regulation, directive, or order of the United States government, or any other governmental agency, including state and local governments having jurisdiction over Tierzero or the Services provided hereunder.

(d) Arbitration. If Customer and Tierzero cannot resolve between ourselves any dispute arising under this Agreement, Customer and Tierzero shall promptly submit the dispute to binding arbitration at the office of the American Arbitration Association ("AAA") located in the City or County of the state where the services are provided, or, if there is no AAA office at that location, then at the AAA office closest to where the services are provided ("Arbitration Site"). The arbitration will be held in accordance with the commercial arbitration rules of the AAA. Either party may initiate arbitration by providing written demand for arbitration (with a copy to the other party), a copy of this Agreement and the administrative fee required by the AAA rules to the AAA office serving the Arbitration Site. Customer and Tierzero shall share any remaining cost of the arbitration equally unless the arbitration award provides otherwise. Each party shall bear the cost of preparing and presenting its case. Customer and Tierzero agree to undertake all reasonable steps to expedite the arbitration process. One arbitrator will be appointed in accordance with the AAA rules within 30 calendar days of the submission of the demand for arbitration. The arbitrator will designate the time and place for the Arbitration within 30 days of appointment. The parties agree that the arbitrator's authority to grant relief shall be subject to the provisions of this Agreement, Tierzero's applicable tariffs, if any, and any other applicable law. The arbitrator shall not be entitled to award, nor shall either party be entitled to receive, punitive, incidental, exemplary, consequential, reliance or special damages, including damages for lost profits. The arbitrator's decision shall follow the plain meaning of this Agreement and shall be final, binding and enforceable in a court of competent jurisdiction.

(e) Entire Agreement and Modifications. This Agreement and all other documents specifically referred to in this Agreement constitute the entire and final agreement and understanding between Customer and Tierzero with respect to the subject matter of this Agreement and supersede all prior agreements relating to such subject matter, which are of no further force or effect. Any and all exhibits referred to in this Agreement are integral parts of this Agreement and are made a part of this Agreement. This Agreement may only be modified or supplemented by an instrument in writing executed by both Customer and Tierzero duly authorized representatives.

(f) Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court or administrative agency with jurisdiction over the Services, such provision shall be deemed amended to the minimum extent necessary to render it enforceable.

(g) Headings. The headings used in this Agreement are for convenience only and do not in any way limit or otherwise affect the meaning of any of the terms.

(h) Waiver. Under no circumstances shall Tierzero's failure to enforce any provision of this Agreement in any particular instance be construed as a waiver of that provision.

(i) Notices. All notices from Customer to Tierzero must be in writing and delivered by certified mail, return receipt requested or by Federal Express or other similar expedited delivery service to: Tierzero, 77 N Mentor Ave, Pasadena, CA 91106.