VINEYARD MEDIA SERVICE AGREEMENT (SERVICE CONTRACT) Please read this Service Agreement carefully since it contains important contract rights and obligations between you and Vineyard Media as well as important limitations on those rights.
1. THE SERVICE. The Service consists of wireless Internet access to and from your Personal Computer or Network, for 12 months.
2.1 MODIFICATION OF THIS SERVICE AGREEMENT; NOTICES. Upon notice published over the service, we may at any time modify this Service Agreement, including, without limitation, pricing and billing terms. In the event you do not agree to such changes or additions, then you must cancel your subscription and stop using the Vineyard Media service prior to the effective date of such modifications. Your continued use of the Vineyard Media service after the effective date of such modifications constitutes your acceptance of such modifications.
2.2 MODIFICATION OF THE SERVICE. We may discontinue, add to or revise any or all aspects of the service in our sole discretion and without notice, including access to support services, publications and any other products or services ancillary to the service or membership. In particular, we specifically reserve the right at our sole discretion to modify, supplement, delete, discontinue or remove any software, file, publications, information, communication or other content appearing on or transmitted through the service.
2.3 TERMINATION BY SUBSCRIBER. In the event that we modify this Service Agreement, the Service or related pricing or billing terms, you may immediately terminate your account and this Service Agreement. Subject to your payment of the cancellation charges herein described, you may also do so at any other time and for any reason or for no reason upon fifteen (15) days written notice. In the event you cancel your subscription to the Vineyard Media Wireless Service prior to the expiration of the minimum commitment period specified for your applicable service plan, you may be subject to an Early Cancellation Fee (ECF) of $150. The ECF will not be imposed when the cancellation is made prior to the thirty-first (31st) day of service and provisions of this agreement are met.
2.4 TERMINATION OR SUSPENSION BY VINEYARD MEDIA. We may immediately terminate your account and this Service Agreement in the event of any breach of this Service Agreement or Acceptable Use Policies by you or a user of your account. We reserve the right in our sole discretion to terminate your account and this Service Agreement at any time or to suspend (with or without notice) or terminate access to or use of the Service, in whole or in part.
2.5 CONTINUATION OF OBLIGATIONS. Notwithstanding any cancellation or termination of this Service Agreement or any portion of your account, nor any suspension or termination of access to or use of the Service, you will remain responsible for any obligations accrued to the date of such action, including payment of any charges that may be due as a result of or in connection with such action(s).
3.1 AGE AND ACCOUNT SETUP. You represent that you are at least 18 years of age and have the right and ability to enter into this Service Agreement.
3.2 INSTALLATION OF VINEYARD MEDIA WIRELESS EQUIPMENT. You acknowledge and agree that we or our designated service provider may be required to access your premises or system in order to install and maintain the components necessary for you to access the Vineyard Media Wireless Service. By accepting this Agreement, scheduling a service or installation visit, and permitting us or our service provider to enter your home, you hereby authorize us or our service provide to access your computer for the purpose of installing, repairing or replacing the components necessary. Neither we nor our service provider shall have any liability whatsoever for any losses resulting from installation, repair or other services, including without limitation, damage to your premises, loss of software, data or other information from your computer. This limitation does not apply to any damages arising from the gross negligence of willful misconduct of any installation or maintenance service provider. Timeframes for installation, if any, are not guaranteed and may vary depending on the types of services requested and other factors. All Vineyard Media equipment installed for connection to Vineyard Media Service remains the property of Vineyard Media and will be willfully surrender to Vineyard Media at termination of service. All contracts are subject to a $500 Equipment Repossession Fee (ERF) if not voluntarily returned to Vineyard Media. The ERF will not be charged if all items are returned in good working condition within ten (10) business days of termination of service. Vineyard Media will maintain, repair and service this equipment for normal use. You will be responsibly for any damages to the equipment that occurs from tampering, neglect, willful destruction or damage and improper use.
3.3. SUBSCRIBER RESPONSIBILITY. You shall be responsible for all access to and use of the Service through your account or password(s) and for any fees incurred for service, or for software or other merchandise purchased thereon, or any other expenses incurred in accordance with the terms of this Service Agreement. You promise to pay such amounts billed for such service, software, or merchandise and any related fees, taxes and charges. Permitted users of your account are limited to family members with your permanent residence. You acknowledge that you are aware that areas accessible on or through the Service may contain material that is unsuitable for minors (persons under 18 years of age). You agree to supervise usage of the Service by minors who use the Service through your account. You hereby ratify and confirm any obligations a minor using your account enters into or assumes and any promises or permissions such minor makes or gives.
4.1 FEES, TAXES AND OTHER CHARGES. You agree to pay, in accordance with the provisions of the billing option you selected, any registration, activation or monthly fees, connect time charges, ISP service charges and other amounts charged to or incurred by you, or by users of your account, at the rates in effect for the billing period in which those amounts are charged or incurred. You agree to pay all applicable taxes related to your use of the Service or the use of the Service by users of your account. Information on charges and surcharges (if any) that are to be paid to us and are incurred by you or by users of your account will be made available to you on the Vineyard Media Wireless web site, and you agree that this is sufficient notice for all purposes as to charges incurred and paid or to be paid to us. We reserve the right to increase fees, surcharges, monthly subscription fees or to institute new fees at any time upon 30 days prior notice. You understand and acknowledge that you may not receive a bill in the mail for your Service. Additional terms relating to pricing, billing and payment and which are an integral part of this Service Agreement are set forth and available on the Vineyard Media web site.
4.2 PAYMENT. Initial payment must be received prior to the service being activated. Regular payment for services will be billed on the 1st day of each month and payment is due before the last day of the month. A $10.00 late fee will be access to all accounts for payment not received by the due date, a maximum of one late fee per calendar year can be waived if the account has been current for the previous 6 month period. The Customer must notify Vineyard Media at least 15 days before the next payment is due if The Customer wishes to change the method of payment. There is a $30.00 service charge for returned checks. Accounts that are more than 15 days past due may be placed on hold and access will be denied until payment is made. Accounts continue to accrue charges while they are on hold. After the account has been on hold for 30 days, the service may be terminated if not under long-term contract and any outstanding balance will be immediately due and payable, or the full amount for the entire period of any contract, to Vineyard Media. There will be a $30.00 reconnect fee in addition to any unpaid balance to reactivate the account. Termination requests for Vineyard Media accounts must be received in writing via e-mail, fax, or postal service at the Vineyard Media main office. Refunds for prepaid service will be at the sole discretion of the management. The Customer is responsible for all fees up to the date of termination of the service regardless of the usage on the account. The Customer acknowledges that Vineyard Media may terminate the account without notice if the customer does not comply with this policy. If we choose to use any collection agency or attorney to collect money that you owe us or to assert any other right which we may have against you, you agree to pay the reasonable costs of collection or other action including, but not limited to, the costs of a collection agency, reasonable attorney's fees, and court costs, as provided by applicable law.
4.3 COMMENCEMENT AND DURATION OF SUBSCRIBERSHIP FEES. You acknowledge that (subject to any exceptions granted by us) a monthly fee will apply for each and every month (or portion thereof) that you are a Subscriber. Your account will continue until you cancel the account in accordance with the method or methods specified by us (unless otherwise terminated in accordance with this Service Agreement).
4.4 ANCILLARY EQUIPMENT, SERVICES. It is your responsibility, at your own expense, to obtain, maintain, and operate suitable and fully compatible computer equipment to access the Service. You acknowledge that certain subscriber computer equipment may have been acquired by you separate and apart from this subscriber agreement. You are solely responsible for maintaining such subscriber computer equipment. We make no representation or warranties pursuant to this subscriber agreement, either express or implied, regarding such subscriber computer equipment -- although you may have limited warranties under a separate purchase agreement. Service charges will apply for any repairs or service to equipment not owned by Vineyard Media. Basic service charge will be $39.00 minimum per service call. Other charges may apply subject to the level of service required.
5.1 PROHIBITED CONDUCT. You acknowledge you have read and understand the Acceptable Use Policy (AUP) and that accepting this agreement you are agreeing to the terms set forth in the AUP.
5.2 VINEYARD MEDIA WIRELESS FAIR ACCESS POLICY. To ensure equal Internet access for all subscribers, we maintain a running average fair access policy. Fair access establishes an equitable balance in Internet access across the Vineyard Media Wireless Services by service plan for all Vineyard Media Wireless customers regardless of their frequency of use or volume of traffic. To ensure this equity, you may experience some temporary throughput limitations. Vineyard Media Wireless Internet access is not guaranteed. This policy applies to all service plans including "Unlimited" plans where customers' use of the service is not limited to a specific number of hours per month.
5.4 COMPLIANCE WITH LAWS. You agree to comply with all applicable laws, rules and regulations in connection with the Service, your use of the Service and this Service Agreement.
6. NO ENDORSEMENT. We do not endorse or in any way vouch for the accuracy, completeness, truthfulness or reliability of any service, opinion, advice, communication, information or other content on or made available through the Service. None of such content should be construed or understood to constitute or reflect the views or approval of Vineyard Media Wireless or any of the subsidiaries or affiliates. We do not recommend that such content be relied on for reaching important decisions or conclusions without appropriate verification and, as appropriate, professional advice.
7. INTERNET. You acknowledge that internet sites, and use of the internet, might consist of, include and/or provide access to images, sound, messages, text, services or other content and material that may be unsuitable for minors and that may be objectionable to many adults. You acknowledge that we are not responsible for any such content or material and agree that access to same through use of the service is at your sole risk. The reliability, availability, legality, performance and other aspects of resources accessed through the Internet are beyond our reasonable control and are not in any way warranted or supported by ourselves or our third party contractors. You acknowledge that safeguards relative to copyright, ownership, appropriateness, reliability, legality and integrity of content may be entirely lacking with respect to the Internet and content accessible through it. You confirm that you assume all risk and liability of any use of the Internet through your account, including your continuous compliance with the Subscriber Agreement.
8.1 DISCLAIMER OF WARRANTIES, LIABILITY AND RESPONSIBILITY. You expressly agree that use of the service is at your sole risk. Neither we nor any of our information or content providers, service providers, licensors, employees or agents warrant that the service will be uninterrupted or error free; nor do we or any of our information or content providers, service providers, licensors, employees or agents make any warranty as to the results to be obtained from use of the service, including any minimum upload or download speeds. The service is distributed on an "as is" and "as available" 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 or otherwise, except for those warranties, if any, which are implied by, and incapable of exclusion, restriction or modification under, the laws applicable to this subscriber agreement. We expressly disclaim any representation or warranty that the Vineyard Media Wireless service will be error free, secure or uninterrupted or operate at any minimum speed. No oral advice or written information given by ourselves, our employees, dealers, and licensors or the like shall create a warranty; nor shall you rely on any such information or advice. In particular, because we may provide its subscribers with electronic access to the content available on the service, which content may be originated by independent publishers and/or providers and which content is not augmented by ourselves, we cannot and do not warrant the accuracy of any of the information as originated by said independent publishers and/or providers, and we shall not be liable in any manner whatsoever for any errors, omissions, or inaccuracies relating thereto. If defective, you - not ourselves, our dealers, distributors, agents, employees or any third-party content provider - assume the consequences resulting thereof. No oral or written information or advice given by ourselves, our dealers, distributors, agents, employees or any third-party content provider, shall create any warranty in or to the Vineyard Media Wireless service or the content, and you may not rely on any such information or advice. This warranty gives you specific legal rights. You may have other rights, which vary from state to state.
8.2 LIMITATION OF LIABILITY. To the maximum extent permitted by law, neither we nor any of our information or content providers, service providers, licensors, employees or agents shall be liable for any direct, indirect, incidental, special, punitive or consequential damages arising out of use of the service or inability to use the service or out of any breach of any representation or warranty. Without in any way limiting the foregoing, if for any reason, by operation of law or otherwise, any portion of the foregoing limitation of liability shall be voided, then in such event our maximum, sole, and exclusive liability, our dealers, distributors, agents, employees or third party content provider, if any, shall be limited to general money damages in an amount not to exceed the total amount actually paid to ourselves by you for services furnished under this subscriber agreement during and for a period of time commencing upon the occurrence of such error, defect or failure and ceasing upon the discovery of such, in whole or in part; provided, however, that in no event shall such period of time exceed the twelve (12) month period immediately preceding the date which such error, defect or failure is first discovered in whole or in part.
8.3 APPLICABILITY OF PROVISIONS TO CIRCUMSTANCES INVOLVING OTHERS. You expressly acknowledge that the provisions of this section shall also apply to any and all claims relating to "acquired material" and any other content available through the service. You agree that you will not in any way hold us responsible for any selection or retention of, or the acts or omissions of, third parties in connection with the service (including those with whom we contract to operate various areas on or features of the service).
8.4 FULL APPLICABILITY. The foregoing exclusions or limitations of liability apply regardless of any allegation or finding that a remedy failed of its essential purpose, regardless of the form of action or theory of liability (including, without limitation, negligence) and even if we or others were advised or aware of the possibility or likelihood of such damages or liability.
9. INDEMNITY. YOU AGREE TO INDEMNIFY US AGAINST ALL CLAIMS, LIABILITY, DAMAGES, COSTS AND EXPENSES, INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS FEES, ARISING OUT OF OR RELATED TO ANY AND ALL USE OF YOUR ACCOUNT. THIS INCLUDES, WITHOUT LIMITATION, RESPONSIBILITY FOR ALL SUCH CONSEQUENCES OF YOUR (OR THAT OF ANY USER OF YOUR ACCOUNT) VIOLATION OF THIS SUBSCRIBER AGREEMENT OR PLACEMENT ON OR OVER, OR RETRIEVAL FROM OR THROUGH, THE SERVICE OF ANY SOFTWARE, FILE, INFORMATION, COMMUNICATION OR OTHER CONTENT.
10. LIABILITY FOR UNAUTHORIZED USE. You are considered the registered recipient of the Vineyard Media Wireless services until we receive such notice, and you will be liable for any charges or fees incurred by the use of your Vineyard Media Wireless equipment by anyone else up to the time that we receive your notice, unless otherwise provided by State law. You may not assign or transfer your service without our written consent. If you do, we may inactivate your service. If your Vineyard Media Wireless equipment is stolen or otherwise removed from your premises without your authorization you must notify Vineyard Media Wireless immediately, or else you may be liable for payment for unauthorized use of your Vineyard Media Wireless system. You will not be liable for unauthorized use after we have received your notification.
11. PROPRIETARY RIGHTS. We and/or such third party content providers own all right title and interest to such content and you may not copy, distribute, transmit or publish, in any form, including printed, electronic, digitized, audio or otherwise, or modify all or any portion of such content without the prior written consent of the copyright owner; provided, however, that you may store one copy of the content on your personal computer for your personal use for a period not to exceed thirty calendar days. All copyright or other proprietary rights notices contained in or associated with the content or contained therein must be preserved in, or on, any copies made of such material. The placement of any proprietary material in any public posting area, or any software library, without the consent of the owner is in violation of this Subscriber Agreement.
12. LIMITS ON TRANSFERS; OTHER LIMITS. Unless otherwise agreed in writing, your right to use the Service, or to designate other users of your account, is not transferable and is subject to any limits established by ourselves, or by your credit card company or other billing institution, as applicable.
13. CHOICE OF LAW. This Service Agreement is made in the State of Arkansas. This Service Agreement and all of the parties respective rights and duties in connection herewith, including, without limitation, claims for violation of state consumer protection laws, unfair competition laws, and any claims in tort shall be governed by and construed in accordance with the laws of the State of Arkansas.
14. ARBITRATION. All disputes and controversies of every kind and nature between the Parties hereto arising out of or in connection with this agreement or otherwise, shall be settled exclusively by arbitration, conducted before a single arbitrator named by the American Arbitration Association in accordance with the Commercial Arbitration Rules of the American Arbitration Association and applying the substantive laws of the State of Arkansas. Neither any party hereto nor the arbitrators may disclose the existence or results of any arbitration hereunder without prior written consent of the other party; nor will any party hereto disclose to any third party any confidential information disclosed by any other party hereto in the course of an arbitration hereunder without the prior written consent of such other party.
15. ENTIRE AGREEMENT. This Service Agreement, as published over the Service, as well as the additional online documents specifically referred to herein as being a part of this Service Agreement, constitute the entire and only agreement with respect to the subject matter hereof (collectively, the Service Agreement) between you and ourselves, applicable also to all users of your account. This Service Agreement supersedes all representations, proposals, inducements, assurances, promises, agreements and other communications with respect to the subject matter hereof, except as expressly set forth in this document. By executing the online sign-up procedure; or any other procedure we have establish to activate your Vineyard Media Wireless account, you agree to the terms and conditions of this Service Agreement. This Service Agreement can be amended only in the manner expressly provided for in this Service Agreement.