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Business Shared Web Hosting | Business Television | Colocation | Ethernet Transport | Managed Dedicated Server | SONET Transport | Dark Fiber | Voice
RCN Managed Dedicated Server
Terms & Conditions
1. SERVICES PROVIDED
Subject to and under the terms and conditions herein, applicable RCN tariffs and service addenda (if any), RCN will provide the communications and telecommunications services (the “Service”) set forth in an order for Service (“Service Order”). For the purposes of this document, “Recurring” charges are monthly charges paid by the customer, and ”Non-Recurring” charges are one-time fees paid by the customer for such items, including, but not limited to, installation of service, special requests regarding services and/or special construction.
2. GENERAL
| (a) |
Customer understands that Services provided hereunder may be governed by certain Federal, State and Local regulatory authorities and by certain terms and conditions of service contained in any applicable RCN tariff on file with such authorities. In the event of any conflict between these Terms and those provided under any government regulations or applicable tariff, in all instances, the regulation or applicable tariff(s) shall prevail. |
| (b) |
Customer acknowledges that the Internet is a separate worldwide network of computers beyond the control of RCN, and RCN does not own, operate or manage the Internet. RCN assumes no responsibility for communications transmitted or actions taken by third parties over the Internet using the Services, including, without limitation, interception, distortion and loss of data, exposure to viruses, obscene or objectionable language or images, reception of false or misleading information or violation of copyright or privacy rights. |
3. PAYMENTS AND BILLING
Customer will be invoiced for installation within ______days of installation of Services (or on the first invoice). Service will be billed for a minimum period of thirty (30) days, consisting of twenty-four (24) hour days. Service will be invoiced monthly, due and payable within thirty (30) days after the invoice date. Material changes in circuit engineering, equipment specification, Service parameters, premises locations, or any other material modification from Customer’s application for Service will result in an adjustment of the installation fee. Past due amounts may be assessed a late charge at the lower rate of 1.5% per month or the highest lawful rate until the balance is paid in full. An additional charge will be assessed for any customer check returned as non-payable. Customer agrees to pay RCN any and all expenses (including reasonable attorney’s fees) associated with the collection of any amounts due from Customer hereunder.
4. TERM
These Terms and Conditions shall commence upon execution of the Service Order by an authorized representative of RCN and shall continue in full force and effect for the term set forth in the Service Order ("the Initial Term"). At the expiration of the Initial Term specified in each Service Order, Service shall continue on a month-to-month basis at RCN’s then-current rates for such Service. Termination shall not relieve Customer of the obligation to pay charges incurred under the applicable Service Order (and applicable tariff) prior to termination. The rights and obligations, which by their nature extend beyond the termination of the Term of the Service Order, shall survive the termination.
5. TERMINATION CHARGES
| (a) |
Customer may cancel a Service Order prior to the installation and establishment of Service, unless otherwise provided in any applicable RCN tariff. In the event of such cancellation, Customer agrees to pay RCN upon demand, a termination charge equal to the total costs and expenses incurred by RCN in connection with RCN’s performance to establish Service under the Service Order up to the date of termination, plus one month’s recurring charge. |
| (b) |
Other than as set forth in Section 11, Customer may not cancel a Service Order or terminate Service before the completion of the Initial Term for any reason whatsoever after RCN installs and establishes Service. In the event of such a cancellation or termination, Customer agrees to pay RCN a termination charge equal to: |
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| (i) |
all unpaid Non-Recurring charges expended by RCN to establish Service to Customer, plus; |
| (ii) |
any disconnection, early cancellation or termination charges incurred and paid to third parties by RCN on behalf of the Customer on account of the cancelled or terminated Service, plus; |
| (iii) |
all Recurring charges specified in the applicable Service Order for the balance of the then current term following the date of cancellation; and |
| (iv) |
minus a reasonable allowance for costs avoided by RCN as a direct result of Customer’s cancellation or termination. |
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The Customer understands that the rates and charges for Services are based in part upon the expectations that the Customer will continue to pay for such Services for a certain minimum period designated in each Service Order. RCN will calculate the termination charge for usage-based Recurring charges by multiplying the number of billing periods in the remaining Term by the average amount of the immediate three previous months’ invoices. For Service with a minimum usage guarantee, RCN reserves the right, and Customer agrees, to pay for the monthly minimum usage multiplied by the number of months remaining in the Term. If the Customer’s Service requires special facilities dedicated to the Customer’s use and Customer cancels the Service Order before completion of the Initial Term or such other extended period that RCN and Customer mutually agreed upon, Customer shall reimburse RCN for the non-recoverable portions of expenditures or liabilities incurred expressly on behalf of the Customer by RCN.
6. CANCELLATION BY CUSTOMER FOR CAUSE
Customer may terminate this Agreement or the applicable Service Order, without incurring liability, only upon RCN’s failure to correct a material failure of Service within thirty (30) days of RCN having received Customer’s written notice identifying the defect in Service.
7. CANCELLATION BY RCN
RCN may discontinue the provision of Service to a Customer or to a particular Customer location, or may withhold the provision of ordered or contracted Service, without incurring liability, on reasonable notice to Customer: for non-payment of any sum due to RCN for more than thirty (30) days after issuance of the bill for the amount due; or
| (a) |
for violation of any of the provisions of an applicable tariff; or |
| (b) |
for violation of any law, rule, regulation or policy of any governing authority having jurisdiction over RCN’s Services; or |
| (c) |
by reason of any order or decision of a court, public service commission or federal regulatory body or other governing authority prohibiting RCN from furnishing its Service. |
In addition, RCN may terminate or suspend Internet access provided by RCN as part of the Service immediately and without notice should RCN determine, in its sole discretion, that Customer has violated RCN’s Online Use Policies as posted on RCN’s web site, which RCN may amend from time-to-time, or generally accepted guidelines on Internet usage, including, without limitation, prohibitions against mass e-mailings and mass advertising.
8. FORCE MAJEURE
RCN shall not be liable for any delay or failure of performance or equipment due to causes beyond its control, including but not limited to: acts of God, fire, flood, explosion, or other catastrophes; any law, order, regulation, action or request of the United States Government, or of any other government, including state and local governments having or claiming jurisdiction over RCN, or of any department, agency, commission, bureau, corporation, or other instrumentality of any one or more of these federal, state, or local governments, or of any civil or military authority; national emergencies; insurrections; riots; wars; acts of terrorism, unavailability of rights-of-way or materials; or strikes, lock-outs, work stoppages, or other labor difficulties.
9. SPECIAL CONSTRUCTION
If the Customer requires special construction as part of RCN's provision of Service, Customer shall be responsible for all costs associated with such special construction. If Customer requests a change in location of all or part of the Service prior to the completion of construction or installation, Customer agrees to pay RCN all additional costs incurred from Customer's change in location.
10. SERVICE INTERRUPTION
RCN will provide credits for interruptions in Service as set forth below:
| (a) |
A credit allowance will be made when an interruption in Service occurs because of a failure of any component furnished by RCN under a Service Order or applicable tariff. An interruption period will be deemed to have begun four hours after the Customer reports a Service to be interrupted and releases it for testing and repair. An interruption period ends when the Service is operative. If the Customer reports a Service to be inoperative but declines to release it for testing and repair, it is considered to be impaired, but not interrupted and RCN will not issue credit. |
| (b) |
For calculating credit allowances, every month is considered to have thirty (30) days. RCN has a mean time to repair of four (4) hours (“MTTR”). A credit allowance is applied on a pro rata basis against the rates specified hereunder and is dependent upon the length of interruption beyond the MTTR. Only those facilities on the interrupted portion of the circuit will have a credit. |
| (c) |
RCN will have no obligation to provide credit for any interruptions in Service resulting from (i) Customer’s negligence and/or noncompliance with the provisions of applicable tariffs, (ii) operation or malfunction of facilities, power or equipment not supplied by RCN, and/or (iii) the acts or omissions of third parties with whom RCN contracts to provide Service. |
11. GENERAL PROVISIONS
| (a) |
No Warranties. UNLESS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, AN ADDENDUM OR APPLICABLE TARIFF, THE SERVICES PROVIDED BY RCN UNDER THIS AGREEMENT ARE “AS IS” WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE. |
| (b) |
Limitation of Liability. Customer’s exclusive remedy and RCN's sole liability for any interruption or failure of any Service furnished pursuant to this Agreement shall be limited to RCN's crediting the Customer the amount of actual charges incurred by the Customer on account of the interrupted Service. RCN shall not be liable for any interruption caused by any act or omission of any other carrier furnishing any portion of the Services. RCN shall not be liable for any act or omission of any entity furnishing to RCN or to RCN’s Customer’s facilities or equipment used for or with the Service RCN offers.
RCN’s LIABILITY SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO RCN UNDER THIS AGREEMENT. RCN SHALL HAVE NO LIABILITY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM ANY SERVICES PROVIDED HEREIN OR ANY INTERRUPTION OR FAILURE OF ANY SUCH SERVICE. RCN MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING AND NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO ANY SERVICE, FACILITIES OR EQUIPMENT PROVIDED PURSUANT TO THIS AGREEMENT. RCN assumes no responsibility for the availability or performance of any cable or satellite systems or related facilities under the control of other third parties, or for other facilities under the control of other entities used for service to the Customer, even if RCN has acted as the Customer’s agent in arranging for such facilities or services. Such facilities are provided subject to such degree of protection as may be provided by the other entities. |
| (c) |
Indemnification. Customer will indemnify and hold RCN, its affiliates, subsidiaries, parent entities, directors, officers, employees and representatives, harmless from and against any and all liabilities, obligations, losses, damages, expenses (including reasonable attorney's fees), injuries and claims of any kind whatsoever against RCN arising out of the acts or omissions of Customer, its agents, employees or representatives in connection with these Terms and Conditions, a Service Order or the use of RCN’s Service, including, but not limited to instances involving claims for libel, slander, invasion of privacy, or infringement of copyright arising from the Customer’s own communications, personal injury to or death of any person or persons, and for any loss, damage or destruction of any property, including environmental contamination, whether owned by the Customer or by any other party, cause or claimed to have been caused directly or indirectly by the installation, operation, failure to operate, maintenance, presence, condition, location, use or removal of any equipment, facilities or the Service provided by RCN. |
| (d) |
Taxes. In addition to the prices set forth in the Service Order, Customer shall pay any and all applicable Federal, State, or Local sales, use, privilege, gross receipts or excise tax and any such other tax, fee or surcharge, paid or payable by RCN, however designated, levied or based on RCN’s delivery of the Services to Customer. Such amounts shall not include taxes based upon the net income of RCN. |
| (e) |
Modification. This Agreement may only be amended, modified, or waived by written agreement executed by authorized signatories of the parties. |
| (f) |
Waiver. No waiver of any breach of this Agreement will be implied or deemed a waiver of any future breach. |
| (g) |
Governing Law. This Agreement shall in all respects be governed by and construed in accordance with the state law where the Service is provided, including all matters of construction, performance, and validity. |
| (h) |
Assignment. Customer may not assign any interest under these Terms and Conditions, in whole or part hereof, by operation of law or otherwise, without the express written consent of RCN. Each of the covenants, terms, provisions and agreements contained in these Terms and Conditions |
| (i) |
Severability. If any of these Terms and Conditions are declared to be illegal, invalid, or unenforceable as a matter of law, the same shall not invalidate the remaining Terms and Conditions, which shall be construed as if not containing such provision, and the rights and obligations of the parties shall be construed and enforced as if a commercially reasonable provision had been substituted in place thereof, consistent with the undertaking of the parties hereto. |
| (j) |
Headings. Introductory headings used herein are solely for the convenience of the parties and do not limit the contents of the respective Paragraphs hereof. |
| (k) |
Counterparts. These Terms and Conditions may be executed in one or more counterparts, each one of which shall be deemed an original and all of which together shall constitute one and the same instrument. |
| (l) |
Notices. All notices required hereunder shall be in writing sent first class mail, return receipt requested, or delivered by hand to the address of the party set forth on the Service Order or to such other address as such party may designate from time to time by such notice and shall take effect three (3) days from mailing if mailed, or (ii) when received, if delivered by hand. |
| (m) |
Billing Errors. The liability of RCN for errors in billing that result in overpayment by the Customer shall be limited to credit equal to the dollar amount erroneously billed or, in the event that payment has been made and Service has been discontinued, to a refund of the amount erroneously billed. |
| (n) |
Damage to Property. RCN is not liable for any defacement of or damage to Customer premises resulting from the furnishing of Services or equipment on such premises or the installation or removal thereof, unless such defacement or damage is caused by the gross negligence or willful misconduct of RCN’s agents or employees. |
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