RCN BlackBerry End-User Agreement
Before you begin to use the quantity of the BlackBerry Handheld devices ordered by You (the "Product(s)"), to purchase associated service(s) ("Service(s)") and to license certain associated BlackBerry software("Software"), you ("You", "Your" and "Yourself") must review the following terms and conditions of RCN BLACKBERRY END-USER AGREEMENT (the "Agreement"). These terms and conditions explain RCN's obligations to You, and explain Your obligations to RCN when you use the Products and Services hereunder and will constitute a binding contract between you and RCN. RCN is providing you with the Product(s) and Service(s) in consideration of your agreement to abide by these terms and conditions.
1. Agreement to supply Product(s) and Service(s) and to license Software: Subject to RCN's acceptance of Your Order, Your payment of the required initial price and Your commitment to pay any monthly or other periodic fees or costs in RCN's schedule of prices and fees, RCN will supply You the BlackBerry Solution(s) and any additional accessories or Service(s) You order. A BlackBerry Solution may comprise any one or more of the following: the BlackBerry ISP Server Software, a BlackBerry Handheld, a cradle, the BlackBerry Desktop Software, associated accessories and documentation and a flat rate subscription for airtime.
2. Fees. Upon RCN's acceptance of Your Order, any approved credit card account provided by You will be charged the applicable initial amounts, including the fee to activate your BlackBerry Solution referred to as the "Activation Fee", subsequent periodic amounts as they become due and any other charges authorized by you hereunder (collectively, "the Charges"). PLEASE NOTE THAT UNTIL THIS AGREEMENT IS TERMINATED, YOUR ACCOUNT WILL BE CHARGED THE APPLICABLE MONTHLY FEE(S) AND OTHER CHARGES AUTHORIZED BY YOU HEREUNDER. YOUR ACCEPTANCE OF THESE TERMS CONSTITUTES YOUR CONSENT TO PERIODIC CHARGES AND OTHER CHARGES AUTHORIZED BY YOU HEREUNDER BY RCN TO THE CREDIT CARD NUMBER PROVIDED BY YOU, AND YOU EXPRESSLY AUTHORIZE RCN TO CHARGE ANY AND ALL AMOUNTS YOU OWE RCN TO THAT ACCOUNT AND TO DEMAND IMMEDIATE PAYMENT FOR SUCH AMOUNTS FROM THE CREDIT CARD ISSUER. All applicable excise, value added, utility, sales, goods and services or use taxes and any applicable surcharges, assessments or government fees (collectively, "Taxes and Fees") shall be for Your account and charged to Your credit card. RCN reserves the right to bill Taxes and Fees separately. RCN may, in its sole discretion, extend credit to You as a courtesy, You acknowledge and agree that RCN has no obligation to provide credit to You, and the provision of credit shall in no way modify the terms of this Agreement.
3. Payments, Credit Card, Checks: Except for Charges due and payable at the time the Order is placed, Charges shall be charged to Your credit card within (30) thirty days from the date Charges are incurred. If a charge to Your credit card is denied or, in the case of any payment by check, Your check is returned unpaid, You shall immediately give RCN an alternative method of payment and pay a $25.00 administrative charge. If You do not provide an alternative method of payment, RCN will cancel Your Service(s) and begin collection proceedings.
4. Late Payments: If RCN does not receive Your payment when due, You shall pay interest at the rate equal to the lesser of (i) 15% per year, calculated and payable monthly or (ii) the highest rate allowed by law, on all due and unpaid amounts. Acceptance of late or partial payments (even if marked by You as "Paid In Full") shall not waive any of RCN's rights to collect all amounts due. You waive any objection with respect to any RCN charge or fee if You fail to provide RCN written notice of such objection within thirty (30) days from the date such charges or fees are first charged against your charge card. You agree You shall pay to RCN $25.00 per BlackBerry Handheld to reconnect Service(s) terminated under this Agreement.
5. Title: You agree that title to all BlackBerry Handhelds and cradles shall remain with RCN. You agree to bear all risk of loss and/or damage with respect to such BlackBerry Handheld and/or cradle from the date of delivery of the BlackBerry Solution(s) to You and until the date RCN receives such BlackBerry Handhelds and cradles from You in good working order and condition and free from damage.
6. Lost or Stolen Handhelds: In the event Your BlackBerry Handheld device is damaged (other than normal wear and tear), lost, stolen or otherwise absent from Your possession and control, You shall nonetheless be liable for all Charges attributable to such device until this Agreement is terminated in accordance with Section 15, including, but not limited to a fee ("Device Fee") no greater than the then current retail price for such device. This Agreement shall not terminate solely because Your device is lost, stolen or otherwise unavailable.
7. E-mail system: Except as the Parties specifically agree in writing, You shall be solely responsible for the selection, implementation, and performance of any and all third-party equipment, software and telecommunication equipment and services (including, without limitation, Internet e-mail connectivity) used in connection with the BlackBerry Solution. You represent and warrant that the e-mail system and computer with which You choose to operate the BlackBerry solution meets RCN's minimum standards for interoperability, including, without limitation, processing speed, memory requirements, the choice of e-mail server and client software and the use of dedicated Internet access for accessing Internet e-mail.
8. Use of Service: You represent and warrant that You shall only use the airtime component of the BlackBerry solution for the sending and receipt of electronic messages and not in any manner so as to degrade any service. You also represent and warrant that You shall abide by the terms of the RCN Internet Access Agreement and Online Policies, exclusive of its pricing, billing, and payment provisions. Please familiarize yourself with RCN Internet Access Agreement.
9. Software: The BlackBerry Software is an integral part of the BlackBerry Solution, and You acknowledge and agree that the Software contains valuable intellectual property and You agree to comply with all terms contained in the applicable Software License Agreement provided with the Software.
10. Services: The flat rate airtime Service is provided through an agreement between RCN and the supplier of the BlackBerry Solution, Research In Motion, Inc. ("RIM"). WITH RESPECT TO SUCH AIRTIME SERVICES, AS STATED IN SECTION 17 BELOW, SUCH SERVICES ARE PROVIDED "AS IS"AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND. RCN SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY THIRD PARTY CLAIMNG BY OR THROUGH YOU, FOR THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF SUCH THIRD PARTY SERVICES.
11. Security: The BlackBerry Solution includes a commercially acceptable level of encryption data security for communications between Your BlackBerry Handheld and the computer system with which it operates. You assume full responsibility for the establishment of appropriate security measures to control access to Your BlackBerry Handheld and such computer system.
12. Term of Agreement: The term shall begin upon delivery of a BlackBerry Solution to You, and unless sooner terminated in accordance with this Agreement, shall continue for one month ("Initial Term"). Unless a Party terminates this Agreement in accordance with Section 14, the Initial Term shall automatically renew for successive one (1) month periods (each a "Renewal Term") at the then current rates. You acknowledge and agree the Activation Fee and any applicable Service fees shall be non?cancelable, subject to Section 13 below.
13. Money Back Guarantee: If You are not satisfied with the Service provided to You hereunder for any reason during the first thirty (30) days following activation (the "Money Back Guarantee Period"), and provided you return each applicable BlackBerry Solution (excluding Service(s)) in its original package in good condition (the "BlackBerry Package"), RCN shall refund to you an amount equal to the lowest amount paid by You for such BlackBerry Solution, less the Activation Fee and shipping and handling. If You do not return all such BlackBerry Package(s), You agree You will pay RCN the applicable Device Fees, less any refund due You. If returning a BlackBerry Package, You must first obtain a return authorization number from RCN by calling 1 (877) 255?2377 during the Money Back Guarantee Period. You are allowed a seven-day grace period following your receipt of such number in order to return the BlackBerry Package, at your expense, and take advantage of this Money Back Guarantee.
14. Events of Termination:
A. Termination by You: You may terminate this Agreement in accordance with Section 12 above and receive a refund as set forth below. If You were eligible for the Money Back Guarantee, You may initiate the termination of this Agreement by providing notice to RCN of Your intent to terminate this Agreement and returning to RCN the applicable BlackBerry Package(s) at Your expense such that the BlackBerry Package(s) are received by RCN prior to the commencement of the next Renewal Term or paying all applicable Device Fee(s). The Agreement shall then terminate upon Your payment of all outstanding Charges and taxes (if any), any unpaid interest charges, returned check and rejected charge fees, reconnection charges and any applicable Device Fee(s) ("Final Charges"). Any charges for the next Renewal Term ("Applicable Term") that would commence after RCN's receipt of the returned BlackBerry Package(s) and/or receipt of Your termination notice, shall not be assessed or charged to Your credit card unless the final Charges are not paid within thirty (30) days from the date of such final Charges become due.
B. Termination for Convenience by RCN: RCN may terminate this Agreement for convenience at any time. Should RCN terminate this Agreement for convenience during your Money Back Guarantee Period, RCN shall pay to you the initial amount you paid to RCN for your BlackBerry Solution less any Activation Fee and Device Fee for any BlackBerry Package(s) you fail to return within seven (7) days from RCN's written notice of termination. If RCN terminates for convenience at any time after the Money Back Guarantee period, You are not entitled to any refund. In the event of termination by RCN, You shall pay all final Charges for Service(s) provided to you hereunder.
C. Remedies and Termination for Default: If You are in default of any obligation under this Agreement RCN may, in addition to all other rights and remedies provided by this Agreement or by law, terminate this Agreement by providing written notice of termination. Events of Default shall include, without limitation, failure to perform a term or condition contained herein (including Your failure to pay any sums due and payable as and when required, providing a false statement or representation made for the purpose of obtaining the Service(s) or to obtain credit from RCN, insolvency, failure to pay debts as they come due, or if You become subject to any proceeding under the U.S. Bankruptcy Code, insolvency or similar laws). If RCN is prevented from providing any portion or all of any Service by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental authority, or if a notice from a government agency or department indicates either RCN is not permitted to provide any portion or all of the Airtime Services, RCN may immediately cease providing the Service(s) without any liability whatsoever to You. Nothing herein shall be construed to require RCN to seek a waiver of any, law, rule, regulation, or restriction, or seek judicial review or appeal of any court order. In addition, You UNDERSTAND, ACKNOWLEDGE AND AGREE THAT RCN MAY TERMINATE THIS AGREEMENT WITHOUT NOTICE AND DEMAND RETURN OF ANY BLACKBERRY HANDHELD, IF YOU ARE IN DEFAULT AND/OR IF (1) You pay late more than once in any twelve (12) month period; (2) You or any user of Your BlackBerry Solution (or any component thereof) interfere with customer service or business operations; (3) You use the Service(s) in a way that has a detrimental effect upon RCN, its customers or "Product(s) and Service(s) RCN provides; (4) You transmit, harassing, abusive, libelous, illegal or deceptive messages: (5) You use any Product or Service or Software in any, manner inconsistent with the Safety Instructions found in the BlackBerry User's Guide or to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious act; (6) You use, or attempt to use the BlackBerry Solution or any component thereof in contravention of the terms of the Limited Warranty or the Software License Agreement, each of which is included in the BlackBerry User Guide, and/or You attempt to reverse engineer the BlackBerry Handheld or decompile or disassemble the BlackBerry Software; or (7) You cancel the credit card to which monthly or other periodic payments are to be charged or the authorization for such payments and You fail to provide RCN with an alternative method of payment. If You do not return a BlackBerry Handheld and its associated cradle (or a BlackBerry Package) within seven (7) days from the date of termination of this Agreement in good working order and condition, free from damage (physical or otherwise) and with all necessary components, You shall be required to pay a Device Fee for each item that You fail to so return. Without regard to the Party terminating this Agreement, any final Charges unpaid within thirty (30) days from the date due will be assessed monthly for Service(s) and user fees until RCN's receipt of Your payment of the final Charges and Devise fees.
15. Indemnity/Liability: You shall defend, indemnity, and hold harmless RCN, RCN's suppliers, including RIM, and its and their successors, affiliates, agents and assigns from any claims, damages, losses, or expenses (including without limitation attorney fees and costs) incurred by RCN, RIM or RCN's suppliers in connection with all claims, suits, judgements and causes of action (i) for infringement of patents or other proprietary rights arising from, combining with or using any device, system or service in connection with the BlackBerry Solution or any portion thereof (ii) for libel, slander, defamation or infringement of copyright or other proprietary rights with respect to material transmitted by You using the BlackBerry Handheld or (iii) injury, death or property damage arising in connection with the presence, use or non-use of the Service(s) or the Product(s). No remedy herein conferred upon RCN is intended to be, nor shall it be construed to be, exclusive of any other remedy provided herein or as allowed by law or in equity, but all such remedies shall be cumulative. In the event of the termination of this Agreement pursuant to Section 14, you shall pay to RCN all attorney fees, collection fees, and related expenses, expended or incurred by RCN in the enforcement of any right or privilege hereunder (including, but not limited to, telephone, freight, express and postal charges, expenses of paid investigators and reasonable compensation for time of RCN's representatives).
16. Limited Warranty.
(a) SERVICE(S): EACH OF THE SERVICES (INCLUDING AIRTIME SERVICES) IS PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND. RCN DOES NOT WARRANTY UNINTERRUPTED USE OR OPERATION OF ANY SERVICE, OR THAT ANY DATA SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME. ALL REPRESENTATIONS, WARRANTIES, ENDORSEMENTS AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE OR NON-INFRINGEMENT AND ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABLE QUALITY AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE HEREBY EXCLUDED. RCN SHALL HAVE NO LIABILITY TO YOU FOR PATENT OR COPYRIGHT INFRINGEMENT OR MISAPPROPRIATION OF TRADE SECRETS WITH RESPECT TO ANY SERVICE PROVIDED BY ANY THIRD PARTY THROUGH RCN. YOUR RECOURSE IN THE EVENT OF ANY SUCH CLAIM WITH RESPECT TO ANY SERVICE SHALL BE SOLELY AGAINST SUCH THIRD PARTY.
(b) Product(s): The Product(s) are the subject of a limited warranty ("Limited Warranty") set forth in the BlackBerry User's Guide. The Limited Warranty is the exclusive warranty for any products provided under the terms of this Agreement. Your acceptance of these provisions indicates that you have read the Limited Warranty and agree to its terms.
(c) Software: The Software and the use thereof is governed under the terms of the Software License Agreement contained in the applicable BlackBerry Users Guide and presented for approval during the execution of the BlackBerry Software. The Software License Agreement sets forth a limited warranty with respect to the Software, which is the exclusive Warranty for any Software licensed under the terms of this Agreement. Your acceptance of these provisions indicates that you have read the applicable Software License Agreement and agree to its terms, including, without limitation, the warranty terms.
17. Limitation of Liability:
(a) Your sole remedies for loss or damage caused by partial or total nonperformance of the BlackBerry Solution or any component thereof, or for delay or nonperformance of any Product(s) and/or Service(s) or partial or total failure of any Service(s) under this Agreement, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, shall be Your direct damages, if any, and shall not in any event exceed the amount paid by You under this Agreement for the BlackBerry Product(s) and/or Service(s) that give rise to the claim for the period such failure, delay or nonperformance occur. RCN SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY PARTY CLAIMING BY OR THROUGH YOU FOR THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF ANY SERVICE OR PRODUCT OR FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE BLACKBERRY SOLUTION OR ANY COMPONENT THEREOF FOR MISSION?CRITICAL OR EMERGENCY COMMUNICATIONS.
(b) Your sole remedy for loss or damage, whether direct or indirect, caused by partial or total failure, inability to use or nonperformance of the Software, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, shall be as set forth in the Software License Agreement provided with the Software.
AS A MATERIAL PART OF THE CONSIDERATION PAID BY YOU UNDER THIS AGREEMENT, YOU AGREE THAT IN NO EVENT SHALL RCN BE LIABLE TO YOU OR ANY PARTY CLAIMING THROUGH YOU FOR, AND YOU HEREBY WAIVE YOUR RIGHT TO CLAIM, ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, BUSINESS OR REVENUES, LOSS OF THE USE OF THE BLACKBERRY HANDHELD, OR ANY ASSOCIATED PRODUCTS, LOSS OF DATA, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT SERVICES, DOWNTIME COSTS OR THE CLAIMS OF YOUR CUSTOMERS FOR SUCH DAMAGES) DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT OF THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN. THE FOREGOING DISCLAIMER SHALL APPLY IN CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO YOUR INABILITY TO USE THE BLACKBERRY SOLUTION OR ANY PART THEREOF EITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER COMMUNICATIONS BY OR THROUGH RCN AND TO UNAUTHORIZED ACCESS TO YOUR DATA TRANSMITTED VIA COMMUNICATION LINKS PROVIDED BY OR THROUGH RCN AS PART OF THE SERVICE(S).
18. Assignment and Delegation: RCN may assign this Agreement without notice to You. You shall not assign this Agreement. RCN may perform all obligations to be performed under this Agreement directly or may have some or all obligations performed by its contractor or subcontractors.
19. Notices: Except as otherwise provided in this Agreement, all notices or other communications hereunder shall be deemed to have been duly given when made in writing and delivered in person or deposited in the United States mail, postage prepaid, certified mail, return receipt requested, and addressed to You at such address given by you to RCN as your physical address, and addressed to RCN Telecom Services, LLC 650 College Road East, Suite 3100, Princeton, NJ 08540.
20. Force Majeure: Notwithstanding any other provision of this Agreement, neither Party shall be deemed in default of this Agreement for failure to fulfill its obligations when due to causes beyond its reasonable control. This provision shall not be construed as excusing nonperformance of any obligation by either Party to make payment to the other Party under this Agreement.
(a) No Third Party Beneficiaries: Except as otherwise specifically stated in this Agreement, the provisions herein are for the benefit of the Parties and not for any other person or entity.
(b) Waivers of Default: Waiver by either Party of any default by the other Party shall not be deemed a continuing waiver of such default or a waiver of any other default.
(c) Survival: The terms, conditions and warranties contained in this Agreement that by their sense and context are intended to survive the performance hereof by either or both Parties shall so survive the completion of performance, cancellation or termination of this Agreement.
(d) Governing Law: The Agreement shall be construed in the United States in accordance with the laws of the State of New Jersey applicable to Agreements executed and wholly performed within that State without giving effect to any body of law governing conflicts of laws. This Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded.
(e) Severability: If a provision of this Agreement shall be Invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather (unless a failure of consideration would result therefrom) the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of each Party shall be construed and enforced accordingly.
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