Subscriber has applied for the Service (as defined below) with KGI COMMUNICATIONS, LLC, a
Virginia limited liability company with offices located at 20 Synan Rd, Unit 111, Fredericksburg, VA 22405 (“KGI”), by completing a Service Application Form. The Service is subject in all respects to the terms and conditions set forth in this Internet Service Provider Agreement (the “Agreement”)
1. The Service. Subject to the terms of this Agreement, KGI grants to Subscriber a limited, personal, non-transferable, and non-exclusive right to use the Air Fiber fixed wireless Internet service provided by KGI (the “Service”) during the term of this Agreement. Subscriber’s use of the Services shall be in accordance with this Agreement and KGI’s Acceptable Use Policy, which is made a part of this Agreement. Subscriber is responsible for providing and maintaining all equipment and software necessary to access the Service. Nothing in this Agreement grants or transfers to Subscriber any ownership rights in the Service, including the software and other intellectual property rights related to the Service.
2. Payment. For access to and use of the Service, Subscriber agrees to pay the fee amounts set forth in the Service Application Form. Subscriber must (i) provide KGI with accurate and complete billing information including legal name, address, telephone number, and credit card/billing, and (ii) report to KGI all changes to this information. Subscriber is responsible for all charges to Subscriber’s account. Subscriber will be billed each month for the service and any additional usage or services. Subscribers are responsible for paying all charges billed to their account in the manner and method prescribed on their invoice. KGI is not responsible for any charges or expenses (overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by KGI. If KGI has failed to pay any underlying service provider all amounts owing for your account - whether or not you have paid KGI - your account will be subject to suspension or cancellation until you or KGI has paid all amounts due. Delinquent accounts may be suspended or canceled at KGI’s sole discretion; however, charges will continue to accrue until the account is canceled. KGI may bill an additional charge to reinstate a suspended account. A monthly billing cycle shall commence on the anniversary date of the installation of the service. Subscriber is responsible for any taxes, including personal property taxes or sales taxes resulting from Subscriber’s use of the Service.
3. Software License. In the event Subscriber installs software distributed by KGI (including
software from third-party vendors), KGI grants to Subscriber a limited, non-exclusive, non-transferable and non-assignable license or sublicense, as applicable, to install and use such software, together with its associated documentation, and any updates thereto (“Licensed Software”) in order to access and utilize the Service. Subscriber agrees to use the Licensed Software solely in conjunction with the Service and for no other purpose. KGI may modify the Licensed Software at any time, for any reason, and without providing notice of such modification to Subscriber. The Licensed Software constitutes confidential and proprietary information of KGI and KGI’s licensors and embodies trade secrets and intellectual property protected under United States copyright laws, other laws, and international treaty provisions. All right, title, and interest in and to the Licensed Software, including associated intellectual property rights, are and shall remain with KGI and KGI’s licensors. Subscriber shall not translate, decompile, reverse engineer, distribute, remarket or otherwise dispose of the Licensed Software or any part thereof. Subscriber may not download, use or otherwise export or re-export the Licensed Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. By installing or downloading the Licensed Software, Subscriber represent and warrant that Subscriber is not located in, under the control of or a national or resident of any country on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
4. Term and Termination. The term of this Agreement shall commence on the Effective Date. If Subscriber has selected a month-to-month Service plan, then this Agreement shall continue on a month-to-month basis. If Subscriber has selected an initial two-year Service plan, then this Agreement shall continue for two years and, unless otherwise terminated at the end of such two-year period, will continue on a month-to-month basis thereafter. If Subscriber is eligible for a free trial, as indicated at the time Subscriber signed up for the Service, then Subscriber shall not be charged for the first five (5) days of this Agreement. If Subscriber does not cancel this Agreement within forty-eight (48) hours prior to the end of the 5-day trial period, then at the end of the 5-day trial period, KGI will begin charging Subscriber for the Service in accordance with the terms hereof.
Subscriber may terminate this Agreement at any time; however, if Subscriber has signed up for an initial two-year Service plan, then Subscriber may not terminate this Agreement until after such initial two-year term. Subscriber’s continued use of the Service constitutes acceptance of this Agreement as it may be amended from time to time. If Subscriber is dissatisfied with the Service or any related terms, conditions, rules, policies, guidelines, or practices, Subscriber’s sole and exclusive remedy is to discontinue using the Service. KGI reserves the right, in its sole discretion, to terminate Subscriber’s account and use of the Service, with or without notice. Subscriber may terminate its account and this Agreement at any time and for any reason by providing notice of intent to terminate to KGI. If Subscriber leases any equipment from KGI, Subscriber shall return such equipment to KGI no later than seventy-two (72) hours following the termination of this Agreement. Such equipment will be returned in working order and good condition, ordinary wear and tear excepted. In the event the equipment is not timely returned or is not returned in working order or good condition, Subscriber shall pay KGI an amount equal to the then fair market value of such equipment, as reasonably determined by KGI. Any amounts owed or refunded to Subscriber under the terms of this Agreement will be processed as an account credit. Account credits will be applied against future payments owed by Subscriber. In the event an unused account credit exists as of the termination of this Agreement (after applying such credit to any additional amounts that may be owed by Subscriber following the termination), KGI will remit a check in the amount of such account credit to Subscriber within 6 weeks of termination provided. Checks will be sent to the address where the Service was provided, unless Subscriber otherwise notifies KGI at the time of termination that such check should be sent to an alternate address.
5. No Resell. Subscriber’s use of the Service is limited to Subscriber’s household or business. Subscriber may not resell, and/or otherwise extend the Service via wires and/or wireless or other means to other users outside of the Subscriber’s immediate household or business. Rental units, whether or not attached to Subscriber’s principal residence or place of business, are considered separate users, and separate Service must be established with KGI for each such rental unit. If Subscriber deploys a personal wireless network that is connected to the Service, Subscriber must secure such network so as to prevent others from accessing it. Subscriber may provide access to the wireless network to members of the Subscriber’s household, visiting friends and family, and Subscriber’s employees and agents, as applicable.
7. Disclaimer of Warranties. THE SERVICE IS PROVIDED AS-IS AND WITHOUT WARRANTY OF ANY KIND. KGI EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE/NONINFRINGEMENT. KGI DOES NOT WARRANT THAT THE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. KGI DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES OR ANY RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, APPROPRIATENESS FOR A PARTICULAR TASK OR APPLICATION, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KGI OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SUBSCRIBER IS ENTIRELY RESPONSIBLE FOR AND ASSUMES ALL RISK FOR THE USE OF THE SERVICE. SUBSCRIBER SHOULD NOT USE THE SERVICE IN HIGH-RISK ACTIVITIES WHERE SUBSTANTIAL DAMAGE COULD RESULT IF AN ERROR OCCURS. KGI DOES NOT WARRANT OR REPRESENT THAT IT’S SECURITY PROCEDURES WILL PREVENT THE LOSS OF OR IMPROPER ACCESS TO SUBSCRIBER’S DATA. KGI IS NOT RESPONSIBLE FOR TRANSMISSION ERRORS OR CORRUPTION OR SECURITY OF INFORMATION CARRIED OVER OR THROUGH TELECOMMUNICATIONS LINES OR OTHER TELECOMMUNICATIONS TECHNOLOGY.
8. Limitation of Liability. IN NO EVENT SHALL KGI BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION. INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSSES OF PROFITS, LOSS OF GOODWILL OR BUSINESS REPUTATION, BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT OR THE SERVICES, OR FOR ANY CLAIM BY ANY THIRD PARTY (INCLUDING FOR INTELLECTUAL PROPERTY INFRINGEMENT), EVEN IF KGI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THE TOTAL LIABILITY OF KGI TO SUBSCRIBER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE TOTAL FEES PAID BY SUBSCRIBER TO KGI IN THE THREE (3) MONTHS PRIOR TO THE EVENT CAUSING LIABILITY.
9. Uncensored Information. SUBSCRIBER UNDERSTANDS THAT CONTENT AND MATERIALS ON THE INTERNET ARE CREATED AND MAINTAINED BY THIRD PARTIES AND THAT PORTIONS OF SUCH MATERIALS MAY BE SEXUALLY EXPLICIT, OBSCENE, OFFENSIVE, OR ILLEGAL. IN NO EVENT SHALL KGI BE LIABLE TO ANY PERSON OR ENTITY, EITHER DIRECTLY OR INDIRECTLY, WITH RESPECT TO ANY MATERIALS FROM THIRD PARTIES ACCESSED THROUGH THE SERVICES. SUBSCRIBER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR SUBSCRIBER’S USE OF THE SERVICES AND INTERNET GENERALLY. KGI DISCLAIMS ANY AND ALL RESPONSIBILITY FOR CONTENT CONTAINED IN ANY THIRD PARTY MATERIAL ACCESSIBLE VIA THE SERVICE.
10. Exclusive Remedy. Subscriber’s sole right and remedy for breach of this Agreement by KGI if Subscriber is dissatisfied for any reason with the Service is to terminate this Agreement.
11. Indemnity. Subscriber shall indemnify and hold KGI harmless against any and all liabilities, losses, damages, judgments, claims, causes of action, and costs (including attorney fees and
disbursements) which KGI may hereafter incur, suffer, or be required to pay, defend, settle (subject to any limitations set forth in this Agreement), or satisfy as a result of Subscriber’s use of the Service. KGI reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Subscriber, in which event Subscriber will cooperate with KGI in asserting any available defenses.
12. No Breach or Default. In no event will KGI be liable or responsible to Subscriber, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond KGI’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 15 days or more.
entire agreement between Subscriber and KGI with respect to Subscriber’s use of the Service. KGI may revise, amend, or modify any of the Service Documents at any time and in any manner. Any revision, amendment, or modification will be effective immediately after KGI posts it at its website. Subscriber’s continued use of the Service constitutes Subscriber’s acceptance of and agreement to be bound by such modifications.
14. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in
accordance with the internal laws of the Commonwealth of Virginia without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any other jurisdiction. Any legal suit, action or proceeding arising out of or related to this Agreement [shall/may] be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Virginia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
15. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
16. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
17. Acceptance. By subscribing for this Service online, Subscriber has agreed that the Service will be subject to the terms and conditions of this Agreement and has agreed to be bound hereby.
18. Various Fees: We will assess the following fees for our Service, where applicable. Please see our Service Agreements for pricing details.
i. Installation Fees: Varies Depending on Equipment - see Installation Pricing
ii. Residential Equipment Control Fee: $12.00/month
iii. Commercial Equipment Control Fee: $20.00/month
iv. Equipment Repair/Replacement Fee: $200/each
v. Late Payment Fee: Charged immediately after due date - $20.00 per month delinquent
vi. Service Disconnect Date: 3 days after due date due to non-payment; Reconnect fee if service is restored
vii. Cancellation Fee: $80.00
viii. Early Termination Fee: Effective immediately at termination - $80.00
ix. Early Termination Fee for 2-year contract: Effective immediately at termination - 10% of total remaining months plus $80.00
x. Reconnection Fee for Terminated Service Due to Non-Payment or service disconnect: $80.00
xi. Unreturned Equipment Fee: 30 days after cancellation - $350 or cost of Equipment, whichever is greater
xii. Credit card payment chargeback fee: $94.00
xiii. Restocking Fee: 30% of quoted install special order cancellations
xiv. CAN-SPAM Damage Resolution Fees: $4,000.00
Print Name: ____________________________________________ Date:____________________________