This Agreement (“Agreement”) entered into on the Effective Date (as set forth in the attached Sales Order form) applies to and shall govern Customer’s purchase of communications, cable and/or video services (“Services”) from RCN Telecom Services, LLC. (“RCN”). RCN and Customer may collectively be referred to as “the Parties”.
Term: This Agreement (“Agreement”) entered into on the Effective Date (as set forth in the attached Sales Order form) applies to and shall govern Customer’s purchase of communications, cable and video services (“Services”) from RCN Telecom Services, LLC. (“RCN”), with offices at 650 College Road East, Suite 3100, Princeton, NJ 08540. RCN and Customer are referred to as “the Parties”. Term: This Agreement shall begin on the Effective Date and end upon the completion of twelve (12) months. The Agreement shall be automatically extended on a month-to-month basis upon the expiration of the initial twelve (12) month period, unless either Party has delivered written notice of its intent to terminate the Agreement at least thirty (30) days prior to the expiration of the initial term or any extension.
Services: This Agreement applies to the Customer’s purchase of Services from RCN as set forth in this Agreement, the Exhibit to this Agreement, and any subsequent Sales Orders that supplement this Agreement. Tariffs and Web-Based Standard Terms: RCN’s provision of Services to Customer will be governed by RCN’s applicable tariffs (“Tariffs”) and RCN’s web-based RCN “Policies and Disclaimers”, each as supplemented by this Agreement. RCN’s standard Policies and Disclaimers are available to Customer at http://www.rcn.com. RCN may modify these Policies and Disclaimers from time to time and any modification will be binding upon Customer, provided that if RCN makes any changes to the Policies and Disclaimers which affect Customer in a material and adverse manner,Customer, as its sole remedy, may discontinue the affected Service without liability by providing RCN with written notice of discontinuance within sixty (60) days of such change. The contractual relationship between RCN and customer shall be governed (in the event of any conflict) by the following order of precedence: (a) tariffs, (b) the provisions of this Agreement, and (c) RCN’s Policies and Disclaimers.
Payment Terms: (a) Customer shall pay for RCN services in accordance with applicable tariffs and this Agreement. RCN will invoice Customer for service one month in arrears for usage and one month in advance for other applicable charges. Customer shall pay each invoice, less charges disputed in accordance with this Agreement, within thirty (30) days of the invoice date. In the event Customer should fail to make any payment when due, Customer shall be liable to RCN for a late charge on all past due amounts at the compounded rate of one and one-half percent (1.5%) per month (or such lower rate that is then the maximum rate allowed by law). In the event that Customer is overdue on its payment obligations, RCN may, at its option, upon no less than five (5) days prior written notice to Customer, suspend the circuits, services and/or work being delivered under the Agreement until Customer’s account is current. All amounts due to RCN are due and payable without set off. Customer shall be responsible for all fees and expenses RCN incurs due to Customer’s action or inaction during installation of the ordered service (including, without limitation, third party fees assessed attributable to any order modification). RCN reserves the right to verify Customer’s creditworthiness as a condition of providing Service. RCN may, in its sole discretion, require assurance of payment from Customer, including the posting of a deposit.
(b) Should the Customer dispute any of the charges on its monthly invoice, it shall notify RCN of such disputed charges in writing no later than thirty (30) days after date of the invoice. Customer shall timely pay all amounts not in dispute. Any dispute notice shall set forth all details concerning the disputed charges and reasons for the dispute. RCN and Customer shall attempt in good faith to resolve any objection to the invoiced amount prior to the payment due date or, if the due date has already passed, within ten (10) days of Customer’s notice of dispute. If agreement cannot be resolved prior to the payment due date, Customer shall pay the invoiced amount minus the disputed amount on the due date of original invoice. If the dispute is subsequently resolved in favor of RCN, Customer shall pay all amounts agreed or found to be owing to RCN within thirty (30) days of the date of the reissued invoice. Payment shall not prejudice Customer’s right to dispute charges, so long as they are disputed in the manner and within the time specified in this section. Any credits resulting from the dispute will be reflected in a subsequent billing cycle.
Credits: In the event of a Service Outage, Customer shall be entitled to a credit for the prorated monthly recurring charges for the affected Service. A Service Outage occurs when the Customer experiences a complete loss of connectivity, and begins when RCN is notified or becomes aware of the failure, whichever occurs first. A Service Outage ends when the affected line and/or Service is fully operative. The total outage time is calculated by taking the difference between the start time and end time less any delay time associated with RCN’s inability to access the Customer or End User Premise. Credit Allowances do not apply to Service Outages: (i) caused by the negligence or acts of Customer and/or End User or its agents; (ii) due to failure of power at Customer or Customer’s End-user’s location; (iii) the failure or malfunction of non-RCN equipment or systems; (iv) circumstances or causes beyond the control of RCN or its agents; (v) during any period in which RCN is not given access to the Service Premises; or (vi) a Planned Service Outage, unscheduled Emergency Maintenance, or scheduled Maintenance. To be eligible for an Outage Credit, Customer must submit a request for credit in writing within sixty (60) days of the occurrence that includes the Trouble Ticket Number and Circuit ID or any claim for an allowance is waived. Unless otherwise specifically stated, Service Outages are not aggregated for purposes of determining the credit allowance. All Service Outage Credits are capped at 100% of the MRC for the applicable service or circuit for any given month. Credit allowances, if any, shall be deducted from the charges payable by Customer on a subsequent invoice. Equipment: RCN will respond to all requests for system repair and will repair or replace defective equipment at Customer’s business location. RCN is not responsible for the maintenance or repair of Customer provided equipment. A service charge may be imposed if damage to RCN equipment is due to negligent use or abuse by customer, or if no fault is discovered in RCN’s system or equipment. All equipment installed by RCN, including but not limited to converter(s), any security devices of amplification equipment and all remote control units provided to Customer by RCN shall at all times remain the property of RCN. Customer shall use reasonable care while in possession of RCN equipment, agrees not to tamper with RCN equipment, and shall return RCN’s property in good working condition upon termination of service. Taxes and Fees: Customer shall be responsible for any applicable federal, state or local use, excise, sales or other taxes, fees, assessments, including without limitation universal service assessments or similar amounts in connection with any service furnished to Customer. Customer shall pay all taxes directly to the taxing authority unless the taxing authority requires that RCN collect and remit payment, in which event Customer shall pay these amounts to RCN and RCN shall remit these amounts to the authority. If applicable, RCN will exempt Customer in accordance with law, effective on the date RCN receives a valid exemption certificate from Customer.
Termination for Cause: Either party may terminate this Agreement for Cause. Cause means a breach by the other party of any material provision of this Agreement, provided that written notice of the breach has been given to the breaching party, and the breach has not been cured within thirty (30) days after delivery of the breach notice. Termination by RCN: RCN may discontinue service and/or terminate this Agreement immediately upon notice to Customer if Customer provides false information to RCN regarding the Customer’s identity, creditworthiness or planned use of the Services. RCN may discontinue service immediately, without notice, if interruption of service is necessary to prevent or protect against fraud or otherwise protect RCN’s personnel, facilities or services.
Early Service Termination: If (a) Customer terminates this Agreement during the Initial Term for reasons other than Cause, or (b) RCN terminates this Agreement for Cause, then Customer will pay, within thirty (30) days after such termination, (i) all past due but unpaid charges and interest incurred through the date of termination, plus (ii) in the event Customer has contracted for a term 1 year or longer an amount equal to one hundred percent (100%) of the remaining monthly recurring charges that would have been incurred for the order service for the remainder of the Term, plus (iii) any disconnection, early cancellation or termination charges incurred and paid to third parties by RCN on behalf of Customer, plus (iv) any additional amount set forth in an applicable Service Order. The parties agree that the precise damages resulting from an early termination by Customer are difficult to ascertain, and the early termination fees are a reasonable estimate of anticipated actual damages and not a penalty.
Limitation of Liability: RCN’s total liability to Customer in connection with this Agreement for any and all causes of action and claims, including without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentation and other torts, shall be limited to the lesser of: (a) proven direct damages or (b) the aggregate amount of payments made by Customer to RCN during the six (6) month period immediately preceding the month in which the circumstances giving rise to the claim occurred.
Underlying Rights: All services are subject and subordinate to the limitations and restrictions of the Underlying Rights (defined below) through which, in whole or in part, RCN provides Services. All Services are subject and subordinate to the prior right of the grantor of the Underlying Rights to use the right of way for other business activities, including railroad operations, telecommunications uses, pipeline operations, electrical or other utility services of any other purposes and to the prior right of RCN to use its rights granted under the Underlying Rights. Nothing in this Agreement shall be construed as to be a representation, warranty or covenant of RCN’s right, title or interest with respect to the Underlying Rights. Upon expiration or the earlier termination of an Underlying Right that is necessary in order to grant, continue or maintain any Service, RCN shall use commercially reasonable efforts to renew such Underlying Right or to obtain an alternate Underlying Right. If RCN is required to relocate any part of its network during the term of this Agreement, including any of the facilities used or required in providing Services to Customer, RCN shall determine the extent of, the timing of, and the methods to be used for such relocation. Relocation shall not affect the term of this Agreement or the term of any services ordered. “Underlying Rights” means the right of way, access rights, covenants, easements, restrictions, and other agreements obtained by RCN from third parties for the construction, operation and maintenance of its network and/or facilities.
Indemnification: Customer shall indemnify, defend and hold harmless RCN and its affiliates, employees, directors, officers, representatives, subcontractors, interconnection service providers, suppliers and agents (“Indemnified Parties”) from and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses, including, without limitation, interest, penalties and reasonable attorneys’ fees and disbursements (collectively, “Claims”), to the extent any such Claim is asserted by a third party against any Indemnified Party, directly or indirectly, by reason of or resulting from any Customer failure to perform an obligation under this Agreement or any action or inaction of Customer or its employees or agents that is illegal or constitutes negligence or intentional misconduct, or as a result of: (i) claims for libel, slander, infringement of copyright or unauthorized use of trademark, logo, trade name or service mark arising out of use of any service; (ii) claims for patent infringement arising from combining or connection of facilities to use RCN’s network; (iii) claims for damage to property and/or personal injuries (including death) arising out of the negligence or willful act or omission of Customer; and (iv) claims that the content or the actions of Customer violate any law or regulation.
Disclaimer of Warranties: EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, RCN MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY RCN SERVICES, RELATED PRODUCTS, EQUIPMENT, SOFTWARE OR DOCUMENTATION. RCN SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. Disclaimer of Certain Damages: NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS OR GOODWILL, ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
Force Majeure: Neither Party shall be liable, nor shall any credit or other remedy be extended, for any failure to full obligations under this Agreement due to causes beyond a Party’s reasonable control, including but not limited to: acts of God, flood, extreme weather, fire or other natural calamity, terrorist attack, any law, order regulation or action of any governmental entity or civil or military authority, power or utility failures, cable cuts, unavailability of rights-of-way, national emergencies, riots, wars, strikes, lock-outs work stoppages or other labor difficulties. A Force Majeure event shall not excuse the obligation to make a payment due pursuant to this Agreement, except to the extent that the Force Majeure event physically interferes with and delays delivery of the payment.
Confidentiality: Commencing on the Effective Date and continuing until the date which is three (3) years after the termination of this Agreement, each Party shall protect as confidential and shall not disclose to any third party, any confidential or proprietary information (“Confidential Information”) received from the disclosing Party or otherwise discovered or received by the receiving Party during the term of this Agreement. Confidential Information shall include any documents or material marked Confidential, and shall additionally include but not be limited to the pricing and terms of this Agreement, and any information relating to the disclosing Party’s technology, business affairs, and marketing or sales plans. The Parties shall use Confidential Information only for the purpose of this Agreement. Service Marks, Trademarks and Publicity: Neither RCN nor Customer shall: (a) use any service mark or trademark of the other Party; or (b) refer to the other party in connection with any advertising, promotion, press release or publication unless it obtains the other Party’s prior written approval.
Assignment: Customer may not assign this Agreement without the express prior written permission of RCN, provided that consent shall not be unreasonably withheld. Acceptable Use Policy: Customer agrees to comply with RCN’s Acceptable Use Policy, as amended from time to time, regarding acceptable use of the ordered Services and other RCN applications, a copy of which can be viewed at rcn.com. Governing Law: This Agreement shall be governed by the laws of the State of New York without regard to its choice of law principles.
Notices: All notices (including Customer’s notice of disconnect), requests, or other communications (excluding invoices) shall be in writing and either transmitted via overnight courier, electronic mail, hand delivery or certified or registered mail, postage prepaid and return receipt requested to the Parties at the following addresses: Notices will be deemed to have been given when received.
Customer: see above RCN:
With a copy to:
Entire Agreement: This Agreement, together with any applicable Tariffs, constitutes the entire agreement of the Parties, and supersedes any written or oral prior agreements or understandings relating to the subject matter of this Agreement