1. Services: This Standard Service Agreement (“Agreement”) applies to the Customer’s purchase or use of international, interstate, intrastate and local communications and related services (“Services”) from RCN New York Communications, LLC and its affiliates (“RCN”). This Agreement does not apply to Services provided to Customer pursuant to a separate RCN term agreement or other contract currently in effect. RCN and Customer are referred to as “the Parties”.
2. 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 term, 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.
3. Payment Terms: (a) Customer shall pay for RCN services in accordance with this Agreement. RCN will invoice Customer in advance for all charges, including any recurring and non-recurring charges related to installation or Start of Services; provided, that usage charges will be invoiced one month in arrears. Unless otherwise specified on the Service Order, invoicing will begin upon the “Start of Service Date”, which shall be the later of the date requested by Customer for the beginning of Service, or the date the installed Services is accepted by Customer. Customer shall pay each invoice, less any charges disputed in good faith, 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, 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) Customer shall notify RCN of any disputed charges in writing no later than thirty (30) days after date of the invoice. The 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 the dispute 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, plus any late charge, 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.
4. Outage Credits: (a) Customer shall be entitled to a credit for periods of “Service Outage” for “On-Net” “Protected Services” greater than four (4) hours. The credit owed to a Customer for a Service Outage shall, for every full ½ hour period over four (4) hours, be calculated at 1/1440 of the MRCs applicable to that portion of the Service which is subject to the Service Outage. A Service Outage occurs when the Customer experiences a complete loss of connectivity or disruption of Service, or a degradation of the Service materially below RCN’s technical specifications. A Service Outage begins when RCN is notified by Customer through the submission of a trouble ticket to RCN’s Network Operations Center (“NOC”) or RCN becomes aware of the failure, whichever occurs first. A Service Outage ends when the affected circuit, line and/or Service is operative. The total Outage time is calculated by taking the difference between the Outage start time and ending time less any delay time associated with RCN's inability to access the Customer or End User Premise. Credits shall not be issued for 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; (vi) a Planned Service Outage, unscheduled Emergency Maintenance, or scheduled Maintenance, (vii) “Off-Net” Services, or (viii) “Unprotected” Services. For purposes of this Agreement, “On-Net Services” are those services that solely utilize RCN’s network and equipment. “Off-Net Services” are those services that utilize the network of both RCN and a provider of RCN’s choice. “Protected Services” are those services that have been designated by RCN as having full redundancy of route, facilities and power and have card protection (i.e., diversely routed facilities, power back-up and card protection). “Unprotected Services” are those services designated by RCN that are not fully redundant in route and/or power or do not have card protection (i.e., flatly routed facilities without power back up or card protection).
(b) To be eligible for an Outage Credit, Customer must submit a request for credit in writing within sixty (60) days of the occurrence. Requests for credits must include the Trouble Ticket Number and Circuit ID or any claim for an allowance is waived. Unless otherwise specifically stated in any Service Order, Service Outages are not aggregated for purposes of determining the credit allowance. All Service Outage Credits are capped at no more than 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.
5. 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.
6. Termination Rights: (a) 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.
(b) 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.
7. Early Service Termination: Customer may cancel an individual Service Order prior to Acceptance by RCN of the ordered Service under that Service Order, but Customer shall be obligated to pay to RCN, within thirty (30) days of the invoice date, any set up costs and expenses incurred by RCN to prepare and deliver such service. If (a) Customer terminates this Agreement or any individual Service Order during the Initial Term for reasons other than Cause, or (b) RCN terminates this Agreement or any individual Service Order for Cause, then Customer will pay RCN, within thirty (30) days after such termination, (i) all past due but unpaid charges and interest incurred through the date of termination, plus (ii) the sum of: (A) one hundred percent (100%) of any unpaid monthly recurring charge (“MRC”) that would have been incurred for the ordered Service for months 1-6 of the ordered term, plus (B) seventy-five percent (75%) of any unpaid MRC that would have been incurred for the ordered Service for months 7–12 of the ordered term, plus (C) fifty percent (50%) of any unpaid MRC that would have been incurred for the ordered Service for the remaining months of the ordered term; plus (D) any disconnection, early cancellation or termination charges incurred and paid to third parties by RCN on behalf of Customer; plus (E) any additional amount specifically set forth in a 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.
8. Disconnection Requests: Customer shall submit all requests for disconnection of services to RCN via email addressed rcnbizdisconnects@rcn.net. Each disconnection request must specify the Customer name, name of person authorizing the disconnect, the contact information (name, address, email address and telephone number) of the person authorizing Customer’s disconnect, the circuit ID number on the Service to which the disconnect request applies, service type and requested disconnection date. RCN shall have no fewer than thirty (30) days from the date of receipt of Customer’s disconnection notice delivered in accordance with this provision to complete the disconnect. Billing for Service continues and the Customer’s obligation to pay continues until disconnection.
9. 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 for the affected service during the twelve (12) month period immediately preceding the month in which the circumstances giving rise to the claim occurred.
10. 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: (a) 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; (b) claims for patent infringement arising from combining or connection of facilities to use RCN’s network; (c) claims for damage to property and/or personal injuries (including death) arising out of the negligence or willful act or omission of Customer; and (d) claims that the content or the actions of Customer violate any law or regulation.
11. Disclaimer of Warranties: EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, RCN MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY RCN SERVICES, 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.
12. 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.
13. Force Majeure: Neither Party shall be liable, nor shall any credit or other remedy be extended, for any failure to fulfill 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.
14. No Joint Undertaking: The provision of any Service by RCN does not constitute a joint undertaking with Customer to furnish service to any other party. RCN does not undertake to make RCN’s Services available to any person or entity other than Customer. RCN and Customer are independent parties and shall not be deemed or construed, by virtue of this Agreement, to be the employee, representative, partner, or joint venturer of the other.
15. 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 or 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 the expiration or other 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 methods to be used for such relocation. Relocation shall not effect 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.
16. 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.
17. 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.
18. Customer Proprietary Network Information (“CPNI”): Customer agrees that RCN may release to Customer's representatives call detail, billing information and other CPNI associated with the Services without establishing a password for authentication purposes. Customer agrees that RCN may rely, in lieu of a password, on the use of account information (including, but not limited to, account number, billing address, contact name(s), and identification of Services) and other commercially reasonable processes to authenticate Customer's representatives who contact RCN's dedicated account representative(s) to request CPNI. Customer acknowledges that this alternative authentication regime is for Customer's convenience, and, if Customer elects not to require the use of a password, Customer assumes the risk of inadvertent or unauthorized disclosure of CPNI. Customer has a right, and RCN has a duty, under federal law to protect confidentiality of CPNI. Customer may request that RCN implement password protection for Customer's CPNI at any time upon written notice. Customer further acknowledges that RCN, its agents and its affiliates that provide communications-related services may access, use and disclose Customer's CPNI to market communications-related services to Customer, unless and until Customer "opts-out" as provided in the annual RCN Customer Privacy Rights Notice. RCN may share Customer's CPNI with its independent contractors and/or joint venture partners for purposes of marketing new or additional Services and in connection with Customer's current Services. Customer expressly consents ("opts-in") to such use of its CPNI by its signature below, unless and until Customer revokes or denies such consent by written notice to RCN. Customer may deny or withdraw access to CPNI for marketing purposes at any time, and such denial of consent shall not affect the provision of current Services.
19. Assignment: Customer may not assign this Agreement without the express prior written permission of RCN, provided that consent shall not be unreasonably withheld. RCN may assign this Agreement in whole or in part to any successor or affiliate upon written notice to Customer.
20. Governing Law: This Agreement shall be governed by the laws of the State of New York without regard to its choice of law principles.
21. Notices: All notices (including copies of any Customer notices of disconnect provided as set forth in Section 8), 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:
At the Customer’s address of record
RCN:
RCN New York Communications, LLC
55 Broad Street
New York, New York 10004
Attn: Vice President, Sales
With a copy to:
RCN New York Communications, LLC
196 Van Buren Street
Suite 300
Herndon, Virginia 20170
Attn: Legal Department
22. Entire Agreement, Tariffs and Web-Based Terms: This Agreement, including Exhibits and applicable Service Orders, tariffs, and RCN’s standard Policies and Disclaimers (including its Acceptable Use Policy), 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. 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, to the extent applicable, (b) any separate written term agreement between the Parties, supplemented by any amendments and Service Orders, (c) this standard Agreement, and (d) RCN’s Policies and Disclaimers.
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