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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 Corporation, 196 Van Buren Street,
Herndon, VA 20170.
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.
21. General:
(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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