In consideration of the Terms, Conditions and Covenants listed above in this agreement (the “Agreement”), the Customer (as indicated above) and Kingsburg Media Foundation, Inc. (“KMF”) agree as follows
The Customer wishes to enter into an agreement with KMF for Internet service (“Services”) for the above-listed Service Address (the “Property”). In order to provide Services to the Property, KMF may install certain equipment and wiring at the Property.
The Customer agrees that the Term of this Agreement starts on the date KMF activates the Services and continues for as long as services are rendered.
Customer shall pay for any installation fee(s) listed in this Agreement.
Customer authorizes KMF, its employees, agents and independent contractors (“Authorized Parties”), to enter onto the Property to install and maintain any equipment and wiring necessary for Customer to receive the Services (collectively, “Permitted Equipment”). Customer represents and warrants to KMF that Customer has full authority to enter into this Agreement, without obtaining approval of any other person, and acknowledges that KMF is relying upon such representation and warranty to proceed with installation of any required Permitted Equipment. Customer agrees to indemnify KMF for any liability arising out of or in any way connected to acts reasonably performed by KMF in reliance on Customer’s representations of authority. Additionally, in the event that KMF arrives on location for the installation of the Permitted Equipment, or activation of the Services, and the Customer does not or did not have the authority to authorize the installation, resulting in KMF having to remove equipment, relocate its equipment or reschedule the installation, Customer may be subject to a technician roll-out charge of ONE HUNDRED SEVENTY DOLLARS ($170.00).
The Customer agrees to pay the monthly fee indicated above (“Monthly Recurring Fee”) for each month of Service. All payments are due 20 days after invoice date when paying by check or due upon receipt if paying by credit card. All payments received 10 days past due date will be considered late and subject to a $10.00 late fee. All accounts shut off for non-payment or suspended outside of Agreement terms, are subject to a minimum service fee $20.00 per month, or prorated amount thereof, and may be subject to a reactivation fee of $25.00.
Installation fees and first month’s service fees are due once the Services are activated. Payment may be made by credit card or debit card. Enterprise customers may request to pay via check with a Net 20 term. Recurring monthly payments will be automatically debited monthly using the debit card or credit card on file. Refunds will be handled on a case-by-case basis.
KMF offers “Asymmetrical,” “Symmetrical” and “Enterprise” plan types. “Asymmetrical” and “Symmetrical” are burstable plans. The upload and download speeds listed in the “Symmetrical” and “Asymmetrical” plan descriptions are Maximum Information Rates (MIRs). The Committed Information Rates (CIRs) for “Asymmetrical” and “Symmetrical” plans are 80% of the Maximum Information Rates (MIRs). The Committed Information Rates (CIRs) for “Enterprise” plans are 100% of the listed Maximum Information Rates (MIR’s).
Upgrading or Downgrading Service Plan Levels The Customer may “Upgrade” to a higher “tier level” of Services at any time. The Customer may “Downgrade” Symmetrical or Asymmetrical plans to a lower “tier level” of Services any time.
Upon termination of a Service for any reason, KMF or its representative will contact Customer to schedule a mutually acceptable time and date for retrieval of KMF Equipment located on Customer’s premises. Alternatively, KMF may request that Customer package KMF Equipment and return it to a location identified by KMF. If Customer does not provide KMF with access to its premises to allow KMF to recover the KMF Equipment within thirty (30) days following KMF’s contact, or if Customer does not ship the KMF Equipment to KMF within the thirty (30) days, then Customer is responsible to pay the market value replacement cost of such equipment. Upon Termination of a Managed Service, Customer is responsible to return the Managed Service equipment to Kingsburg Media Foundation 2030 Mariposa St. Kingsburg, CA 93631. If the Customer chooses to ship, use the same address as noted in this section; please package the equipment with care to reduce the potential for equipment damage. If the Managed Service equipment is received in damaged condition, or not received, Customer will be billed and is responsible to pay market value replacement cost for the Managed Service item(s).
If Customer moves to a location outside of the KMF coverage area Equipment Recovery rules will apply. In the event Customer moves locations within KMF’s coverage area, Customer may be subject to a ONE HUNDRED DOLLARS ($100.00) fee for KMF technicians to transfer Services to the new location.
In the case of excessive bandwidth usage by peer-to-peer file sharing programs, compromised file servers or abusive packets originating from Customer’s connection, KMF reserves the right to throttle or shape Customer’s traffic to allow fair network conditions for its customers. All customers should realize this is in the best interest of business class connectivity.
Customers are required to have a properly configured and installed router between our network and their private network. This router must contain firewall configurations to ensure any internal problems/malware does not affect KMF’s network. Failure to comply will result in a connection block until such device is properly configured.
The total cumulative liability of KMF, its employees, officers, directors, representatives and agents (hereinafter collectively called “the KMF parties”), if any, for costs, losses, or damages from all claims, actions or suits howsoever caused or arising out of or in connection with this Agreement shall be limited to direct damages and shall not exceed the greater of: (i) the amount of payments received by KMF from customer for the twelve (12) months prior to the occurrence of the event(s) giving rise to any claims, actions or suits or (ii) any amounts payable and actually paid to the customer or KMF, as applicable, under any applicable insurance policies then in effect. In no event shall the KMF parties or any member thereof be liable for any special, consequential, incidental, exemplary, punitive or other indirect damages, for loss of profits, loss of use or loss of data, howsoever caused or arising and regardless of legal theory or foreseeability. No claims may be asserted by either party against the other with respect to any act, event or omission that occurred more than eighteen (18) months prior to such claims, actions or suits being asserted.
This Agreement is subject to KMF’s Acceptable Use Policy (“AUP”), which is incorporated by reference and may be modified from time to time at KMF’s sole discretion to improve network conditions, conform to industry standards and respond to legal and economic changes impacting the provision of the Services, as defined below. The current AUP can be found at www.kbmf.org/aup.html.
The parties agree that any disputes between the parties, their employees, their owners, officers or directors shall be resolved by binding arbitration pursuant to the Federal Arbitration Act. The arbitration shall be held in Fresno County, California, and the arbitrator shall apply the substantive law of California, which shall govern this dispute. The parties shall share equally the cost of arbitration.
If either party brings legal action to enforce or interpret this Agreement, the prevailing party shall be entitled to its reasonable attorney’s fees and costs.
This Agreement will be governed by California law and any dispute will be venued in Fresno County, California.
You agree that KMF may contact you by telephone or text messages (including by an automatic telephone dialing system) at any of the phone numbers provided by you or on your behalf in connection with an Kingsburg Media Foundation account, including for KMF marketing purposes. You understand that you are not required to provide this consent as a condition of purchasing any property, goods or services. Customer and the individual agreeing represent that such individual has the authority to bind Customer to this Agreement and authorizes KMF to be able to contact and send SMS messages to any/all contacts listed on said account. You also understand that you may opt out of receiving text messages from KMF at any time, either by replying the word “STOP” using the mobile device that is receiving the messages, or by contacting KMF support to Opt-In.
This Agreement supersedes all prior Agreements, if any. It can only be changed by a written Agreement signed by parties. If any part of this Agreement is deemed unenforceable, the remaining portions will continue in full force and effect. A waiver of a breach of any portion of this Agreement will not be considered to be a waiver of any future breaches.
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