(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.
