RealConnect and Customer hereby agree that the following terms and
conditions shall apply to this accepted Agreement.
1. SERVICES. RealConnect shall provide and Customer shall accept
the services designated on the first page of this Agreement, attachments, or by subsequent
agreement (the "Services"). RealConnect provides a backbone Internet service
that is available and functioning 99.9% of the time excepting scheduled maintenance
downtime. The backbone includes network infrastructure, leased lines, telecommunications
equipment, and routers. The backbone excludes local loops and Customer premise equipment,
and does not include destinations beyond RealConnect's infrastructure. Under normal circumstances, RealConnect will perform basic problem determination to isolate problems to local loops or Customer premise equipment, however uptime and response on these portions of the network are not covered by the provisions contained in Section (4) below.
2. COMMENCEMENT OF SERVICES. The Services provided hereunder shall
commence in accordance with the schedule(s) set forth on the first page of this Agreement.
3. PRICE AND PAYMENTS. Customer agrees to pay RealConnect
for the Services at the rates specified on the first page of this Agreement and on
Attachment A, or in RealConnect's standard rate card, as appropriate, all without
deduction, setoff or counterclaim. Customer's recurring rates may be subject to an annual
increase not to exceed six percent (6%). One-time charges shall be billed at the end of
the month in which they are incurred. Monthly recurring charges shall be due in advance on
the first day of the month in which Services will be provided. Charges become due and
payable upon receipt by Customer of RealConnect's invoice. Failure to pay any sum when
due, after three (3) days written notice to Customer, may result in interruption of
Services or termination of this Agreement as provided below. A charge of one and one-half
percent (1 1/2%) of the amount owed shall be added for each month that payment(s) are not
made after the thirty-first day from the date of the invoice. Customer shall be deemed to
have approved RealConnect's invoice if it fails to object in writing to the invoice within
Sixty (60) days after the invoice date.
4. INSTALLATION AND MAINTENANCE. RealConnect shall maintain the
Services in good working order and repair. Customer shall provide access to its premises
during normal business hours or otherwise for the purposes of allowing RealConnect and its
agents to install, operate and maintain the Services. Routine maintenance shall be
provided during normal business hours (i.e., 8:00 a.m. to 5:00 p.m., Monday through
Friday, except legal holidays) ("Business Hours"). Subject to Section (h) below,
RealConnect will respond to a Customer trouble report within (a) two (2) hours after
receipt by RealConnect of telephone notice of a Major Failure (i.e., malfunction which
substantially impairs Customer's ability to use the Services), provided such failure
occurs during Business Hours; (b) four (4) hours after receipt by RealConnect of telephone
notice of a Minor Failure (i.e., malfunction which impairs Customer's ability to use an
essential portion of the Services) during Business Hours; and (c) eight (8) hours during
Business Hours or the next business day, after receipt by RealConnect of telephone notice
of a Noncritical Failure (i.e., a malfunction which affects the quality but not the
availability of the Services). RealConnect reserves the right to upgrade, repair and/or
replace all or any portion of the system software, hardware and equipment used to provide
the Services in the exercise of its technical judgment. Interruptions of the Services
during hours other than Business Hours associated with such actions shall not be
considered as an interruption of Services. The provision of maintenance does not insure
uninterrupted operation of the Services.
5. CONTRACT RENEWAL. Unless otherwise advised in writing,
this contract will be automatically renewed at the end of the initial contract. If it is
the Customer's intention to terminate the service at the end of the term, or any renewal
term thereof, the Customer shall provide RealConnect with at least 60 days prior notice in
writing. If the contract is automatically renewed and there has been a change in pricing,
other than what is stipulated in Section (3) above, RealConnect will send to Customer a
renewal notice 30 days prior to the expiration of the term.
6. TITLE TO EQUIPMENT AND RISK OF LOSS. As between
RealConnect and Customer, RealConnect shall retain title to any and all equipment outside
the Customer premises, wiring or software provided or used in connection with the
Services. RealConnect shall bear the risk of loss or damage to any equipment provided in
connection with the Services, except that Customer shall be liable to RealConnect for the
cost of repair or replacement of equipment, wiring and software lost, stolen or damaged as
a result of Customer's negligence, intentional acts, unauthorized installation or
maintenance or other causes within the reasonable control of Customer, its employees,
agents or invitees.
7. FORCE MAJEURE. RealConnect shall not be responsible for
any nonperformance or delay in performance of any of the requirements set forth in this
Agreement due to any cause beyond its control.
8. TAXES. Customer shall pay any and all taxes, surcharges
and similar charges imposed on or based upon the provision or use of the Services or
equipment provided under this Agreement, and shall indemnify, defend and save harmless
RealConnect from any and all such taxes, surcharges and similar charges, and from any and
all penalties resulting from any failure to file the required returns and associated
filings and payments.
9. LIMITATION OF LIABILITY; INDEMNITY BY CUSTOMER.
(a) REALCONNECT SHALL NOT BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY
INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST INCOME
OR LOST REVENUE, LOST CLIENTS, LOST GOODWILL, LOST PROFITS, INCREASED COSTS AND OTHER LOSS
OR DAMAGES (WHETHER SUCH LOSSES OR DAMAGES WERE FORESEEN OR NOT AT THE TIME THIS AGREEMENT
WAS ENTERED INTO), SUSTAINED OR INCURRED IN CONNECTION WITH THE EQUIPMENT AND SERVICES
FURNISHED UNDER THIS AGREEMENT OR ANY PERFORMANCE OR NON-PERFORMANCE BY REALCONNECT IN
CONNECTION WITH THIS AGREEMENT. THIS LIMITATION APPLIES TO CLAIMS FOUNDED ON BREACH OF
CONTRACT, BREACH OF WARRANTY, PRODUCTS LIABILITY, TORT, INCLUDING BOTH THE ACTIVE AND
PASSIVE NEGLIGENCE OF REALCONNECT, OR ANY OTHER THEORY OF LIABILITY. REALCONNECT MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY OF THE EQUIPMENT
OR SERVICES PROVIDED UNDER THE TERMS OF THIS AGREEMENT, AND ALL SUCH WARRANTIES ARE
(b) The liability of RealConnect for direct damages including, without
limitation, injuries to persons or property, arising out of mistakes, acts, omissions,
interruptions, delays, errors or defects in transmission occurring in the course of
furnishing Services and not caused by the negligence of the Customer or Customer-provided
equipment, or arising out of the failure of RealConnect to maintain proper standards of
maintenance and operation and to exercise reasonable supervision, shall not exceed an
amount equivalent to the proportionate charge under this Agreement to the Customer for the
period of time during which such mistake, act, omission, delay, error or defect in
transmission occurs as calculated on a pro rata basis in quarter hour increments using a
thirty (30) day month as the base period.
(c) RealConnect shall not be liable for any defacement of or damage to
the Customer's premises or equipment of the Customer or others resulting from the
furnishing of Services or equipment by RealConnect on such premises or by the installation
or removal thereof, unless such defacement or damage is the result of negligence of the
agents or employees of RealConnect.
(d) Customer shall indemnify and hold RealConnect harmless from any and
all claims, liabilities, suits, damages and losses ("Liabilities") arising under
this Agreement or from any acts or omissions of or occasioned by Customer, its servants,
agents or employees, in connection with this Agreement or the Services hereunder,
including, without limitation, reasonable attorney's fees, court costs, and other
incidental litigation costs incurred in connection with any such Liabilities. Without
limiting the foregoing, Customer hereby indemnifies and holds RealConnect and its agents
and employees harmless from, and agrees to be responsible for, all losses, damages and
liabilities resulting from unauthorized use of the Services by anyone.
10. COST OF COLLECTION. Customer shall be liable to
RealConnect for any costs incurred by RealConnect in collecting any amount due under this
Agreement or in enforcing any obligation under this Agreement, including, without
limitation, collection agency costs, reasonable attorney's fees, and court costs, if any.
11. TERMINATION AFTER SERVICE COMMENCEMENT.
(a) By Customer
(1) Customer may terminate Services or portions thereof subject to
payment of a termination charge equal to the amount of the total net present value of the
monthly recurring charges under this Agreement for such terminated services (which shall
be equal to the higher of the amount of the monthly recurring charges under this Agreement
for the terminated portion of the Services (as enumerated in Section 1 on the first page
of this Agreement), or the amount of the highest preceding month's invoice for monthly
recurring charges under this Agreement for the terminated Services) that would have been
payable, but for the termination, in each of the months remaining on the Service Term
after the date of such termination. Customer shall also pay all Services charges accrued
for Services or portions of Services terminated which have been rendered through the
(2) Customer may terminate portions of Services and substitute other
Services without incurring a termination charge, provided that the total monthly recurring
charges(s) under this Agreement for the substituted portions of Services are equal to or
higher than the total monthly recurring charges for the terminated portions of Services.
If the total monthly recurring charges(s) for the substituted portions of Services are
less than the total monthly recurring charges for the terminated portions of Services,
Customer will be subject to a termination charge equal to the net present value of the
amount of the difference between the total monthly recurring charges for the terminated
portions of Services and the total monthly recurring charges for the substituted portions
of Services, which would have been payable, but for the partial termination, in each of
the months remaining on the Service Term after the date of such partial termination.
(3) Customer may terminate this Agreement without liability for any
termination charge if RealConnect fails to perform any material condition of this
Agreement and such failure continues for a period of thirty (30) days after receipt by
RealConnect of a written notice from Customer specifying the nature of such failure;
provided Customer shall pay in full all charges for Services rendered through the
(b) By RealConnect
(1) Services may be terminated by RealConnect in the event Customer
fails to perform any obligation to make any payments under this Agreement and such failure
continues for a period of three (3) days after receipt by Customer of a written notice
from RealConnect, specifying the nature of such failure. Services may be terminated by
RealConnect in the event that Customer fails to perform any other condition or obligation
under this Agreement and such failure continues for a period of ten (10) days after
receipt by Customer of written notice from RealConnect, specifying the nature of such
failure, except that in the event of abuse or fraud by Customer or its agents or employees
with respect to the Services or the system providing them, RealConnect shall have the
right to terminate this Agreement and the Services on three (3) hours notice (oral or
written) to Customer. In the event Services are terminated pursuant to this subsection
(l2)(b)(1), Customer shall be liable for a termination charge calculated pursuant to
subsection (l2)(a)(1) above.
(2) Services may be terminated by RealConnect in the event RealConnect
determines that the Services are no longer commercially feasible; provided, RealConnect
shall provide sixty (60) days written notice to Customer prior to such termination.
12. LIQUIDATED DAMAGES. Customer agrees that the termination
charges specified in subsections (l2)(a)(1), (l2)(a)(2) and (l2)(b)(1) above shall
constitute liquidated damages and not a penalty, since the precise amount of such damages
cannot be determined in advance.
13. ASSIGNMENT. This Agreement is not assignable by Customer
without the prior written consent of RealConnect. RealConnect may, without Customer's
consent, assign this Agreement or any portion hereof to an affiliate, joint venturer,
subsidiary or third party.
14. SUBCONTRACTING. RealConnect may subcontract any or all
of the work to be performed by it under this Agreement but shall retain responsibility for
the work subcontracted.
15. GUARANTEES; ADVANCE PAYMENTS; IDENTIFICATION. In the
event that Customer fails to pay any invoice on or before the forty-fifth day after its
date or to pay any sum when due within three (3) days after receipt of RealConnect's
written notice pursuant to Section (c) above, or if Customer is unable generally to pay
its debts when due, or RealConnect in its reasonable judgment determines that it needs an
advance payment to secure Customer's payment obligations, RealConnect may require Customer
to pay RealConnect an advance payment in the form of a cashier's or certified check, or
letter of credit, or to provide a guaranty satisfactory to RealConnect. Any such advance
payment may be applied against Customer's past due amounts.
(a) No provision of this Agreement may be waived or modified unless
such waiver or modification is in writing and signed by the Customer and RealConnect.
Changes to the Services specified on the first page of this Agreement shall be made by
amendment to this Agreement.
(b) If any term or provision of this Agreement shall be held invalid or
unenforceable, the remainder of this Agreement shall not be affected thereby and each term
and provision hereof shall be valid and enforced to the fullest extent permitted by law.
(c) RealConnect and Customer each represents that it has the power and
authority to enter into this Agreement and that this Agreement contains the entire
agreement of the parties with respect to the subject matter hereof and supersedes all
prior proposals, understandings, agreements and representations between them, written or
oral, and is a binding obligation of each party.
(d) RealConnect may modify or replace any equipment or Services
hereunder as RealConnect deems necessary to avoid any claims of patent, copyright or
trademark infringement. Any software provided for use with equipment shall be subject to
the license requirements of the software supplier. RealConnect reserves the right to make
upgrades to the system providing the Services, in RealConnect's sole discretion.
(e) All notices required or permitted to be given hereunder shall be in
writing and shall be given for all purposes hereunder, when delivered by hand delivery or
by courier, or on the third (3rd) business day after deposit with the United States Postal
Service, by registered or certified mail, return receipt requested, to Customer at its
address set forth herein and to RealConnect at its office or to such other address as
RealConnect shall specify to Customer.
(f) Customer agrees that the terms and provisions of this agreement
shall remain strictly confidential and may not be disclosed to any other party without the
express written consent of RealConnect, which may be withheld in its sole and absolute
(g) RealConnect exercises no control over, and cannot be held liable
for, the content of the information passed through its network. RealConnect's services may only be used for lawful purposes. Unauthorized transmissions or storage of any information, data, or materials in violation of any law or regulation of the United States, any state thereof, or the District of Columbia is expressly prohibited. This includes, but not limited to, material which is copyrighted or protected by trade secret. Customer agrees, when accessing other networks through RealConnect's network, to abide by the rules of that network as well.
Cancellation prior to the delivery of the services/product is subject to reimbursement of any costs incurred by RealConnect for this contract.