(a) "Service" means the Road Runner or any successor on-line service offered by Time Warner Cable .
(b) "Subscriber" means a person who establishes an authorized account ("Account") for access to and use of the Service.
(c) "Computer" means Subscriber's personal computer that will be used to access the Service. A Computer will need to meet certain requirements that will be specified by Time Warner Cable .
(d) "Equipment" means the cable modems and any other equipment including cabling, if necessary, to be installed at a Subscriber's premises, as described in Section 4.
(e) "Software" means the computer software licensed by Time Warner Cable to Subscriber to enable a single Computer to access the Service through the Equipment, as described in Section 4
(f) "Terms" means these Terms and Conditions of Use.
2. General
(a) These Terms set forth the terms and conditions which apply to the use of the Service by Subscriber. No representation, warranty, term or condition, other than as specifically set forth in these Terms, shall be binding on Time Warner Cable .
(b) Subscriber understands that the Service provides an uncensored feed from the Internet and that Time Warner Cable does not control, and assumes no responsibility for, content on the Internet or posted by a Subscriber.
(c) Time Warner Cable shall have the right at any time to change or discontinue any aspect or feature of the Service, including but not limited to content, hours of availability, and Equipment needed for access to and use of the Service. Either Time Warner Cable or Subscriber may terminate the Service to Subscriber at any time. Time Warner Cable further has the right to add to or modify any rules, terms and conditions governing use of the Service at any time.
(d) Subscriber is responsible in all respects (including all payment obligations) for all use of Subscriber's Account in all circumstances, including under any screen name or password by any person. Subscriber will ensure that all use of Subscriber's Account complies fully with the provisions of these Terms and any operating rules that may be promulgated from time to time by Time Warner Cable , and all use by others of Subscriber's Account is subject to the terms hereof. Subscriber shall be responsible for protecting the confidentiality of Subscriber's passwords.
(e) Subscriber represents and warrants that he or she is at least 18 years of age. Subscriber may, at his or her discretion, permit minors to use the Service under adult supervision.
(f) Transfer of the Account by Subscriber to any other person, or to a new residence, is prohibited.
3. Charges.
(a) Subscriber agrees to pay for the Service that he or she has subscribed to, including applicable charges for installation and all applicable local, state or federal fees or taxes. Monthly charges for the Service are set forth on a separate price list and are subject to change in the future. Service charges will be billed monthly in advance and are payable on the due date specified on the bill.
(b) An administrative late charge may be charged on accounts for Road Runner services that are past due. Payment for your Road Runner service must be received by Time Warner Cable on or before the due date stated on your Road Runner monthly bill. Failure to deliver payment by the due date is a breach of your Road Runner subscription agreement. This individual breach causes Time Warner Cable to suffer damages in an amount that is difficult to ascertain with certainty. Time Warner Cable has made a reasonable estimate to determine the damages caused by late payments generally and has used this estimate to set a liquidated damages late fee amount. The current late fee is listed in your [list of charges] or can be provided upon request. Time Warner Cable reserves the right to change the late fee amount at any time in the future upon notice to you of the new amount.
(c) If Subscriber discontinues the Service or the Service is discontinued for non-payment, he/she will be required, in addition to payment of all overdue balances, to pay a reconnect charge or trip charge (where applicable) before reconnection.
(d) Time Warner Cable may charge a service fee for all returned checks and bank card or charge card chargebacks.
(e) Subscriber will be responsible for all expenses (including reasonable attorneys' fees) incurred by Time Warner Cable in collecting any amounts due in accordance with these Terms and unpaid by Subscriber.
4. Equipment and Software.
(a) The charges for the Service include (1) rental of a cable modem and other Equipment, if necessary, to be installed at the Subscriber's premises to permit connection of a single Computer to the Service, (2) purchase, if necessary, of an ethernet card for installation in Subscriber's Computer, and (3) license of the Software. Connection of additional Computers may require payment of additional charges.
(b) Time Warner Cable will install the Equipment. Subscriber will select one of Time Warner Cable 's authorized computer dealers to install the Software, unless agreed otherwise. Time Warner Cable may enter Subscriber's premises and have access to Subscriber's Computer periodically during the term hereof to install, connect, inspect, maintain, repair or alter the Equipment or associated hardware or the Software, or to disconnect and remove the Equipment.
(c) Time Warner Cable shall have the right to upgrade the Equipment and Software from time to time through "downloads" from the network or otherwise, to conform the Equipment and Software to its current network specifications. This may include limitations on the throughput available through individual modems.
(d) If Subscriber is not the owner of the premises upon which Equipment and Software are to be installed, Subscriber warrants that he/she has obtained the consent of the owner of the premises for Time Warner Cable personnel or its agents to enter the premises for the purposes described in Section 4(b).
(e) Equipment.
(i) With the exception of the ethernet card, the Equipment is and at all times shall remain the sole and exclusive personal property of Time Warner Cable , and Subscriber shall acquire no interest therein by virtue of the payments provided for herein or the attachment of any portion of the Equipment to the Subscriber's residence or otherwise. Upon installation by Road Runner, the ethernet card shall become and shall remain the sole and exclusive personal property of Subscriber.
(ii) Subscriber will not open, alter, misuse, tamper with or remove the Equipment as and where installed by Time Warner Cable , and will not remove any markings or labels from the Equipment indicating Time Warner Cable ownership. Subscriber will safeguard the Equipment from loss or damage of any kind, and will not permit anyone other than an authorized representative of Time Warner Cable to perform any work on the Equipment.
(iii) Upon termination of the Service, for whatever reason, Subscriber acknowledges that his/her right to possess and use the Equipment shall likewise terminate. In such event, the Equipment shall be returned to Time Warner Cable in the same condition as when received, ordinary wear and tear excepted. If the foregoing conditions are met, Time Warner Cable will return to Subscriber his/her security deposit, if any, within a reasonable time thereafter.
(iv) If the Equipment is damaged, destroyed, lost or stolen while in Subscriber's possession, Subscriber shall be liable for the cost of repair or replacement of the Equipment. If the Equipment is not returned to Time Warner Cable as described in Section 4(e)(iii) upon termination of the Service, Subscriber will pay Time Warner Cable the sum of Three Hundred Dollars ($300.00) representing the replacement cost of the Equipment without any reduction for depreciation, wear and tear or the physical condition of such Equipment; unreturned power supply units (Other Equipment) will represent a replacement cost of Fifty Dollars ($50.00). Time Warner Cable may apply any security deposit to any such obligation of Subscriber, and collect any remaining balance from Subscriber. In the event any amount is deducted from the security deposit, the Subscriber must replace the amount so deducted.
(f) Software.
(i) Time Warner Cable grants to the Subscriber a limited, non-exclusive license to use the Software, in object code form only, solely for the purpose of connecting Subscriber's single Computer to the Service. This license will permit such use by Subscriber and any person authorized by Subscriber to use the Account, under any password or screen name, provided that Subscriber shall be responsible for all use of the Account as described in Section 2(d). This license will commence upon acceptance of Subscriber's subscription for the Service and will terminate immediately upon termination of the Service to Subscriber for any reason. Time Warner Cable retains all rights and interests in and to the Software.
(ii) Subscriber is permitted to archive the Software, provided that all such copies contain the same copyright notices and proprietary markings as the original Software. Subscriber will not engage in, and will not permit, any other copying, or any translation, reverse engineering or reverse compiling, disassembly or modification of, or preparation of any derivative works based on the Software, all of which are prohibited.
(iii) Subscriber will destroy all Software and any related written material together with any copies promptly upon termination of the Service to Subscriber for any reason.
5. Subscriber Conduct.
(a) Subscriber shall use the Service for lawful purposes only. Subscriber shall not post or transmit through the Service any material (including any message or series of messages) that violates or infringes in any way upon the rights of others (including copyright or trademark rights), that is unlawful, threatening, abusive, obstructive, harassing, libelous, invasive of privacy or publicity rights, or in the circumstances would be obscene or indecent, constitutes hate speech or is otherwise offensive or objectionable, or that encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law. Subscriber also shall not link his/her personal home page to material or content that violates the Service's standards of conduct as reflected in this Section 5 or as specified by rules that the Time Warner Cable may, from time to time, promulgate to govern Subscriber conduct. Time Warner Cable shall have the sole and unreviewable right to determine whether content violates these standards.
(b) Subscriber will not resell the Service, or any portion thereof, or otherwise charge others to use the Service, or any portion thereof. The Service is for personal use only, and Subscriber agrees not to use the Service for operation as an Internet Service Provider, to host web sites for other parties or for any other business enterprise or to connect the Cable modem to any server or to any computer outside of the Subscriber's premises.
(c) Without Time Warner Cable 's prior written approval, Subscriber shall not post or transmit through the Service any material that constitutes or contains advertising or any solicitation with respect to products or services, nor shall Subscriber transmit bulk e-mail without prior written permission from Time Warner Cable.
(d) Except as allowed by applicable law, Subscriber shall not upload, post or otherwise make available on the Service any material protected by copyright, trademark, or trade secret or other proprietary right without the express permission of the owner thereof. Subscriber may upload public domain materials and is responsible for and assumes all risks with respect to the determination of whether materials are in the public domain.
(e) The Service contains copyrighted material, trademarks and other proprietary information, and the entire contents of the Service are copyrighted as a collective work under the United States copyright laws. Time Warner Cable grants Subscriber the right to download the Service's copyrighted material solely for Subscriber's personal use. Except as granted here and as otherwise expressly permitted under copyright law, no copying, redistribution, publication or commercial exploitation of downloaded material will be permitted without the express prior written consent of Time Warner Cable and, where applicable, the third party copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution or copyright notice shall be made.
6. Monitoring and Enforcement.
(a) Subscriber agrees that Time Warner Cable shall have the right, but not the obligation, to monitor all content on the Service, including chat rooms, bulletin boards, e-mail and forums, in order to determine compliance with these Terms and any rules now or hereafter established by Time Warner Cable .
(b) Time Warner Cable will have the right in its sole discretion to edit, refuse to post, request removal of, or remove any material submitted to or posted on the Service, including personal home pages. Without limiting the foregoing, or Time Warner Cable 's rights under Section 2, Time Warner Cable shall have the right to remove any material that Time Warner Cable , in its sole discretion, finds to be in violation of the provisions of these Terms, including the standards of conduct set forth in Section 5(a), any operating rules promulgated from time to time by Time Warner Cable , or otherwise to be objectionable.
(c) Subscriber agrees that Time Warner Cable has the right to take any action Time Warner Cable deems appropriate to protect the Service, its facilities for provision of the Service, or the Equipment, including but not limited to restricting or prohibiting the posting of any material that interferes with Time Warner Cable ability to provide the Service. Subscriber acknowledges and agrees that Time Warner Cable shall have the right to monitor the "bandwidth" utilization (i.e. volume of data transmitted) arising out of the Service provided hereunder at any time and on an on-going basis and to limit excessive use of bandwidth in order to effectuate these provisions and other terms hereof.
(d) If Time Warner Cable determines that Subscriber has failed to comply with the Service's standards of conduct or limits on bandwidth utilization, Time Warner Cable may suspend Subscriber's Account or home page or cancel Subscriber's Account without prior notification. Time Warner Cable may also suspend or cancel Subscriber's Account for using the Service to post content to the Internet that violates the Service's standards. If Subscriber's Account is suspended, Subscriber will not be charged for that period of time. If Subscriber's Account is canceled, Subscriber will be refunded any pre-paid fees minus any amount due Time Warner Cable.
(e) Time Warner Cable undertakes no obligation to review or determine the accuracy of any Subscriber postings.
7. Republication
Subscriber acknowledges that material posted or transmitted through the Service may be copied, republished or distributed by third parties, and will hold Time Warner Cable , its corporate parents, affiliates and subsidiaries harmless for any harm resulting from such actions.
8. Service and Repairs
Time Warner Cable will repair damage to or, at Time Warner Cable option, replace Equipment, modify Software, and otherwise attempt to correct interruptions of Service, due to reasonable Equipment wear and tear or technical malfunction, at Time Warner Cable 's expense. Other repair or replacement will be at Subscriber's expense under Section 4(e).
9. Service Interruptions; Force Majeure
In the event of complete failure of the Service due to technical malfunction for twenty-four (24) consecutive hours or more, Subscriber is entitled to a prorated credit upon request. To qualify for an adjustment, Subscriber must request a credit within thirty (30) days of the failure. Time Warner Cable , its corporate parents, affiliates and subsidiaries shall have no liability, including as set forth in this Section 9, for interruption of Service due to circumstances beyond its control, including without limitation, acts of God, natural disaster, regulation or governmental acts, fire, civil disturbance, strike or weather.
10. Disclaimer of Warranty; Limitation of Liability.
SUBSCRIBER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT SUBSCRIBER'S SOLE RISK. NEITHER TIME WARNER CABLE, ITS CORPORATE PARENTS, AFFILIATES, SUBSIDIARIES, NOR ANY OF THEIR RESPECTIVE EMPLOYEES OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE OR MERCHANDISE PROVIDED THROUGH THE SERVICE. CERTAIN CONTENT MAY BE CONSIDERED OBJECTIONABLE BY INDIVIDUAL SUBSCRIBERS AND SUBSCRIBERS MUST EXERCISE THEIR OWN DISCRETION IN USING AND ALLOWING MINORS OR OTHERS TO USE THE SERVICE.
TIME WARNER CABLE, ITS CORPORATE PARENTS, AFFILIATES AND SUBSIDIARIES DO NOT ENDORSE OR WARRANT, AND SHALL NOT BE RESPONSIBLE IN ANY REGARD FOR, ANY MERCHANDISE OR SERVICES ORDERED THROUGH THE SERVICE OR OTHER COMMERCIAL TRANSACTIONS. SUBSCRIBER SHALL BE RESPONSIBLE FOR ALL SUCH CHARGES AND SHALL INDEMNIFY TIME WARNER CABLE, ITS CORPORATE PARENTS, AFFILIATES AND SUBSIDIARIES FOR ALL LIABILITY IN CONNECTION THEREWITH.
THE SERVICE, THE EQUIPMENT AND THE SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES THAT ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THESE TERMS.
NEITHER TIME WARNER CABLE, ITS CORPORATE PARENTS, AFFILIATES OR SUBSIDIARIES NOR ANY OF ITS SUPPLIERS SHALL HAVE ANY RESPONSIBILITY OR LIABILITY WITH REGARD TO THE OPERATION OR REPAIR OF SUBSCRIBER'S COMPUTER, OR FOR ANY LOSS OF DATA BY SUBSCRIBER, HOWEVER CAUSED.
EXCEPT FOR THE REFUND OR CREDIT AS EXPRESSLY PROVIDED IN SECTIONS 6(d) AND 9 RESPECTIVELY, IN NO EVENT (INCLUDING NEGLIGENCE) WILL TIME WARNER CABLE, ITS CORPORATE PARENTS, AFFILIATES, SUBSIDIARIES, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICE (INCLUDING THE CONTENT INCLUDED THEREIN OR THE INFORMATION SERVICES ACCESSED THEREBY), THE EQUIPMENT OR THE SOFTWARE, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, ACTION TAKEN TO PROTECT THE SERVICE OR OUT OF THE BREACH OF ANY WARRANTY.
SUBSCRIBER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION 10 SHALL APPLY TO ALL CONTENT OR INFORMATION SERVICES INCLUDED IN, OR ACCESSIBLE THROUGH, THE SERVICE, AND ARE FOR THE BENEFIT OF TIME WARNER CABLE, ITS CORPORATE PARENTS, AFFILIATES, SUBSIDIARIES, AND THEIR RESPECTIVE EMPLOYEES AND AGENTS.
11. INDEMNIFICATION
SUBSCRIBER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS TIME WARNER CABLE, ITS CORPORATE PARENTS, AFFILIATES AND SUBSIDIARIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FROM AND AGAINST ANY AND ALL CLAIMS AND EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES, ARISING OUT OF OR RELATED IN ANY WAY TO THE USE OF THE SERVICE BY SUBSCRIBER OR OTHERWISE ARISING OUT OF THE USE OF SUBSCRIBER'S ACCOUNT OR EQUIPMENT.
12. Privacy
Subscriber's privacy interests, including Subscriber's ability to limit disclosure of certain information to third parties, are addressed by, among other laws, the federal Cable Communications Act and the Electronic Communications Privacy Act. Those two Acts and information required to be disclosed by the Cable Act with regard to personally identifiable information are described in the Subscriber Privacy Notice delivered to Subscriber and incorporated by reference. Subscriber acknowledges receipt of the Subscriber Privacy Notice. In addition to the categories of disclosure specifically authorized by statute and described in the Privacy Notice, Time Warner Cable also reserves the right to disclose and Subscriber hereby consents to the disclosure of any information that suggests that any individual's physical safety is in peril.
13. Entire Agreement
These Terms and any rules specified by Time Warner Cable for the Service established by Time Warner Cable now or hereafter constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter; provided that any other subscription or customer agreement or terms and conditions relating to Subscriber's cable television service with Time Warner Cable shall remain in full force and effect. Acceptance of Service shall constitute acceptance of the terms and conditions herein. Subscriber's continued acceptance of the Service following notice of any new or modified rules, terms or conditions for use thereof provided by Time Warner Cable by any means (including online posting thereof in the Service) shall constitute acceptance.
14. Term and Revisions
These Terms will remain in effect until canceled by either party or superseded by revised Terms and Conditions of Use. Subscriber acknowledges that Time Warner Cable may from time to time promulgate revisions to these Terms. Subscriber shall be notified of any revisions on-line or otherwise and shall be given the opportunity to accept such changes or cancel his/her subscription and receive a refund of prepaid fees minus any amount due Time Warner Cable .
15. Serviceability
In the event that any portion of these Terms is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties as set forth herein, and the remainder of these Terms shall remain in full force and effect.
16. Waiver
No waiver by either party of any breach or default shall be deemed to be a waiver of any preceding or subsequent breach or default.
