Terms And Conditions

Purpose: This Sales Terms and Conditions document (“Agreement”) is intended to accompany a Sales Agreement between Tera Networks (“Tera”) and the customer (“Customer”). The terms of this Agreement are hereby incorporated into any current and/or future proposals by the Customer’s acceptance of any such proposal. A proposal may describe certain equipment and/or services that the Customer may purchase from Tera. If the proposal includes consultation services the Customer understands that the price quotation (unless specifically fixed) is merely an estimate of the total consultation fee that may be incurred and that actual Tera consultation fees may be higher. Further Tera does not guarantee that the Customer’s end results can be achieved. Any work performed under a consulting contract is subject to a minimum charge of one (1) hours’ time. Tera will invoice Customer at the end of each month for services provided during that month.

Invoicing and Rate Charges: Invoices issued by Tera are due upon Net 15 terms. There may be multiple invoices if the work effort is performed across multiple billing cycles. Any invoice not paid within 30 days from the invoice date shall bear interest at a rate equal to the lower of one-and-one half percent a month or the maximum rate allowable by law. A failure by Customer to pay any invoice when due empowers Tera to suspend further performance under the contract until the invoice is paid unless the invoice is in dispute. Customer must notify Tera of any dispute of invoice within 10 days of invoice date. Payment is due in U.S. dollars unless mutually agreed otherwise.

Any proposal's hourly rate (if any services are proposed on an hourly basis) is firm, after the proposal is accepted by Customer’s P.O., for a period of 12 months from the P.O. date but thereafter can be changed unilaterally by Tera Hourly rates are charged to Customer based on a 8:30 a.m. to 5:00 p.m. work day, Monday through Friday less locally observed holidays by Tera, and work at other times shall be charged at one and one-half times the proposal's hourly rate, with the exception of holidays which are two times the hourly rate.

Charges, fees and prices are exclusive of and Customer is responsible for all applicable taxes and all applicable duties and custom charges that may be required by government authorities.

Tera’s Responsibilities: Tera will assign personnel it deems to have appropriate education and experience to provide services to Customer. Tera will make a presentation of any analysis or recommendation Customer requests. However it is the Customer’s responsibility to choose the services that it wishes. Unless the work to be performed is for a fixed fee for service, Tera will endeavor to complete all consulting work effort within Tera's proposal's estimated time and dollar amount, but Tera does not guarantee its consulting work effort can be completed in such time frame or for such estimated amounts. In such an event should it appear Tera’s work effort will exceed the amount estimated in the proposal, Customer or Tera may suspend further performance until Tera has received Customer’s written authorization to continue performance or has received a Customer P.O. authorizing payment for the work. Tera will not support, nor shall it be responsible for, any machines with pre-existing malicious software, as determined in the sole discretion of Tera. Malicious software shall include, but not be limited to, Kazaa, Bonzi Buddy, Comet Curser and Lime Wire.

Customer’s Responsibilities: Customer will assign a coordinator to monitor the work and provide guidance. Where work is to be carried out at Customer’s premises, Customer will provide Tera reasonable and timely access to the area where the work is to be performed, and work space and access to facilities, equipment, and services as required, including appropriate telephone and telecommunications equipment, test equipment, and computer hardware and software. Customer will take all reasonable precautions to ensure the health and safety of Tera personnel while they are on Customer’s premises. Customer will provide Tera with all necessary information and support that may reasonably be required to accomplish the work. Customer will not charge Tera for providing the items and services above.

Warranty: Tera warrants that the services provided by it hereunder will be performed in a workmanlike manner. TERA DOES NOT WARRANT OR GUARANTEE THAT ANY PARTICULAR RESULTS CAN OR WILL BE OBTAINED. THE FOREGOING WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED.

limitation OF liability: TERA’S LIABILITY FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED TO THE AMOUNT PAID TERA FOR THE SERVICES AND/OR EQUIPMENT THAT ARE THE SUBJECT OF CUSTOMERS’S CLAIM. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT OR TORT, INCLUDING WITHOUT LIMITATION NEGLIGENCE. IN NO EVENT WILL TERA BE LIABLE FOR ANY DAMAGES RESULTING FROM DAMAGE TO SOFTWARE OR FIRMWARE, LOSS OF DATA OR LOSS OF USE, LOST PROFITS, LOST REVENUE, OR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES. THE FOREGOING LIMITATIONS DO NOT APPLY TO DAMAGES RESULTING FROM PHYSICAL INJURY TO PERSONS CAUSED BY TERA’S NEGLIGENCE.

TERA SHALL NOT BE LIABLE FOR CLAIMS ASSERTED BY THIRD PARTIES. TERA SHALL NOT BE LIABLE IN ANY EVENT FOR ANY LOSS OR INJURY TO PERSONS OR PROPERTY TO THE EXTENT CAUSED BY (A) ACTS OR OMISSIONS OF THE CUSTOMER OR ITS EMPLOYEES, CONTRACTORS, AGENTS OR SUPPLIERS, OR (B) THE FAILURE OR MALFUNCTION OF ANY TOOLS, EQUIPMENT, SOFTWARE, FACILITIES OR DEVICES NOT PROVIDED BY TERA, (C) THE FAILURE OR MALFUNCTION OF ANY EQUIPMENT OR SOFTWARE PROVIDED BY TERA (CUSTOMER HEREBY AGREEING TO PURSUE REMEDIES FOR SUCH FAILURES OR MALFUNCTIONS EXCLUSIVELY FROM THE MANUFACTURER UNDER THE MANUFACTURER’S WARRANTY) OR (D) THE NEGLIGENT, TORTIOUS OR CRIMINAL ACTS OF 3RD PARTIES.

Force Majeure: Tera shall not be responsible or liable for any failure or delay in the performance of any obligations when such failure or delay was due to or resulted from any cause beyond Tera’s reasonable control.

Confidential Information: The parties agree that confidential information may be exchanged. Confidential information shall be identified in writing as such and shall remain the property of the provider. Neither party shall use for its own benefit, sell and/or disseminate the other party’s confidential information without written permission. Each party agrees to treat the confidential information of the other party with the same degree of care with which it treats its own confidential information. No obligation is imposed with respect to any information that is in the public domain, is known to recipient prior to receipt, is independently developed by the recipient or is lawfully received by the recipient from a third party.

Network Security: Tera will hold confidential all passwords, log-in ID numbers, general data streams, operator console information, and other information gained in or revealed by Tera's activities. IF THE ACCOMPANYING PROPOSAL IS FOR NETWORK SECURITY SERVICES, TERA WILL USE ITS BEST EFFORTS IN PERFORMING THE NETWORK SECURITY SERVICES, BUT DOES NOT WARRANT THAT ITS NETWORK SECURITY SERVICES WILL RESULT IN A NETWORK SECURE FROM INTRUSION. TERA SHALL NOT BE RESPONSIBLE FOR THE NEGLIGENT, TORTIOUS OR CRIMINAL ACTS OF 3RD PARTIES, INCLUDING, BUT NOT LIMITED TO, VIRUSES, HACKERS AND REFUSAL OF SERVICE ATTACKS.

Employee non-interference: Neither party shall, for a period of one year following the later of the termination of the contract or the cessation of a business relationship between the parties (whether such relationship arises from the contract or from any subsequent contract entered into by Tera and Customer while the contract of which this is a part is being performed), hire or contract with any person who works for the other party or any person who worked for the other party when the contract was made of which this document is a part.

Both parties acknowledge that the other party’s employees have entered into a non-competition agreement with the other party that forbids the employee from working in competition with the employer for a period of time and in a geographic area described in the non-competition agreement. Both parties SPECIFICALLY ACKNOWLEDGE THEIR AWARENESS OF THE EXISTENCE OF THIS NONCOMPETITION AGREEMENT BETWEEN THE OTHER PARTY AND ITS EMPLOYEES, AND BOTH PARTIES SPECIFICALLY ACKNOWLEDGE THAT THEIR ACTIONS IN INDUCING THE OTHER PARTY’S EMPLOYEE TO VIOLATE THE EMPLOYEE’S NONCOMPETITION AGREEMENT MAY CAUSE THE OTHER PARTY TO BE LIABLE UNDER THE LAWS OF SOME STATES FOR COMPENSATORY AND PUNITIVE DAMAGES FOR THE TORT OF INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONSHIP.

Both parties agree that the other party will suffer substantial and irreparable harm from any violation of these contract terms, and that such harm cannot readily be computed but is substantial. Therefore, the breaching party agrees to pay all legal fees of the other party incurred in seeking relief, legal or equitable, for the breaching party’s violation of these contract terms.

Arbitration: Arbitration; Venue: In the event of a dispute arising out of this Agreement, or any obligation, representation or warranty contained herein, the parties agree to submit all such disputes to binding arbitration to be held in the City of Southfield, State of Michigan, only. The arbitration shall be conducted pursuant to the rules of the American Arbitration Association. The losing party agrees to pay the prevailing party’s reasonable attorneys’ fees and costs and further agrees that the prevailing party may enter any monetary award arising out of the arbitration in any court of competent jurisdiction. Said arbitration shall be before one arbitrator and there shall be limited discovery allowed bearing directly upon the controversy.

Insurance: Tera carries Worker’s Compensation and Employer’s Liability Insurance, Comprehensive General Liability Insurance and Automotive Liability Insurance. Certificates of Insurance will be furnished upon Customer’s written request.

Termination: If either party fails to perform its obligations and such failure continues for a period of 10 days after written notice, the other party has the right to terminate. Upon termination Tera shall be paid for both services that have been rendered as well as those for which the Customer has already agreed to. In addition Tera shall be reimbursed for all costs incurred to the time of termination.

Export: Customer agrees not to export, directly or indirectly, any U.S. source technical data to any country or citizen thereof which export may be in violation of the U.S. export law or regulations.

General Conditions

• 1. Nouns and pronouns will be deemed to refer to the masculine, feminine, neuter, singular and plural, as the identity of the person or persons, firm or corporation may in the context require.
• 2. The Article headings contained in this Agreement have been inserted only as a matter of convenience and for reference, and in no way shall be construed to define, limit or describe the scope or intent of any provision of this Agreement.
• 3. This Agreement may be executed in several counterparts, each of which will be deemed an original but all of which will constitute one and the same.
• 4. This Agreement constitutes the entire agreement and contains all of the terms of the agreement between the parties with respect to the subject matter hereof. This Agreement supersedes any and all other agreements, either oral or written, between said parties with respect to the subject matter hereof.
• 5. Upon breach by either party of any provision of this Agreement, the non-breaching party shall be entitled to seek any and all remedies to which it may be entitled, subject to the terms of this Agreement, in law or in equity.
• 6. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted.
• 7. This Agreement may be amended or revoked at any time by a written agreement executed by all of the parties to this Agreement. No change or modification to this Operating Agreement shall be valid unless in writing and signed by all of the parties to this Agreement.
• 8. No delay or omission by the Corporation in exercising any right, remedy or power under this Agreement, or existing at law or in equity, will be considered as a waiver thereof, and any such right, remedy or power may be exercised by the Corporation from time to time and as often as may be deemed expedient or necessary by the Corporation in its sole discretion.
• 9. Any notice permitted or required under this Agreement and will be deemed to have been given, when deposited in the United States mail, postage paid, or when delivered in person, or by courier or by facsimile transmission.
• 10. Subject to the provisions of this Agreement relating to transferability, this Agreement will be binding upon the parties and shall inure to the benefit of the successors and assigns of the Corporation and to the estate, heirs, legatees, administrators and beneficiaries of the Vendor.
• 11. This Agreement is personal to each of the parties hereto and neither party may assign or delegate any of his or its rights or obligations hereunder without first having obtained the written consent of the other party.
• 12. All covenants, stipulations and promises in this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and legal representatives.
• 13. This Agreement is being executed and delivered in the State of Michigan and shall be governed by, construed and enforced in accordance with the laws of the State of Michigan.