TV Customer Terms and Conditions
The undersigned account holder(s) (“I,” “me,” “my” or “you”) agrees that this Agreement sets forth the terms and conditions that govern my receipt of Services from SMITHVILLE COMMUNICATIONS, INC and/or SMITHVILLE TELECOM, LLC (collectively “Smithville”), which may include, among others, video, high-speed data and home phone services provided to me by Smithville. IF YOU DO NOT ACCEPT THESE TERMS, PLEASE NOTIFY SMITHVILLE IMMEDIATELY AND SMITHVILLE WILL CANCEL YOUR SERVICE. IF YOU INSTEAD DECIDE TO RECEIVE SMITHVILLE SERVICES, IT WILL MEAN THAT YOU ACCEPT THESE TERMS AND THEY WILL BE LEGALLY BINDING.
Smithville Communications, Inc.
Smithville Telecom, LLC.
1600 W. Temperance
Ellettsville, IN 47429-0728
1. OUR SERVICE
These are the terms on which Smithville will provide you Services. As used herein, the term “Services” means any and all services provided to me by Smithville, which may include (i) video and/or audio programming services such as basic, classic, HD and premium services, Services provided on a per-channel or per-program basis, pay-per-play, pay-per-view, video on demand (“Television Services”), or SmithvilleTV® services , (ii) online content, features, functions and services (which may include Internet access) of the Internet service provider selected by me from among those offered now or in the future by Smithville for the Services (“ISP”) or the provider of on-line content, features, functions and Services that are used in conjunction with my ISP Service selected by me (“OLP”), as provided over Smithville’s network (“Internet Services”), (iii) telephone service that provides users with the ability to send and receive local and/or long distance calls and to access additional related features and functions through Smithville’s network (“Telephone Services”), and (iv) equipment based Services such as digital video recorder services. As used in this Agreement, the term “Smithville Parties” means Smithville and its corporate parents, affiliates and subsidiaries and their respective directors, officers, employees and agents.
(a) Program Choices and Commitment.
All programming package selections have their own rates, terms, and conditions. Subject to the following, the programming package selected by you must be maintained for a period of not less than the length of commitment term identified within Agreement Packet. After you have fulfilled your commitment term with respect to the selected programming package, you are no longer obligated to continue your subscription for programming for any specific duration.
(b) Your Programming Changes. You may change your programming selection at any time by notifying Smithville. A fee may apply to such changes (described in Sections 2 & 5(b)). Some programming must be purchased in minimum time period blocks or multiples of such minimum time periods.
(c) Our Programming Changes. Many changing considerations affect the availability, cost and quality of programming and customer demand for it. Accordingly, Smithville must reserve the unrestricted right to change, re-arrange, add or delete Smithville programming packages, the selections in those packages, Smithville’s prices, and any other Service Smithville offers, at any time. Smithville will endeavor to notify you of any change that is within Smithville’s reasonable control and its effective date. In most cases, this notice will be once per calendar quarter or twice per calendar year, as applicable. You always have the right to cancel your Service, in whole or in part, if you do not accept any substantial and significant (as determined by Smithville in its sole and absolute discretion) change (see Section 5). If you cancel your Service, certain fees as further described in Sections 2 and 5(b) or other charges may apply. Credits, if any, to your account will be posted as described in Section 5. If you do not cancel, your continued receipt of Smithville Service will constitute acceptance.
(d) Private Viewing. Smithville provides Services only for your private non-commercial use, enjoyment, and home viewing. The programming may not be viewed in areas open to the public or in commercial establishments, designated commercial packages shall be excluded from such limitation as further set forth in the terms and conditions for such packages. You may not rebroadcast, transmit, or perform the programming, charge admission for its viewing, or transmit or distribute running accounts of it. You may not use any of Smithville’s trademarks or the trademarks of any programming provider. Notwithstanding the provisions of Section 9, Smithville or any programming provider may prosecute violations of the foregoing against you and other responsible parties in any court of competent jurisdiction, under the rules and regulations of the Federal Communications Commission, and other applicable laws.
(e) Blackouts. Certain programming, including sports events, may be blacked out in your local reception area. Blackout restrictions are decided by the sports leagues and the other entities that own the local broadcast rights. If you circumvent or attempt to circumvent any of these blackouts, you may be subject to legal action.
(f) Your Viewing Restrictions. It is your responsibility to impose any viewing restrictions on other family members or guests, as you think appropriate. Smithville is not responsible to you or anyone else based on the content of Smithville programming. For more information on parental controls, locks and limits, and password protection for your account, please contact Smithville at (800) 842-4084 or smithville.com/contact.
(g) Change of Address. You must notify Smithville immediately of any change in your name, mailing address, residence address or telephone number.
In return for receiving Smithville Services, you promise to pay Smithville as follows:
(a) Programming. You will pay in advance, at Smithville’s rates in effect at the time, for all Services ordered by you or anyone who uses your Receiving Equipment, with or without your permission, until the Service is canceled. The outstanding balance is due in full each month. Smithville may, in Smithville’s discretion, accept partial payments, which will be applied to the oldest outstanding statement. No “payment in full” notation or other restrictive endorsement written on your payments will restrict Smithville’s ability to collect all amounts owing to Smithville. Smithville may reduce your Services to a minimum service level, at Smithville’s rates in effect at the time, or deactivate your Service if you do not pay your statements on time, after any applicable grace period.
(b) Taxes. You will pay all taxes or other governmental fees and charges, if any, which are assessed.
(c) Administrative Fees. In order to control the basic charges, which apply to all customers, Smithville charges fees that arise in specific circumstances only to those customers responsible for them. This list is not exclusive, and Smithville reserves the right to modify these fees or charge additional fees. Accordingly, you will pay the following fees when they are applicable:
(1) Account Activation Fee: Smithville may charge you a fee of: (i) up to $125.00; or (ii) the maximum amount permitted under applicable law prior to or upon activation of your Service account, whichever is less.
(2) Administrative Late Fee: If Smithville does not receive your payment by the due date on your bill, Smithville may charge you an administrative late fee (i) of up to 10%; or (ii) the maximum amount permitted under and subject to applicable law per month or partial month until the delinquent amount is paid in full. This late fee is not an interest charge, finance charge, time price differential or other such charge or payment of a similar nature. You acknowledge that this fee is reasonably related to the actual expense Smithville incurs due to late payment and may be subject to limitations set forth by law in the State of Indiana.
(3) Change of Service Fee: If you change your Service package to a lower-priced package, Smithville will charge you a fee of the lesser of (i) up to $345.00 or (ii) the maximum amount permitted by applicable law. If you change your Service package to a higher-priced package, such upgrade may be done at any time and at no charge; provided, however, that such upgrade shall require you to enter into a new commitment term for the upgraded package.
(4) Advanced Payment(s): Smithville may require that you provide advance payment(s)prior to or after activation of your Service, which Smithville may apply against any unpaid amounts at any time. Advance Payment(s) will appear on your bills as credits, from which Smithville will deduct its charges. Advance Payment(s) may not earn interest.
(5) Early Cancellation Fee: If you cancel your Service or Smithville deactivates your Service because of your failure to pay or for some other breach on your part, Smithville may charge you a fee of the lesser of (i) the sum of the remaining monthly payments to be made by you during the applicable commitment period for your selected programming packages and a prorated installation fee of $250 prorated for the remainder of your applicable commitment period; or (ii) the maximum amount permitted by applicable law. If you have upgraded to a more expensive programming option, your cancellation fee shall be equal to the sum of the remaining monthly payments that would have been made by you under the applicable commitment period for your previously selected Option at your previous rates for such Option and a prorated installation fee of $250 prorated for the remainder of the applicable commitment period for your previously selected Option; or the maximum amount permitted by the law.
(6) Returned Payment Fee: If any bank or other financial institution refuses to honor any payment, draft or instrument submitted for payment to your account, Smithville may charge you a fee the lesser of (i) up to $25.00; or (ii) the maximum amount permitted by applicable law. You acknowledge that this fee is not an interest charge, finance charge, time price differential or other such charge or payment of a similar nature and it is reasonably related to the actual expense Smithville incurs due to unsatisfied payment.
(7) Special Events and Programming Fees: For all programming not contained within the applicable programming package chosen by you, which includes without limitation programs on-demand and pay-per-view events, you will be charged pursuant to the current published schedules of fees for such programming as Smithville may charge from time to time.
(d) Billing Statements. Smithville will send you a statement for each billing cycle (usually once every 30 days). Statements will show: (1) payments, credits, purchases, and any other charges to your account, (2) the amount you owe Smithville and, (3) the payment due date.
(e) Questions About Your Statement. If you think your statement is incorrect or if you need more information about it, contact Smithville immediately. Smithville will try to resolve any complaints you have as promptly as Smithville can. UNDISPUTED PORTIONS OF THE STATEMENT MUST BE PAID BY THE DUE DATE TO AVOID A LATE FEE AND POSSIBLE REDUCTION OR DEACTIVATION OF SERVICE.
(f) Consents Regarding Credit. For new customers or prior Smithville customers that have not been provided Services within the past 6 months, in order to establish an account with Smithville, you authorize Smithville to inquire into your creditworthiness (subject to Section 6), by checking with credit reporting agencies. If you are delinquent in any payment to Smithville, you also authorize Smithville to report any late payment or nonpayment to credit reporting agencies. Due to the subjective nature of creditworthiness, Smithville reserves the right to require pre-payment for any Service via cashier’s check, money order, or credit card, notwithstanding your credit rating, past history, or practice.
(g) Collection Costs. To the extent permitted by law, you will pay Smithville any costs and fees Smithville reasonably incurs to collect amounts you owe Smithville.
3. CUSTOMER INFORMATION
(a) Representations. You represent that you are at least 18 years of age and a resident of the United States.
(b) Contact Information. You agree to provide true, accurate, current and complete contact information about yourself, and to maintain and promptly update your contact information to keep it true, accurate, and complete.
4. CHANGES IN CONTRACT TERMS
Smithville reserves the right to change the terms and conditions on which Smithville offers Services including the rate charged for the programming package selected during your commitment term (due to any governmental fees or surcharges, or provider fees that may apply). If Smithville makes any such changes, Smithville will notify you in writing. You always have the right to cancel your Service, in whole or in part at any time, and you may do so if you do not accept any such changed terms or conditions. If you do cancel, you may be charged an early cancellation fee. You will be issued a credit, if any, in accordance with Section 5. If you elect not to cancel your Service within 30 days of receipt of written notification of changes or receipt of your first invoice with new pricing, your continued receipt of Service from Smithville will constitute acceptance of the changed terms and conditions. If you notify Smithville that you do not accept such terms and conditions, then Smithville may cancel your Service as provided in Section 5.
(a) Term. This Agreement will remain in effect and Service will continue until canceled as provided herein. UNLESS YOU NOTIFY SMITHVILLE THAT YOU WISH TO CANCEL IT, SMITHVILLE WILL AUTOMATICALLY RENEW SERVICE THAT YOU SUBSCRIBE TO ON A PERIODIC BASIS, INCLUDING ANY MONTHLY OR ANNUAL SUBSCRIPTIONS AND SEASONAL SPORTS SUBSCRIPTIONS, AS LONG AS SMITHVILLE CONTINUES TO CARRY THE SERVICE.
(b) Your Cancellation. You may cancel Service by notifying Smithville. You may be charged certain fees as described in Section 2 and issued a credit as described below. Your notice is effective on the day Smithville receives it. You will still be responsible for payment of all outstanding balances accrued through that effective date. In addition to any fees provided in Section 2, if you cancel Service or change your Service package, you may be subject to an early cancellation fee if you entered into a separate programming commitment with Smithville in connection with obtaining Receiving Equipment, and have failed to maintain the required programming package for the required period of time. For Services prepaid by you and sold only in certain blocks of time or multiples of blocks of time, if you cancel such Service, Smithville will credit you only for full blocks of time not used. For example, if you subscribe for and pay for a year of such Service (sold in monthly blocks) from January through December but cancel on March 10, Smithville will credit you for the subscription fees for April through December. However, Smithville will not credit any fees for January through March. Additionally, Smithville will not credit seasonal sports subscriptions after the season starts.
(c) Smithville Cancellation. Smithville may cancel your Service at any time. In such case, you will still be responsible for payment of all outstanding balances accrued through that effective date, including any fees described in Section 2. In addition, Smithville may cancel your Service if you elect not to accept any changed terms described to you, as provided in Section 4.
(d) Credit Balances. If you have a credit balance after the close of your account and issuance of the final bill, Smithville will automatically issue you a refund. However, if your credit balance is less than $1.00, Smithville will not issue you a refund unless you make a written request for the refund. If you do not make such a written request for the refund within fifteen (15) days of the close of your account, you forfeit any credit balance remaining on your account and your account balance will be reset to zero.
(e) Payment Upon Cancellation. You acknowledge that you may have provided your credit or debit card account information to Smithville. You understand that you will incur fees and charges as a result of your receipt and use of Service and/or Receiving Equipment, and may incur early cancellation fees and/or equipment non-return fees (as specified in any lease, programming or other service commitment agreement you entered into in connection with obtaining Receiving Equipment). By giving Smithville your credit or debit card account information, you authorize Smithville to apply this method of payment, in accordance with applicable law, to satisfy any and all amounts past due or due upon cancellation. You further acknowledge that if you have provided your credit or debit account information to Smithville, you are required to maintain current credit or debit card information with Smithville and agree to notify Smithville whenever there is a change in such information, such as a change in the card number or the expiration date.
6. PERSONAL DATA
(b) I consent to Smithville calling the phone numbers I supply to it for any purpose, including the marketing of its current and future Services. I agree that these phone calls may be made using any method, including an automatic dialing system or an artificial or recorded voice. Upon my request, the phone numbers I have previously provided will be removed from Smithville’s phone marketing list. I can make this request by calling Smithville and asking to be placed on Smithville’s Do Not Call List.
(c) I acknowledge that being included in any state or federal “do not call” registry will not be sufficient to remove me from Smithville’s phone marketing list.
(d) I consent to Smithville emailing me, at any email address, including that of a wireless or mobile device, that I provide to Smithville (or that Smithville issues to me in connection with the Service), for any purpose, including the marketing of Smithville’s current and future Services. If my wireless or mobile provider charges me for receipt of such messages, I acknowledge and agree that I am responsible for paying such charges. I may revoke this authorization insofar as it relates to marketing messages at any time by calling or writing Smithville.
7. LIMITS ON SMITHVILLE’S RESPONSIBILITY
(a) Service Interruptions. Service may be interrupted from time to time for a variety of reasons. Smithville is not responsible for any interruptions of Service that occur due to acts of God, power failure or any other cause beyond Smithville’s reasonable control. However, because Smithville values its customers, for an interruption of a significant length of time that is within Smithville’s reasonable control, upon your request Smithville may provide what Smithville reasonably determines to be a fair and equitable adjustment to your account to make up for such Service interruption. IF SMITHVILLE MAKES SUCH AN ADJUSTMENT, THIS WILL BE YOUR SOLE REMEDY AND OUR SOLE DUTY IN SUCH CASES.
(b) Disclaimers. I AGREE THAT THE SERVICES ARE PROVIDED BY SMITHVILLE ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, REGARDING ANY SERVICE OR RECEIVING EQUIPMENT. SMITHVILLE MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, SECURE, OR FREE OF VIRUSES, WORMS, DISABLING CODE OR CONDITIONS, OR THE LIKE, OR THAT THE RECEIVING EQUIPMENT WILL OPERATE AS INTENDED. I FURTHER AGREE THAT SMITHVILLE IS NOT RESPONSIBLE FOR THE RECORDING OF OR FAILURE TO RECORD ANY PROGRAM OR PORTION THEREOF, OR FOR THE CONTENT OF ANY PROGRAM. I ACKNOWLEDGE THAT SMITHVILLE’S OR MY INSTALLATION, USE, INSPECTION, MAINTENANCE, REPAIR, REPLACE- MENT OR REMOVAL OF THE SERVICES, SMITHVILLE EQUIPMENT AND SOFTWARE MAY RESULT IN DAMAGE TO MY COMPUTER(S), TELEPHONES AND TELEPHONE ANSWERING DEVICES, TELEVISIONS, RECORDING AND PLAYBACK DEVICES, AUDIO EQUIPMENT, OR ANY CABLE MODEM, CABLING OR OTHER EQUIPMENT OR HARDWARE, INCLUDING SOFTWARE AND DATA FILES STORED THEREON. I SHALL BE SOLELY RESPONSIBLE FOR BACKING UP ALL EXISTING COMPUTER OR OTHER SOFTWARE OR DATA FILES PRIOR TO THE PERFORMANCE OF ANY OF THE FOREGOING ACTIVITIES. NEITHER SMITHVILLE, NOR THEIR VENDORS, LICENSEES OR PROGRAMMERS, SHALL HAVE ANY LIABILITY, AND EACH EXPRESSLY DISCLAIMS ANY RESPONSIBILITY WHATSOEVER, FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY EQUIPMENT, SOFTWARE, HARDWARE, DATA OR FILES.
(c) Limitations of Liability. THE SMITHVILLE PARTIES ARE NOT RESPONSIBLE FOR ANY CONSEQUENTIAL DAMAGES OR LOSSES RELATING TO THE RECEIVING EQUIPMENT OR ANY SERVICE, WHETHER BASED ON NEGLIGENCE OR OTHERWISE. REGARDLESS OF THE CAUSE, OUR TOTAL LIABILITY FOR DAMAGES OR LOSSES TO YOU AND ANY OTHER PERSONS RECEIVING OUR SERVICE, WILL IN NO EVENT EXCEED THE AMOUNT THAT YOU HAVE PAID TO SMITHVILLE FOR THE SERVICE THAT YOU RECEIVED DURING THE TWO (2) MONTHS IMMEDIATELY PRIOR TO THE SPECIFIC EVENT THAT GAVE RISE TO THE APPLICABLE DAMAGE OR LOSS. THIS ALLOCATION OF RISK IS REFLECTED IN OUR PRICES. You may have greater rights than described above under Indiana law. You should consult them.
(d) Content. You understand that you are responsible for managing the accessibility to any and all Adult Content. Smithville is not responsible, and cannot be held liable, for any accidental, intended or other viewing of such content by minors or other parties. (e) Warranty Services. You agree that this Agreement does not provide for, and the Service does not include, any warranty services or other services that Smithville might provide separately, including, without limitation, any fee-based or other warranty programs.
8. RESOLVING DISPUTES In order to expedite and control the cost of disputes, you and Smithville agree that any legal or equitable claim relating to this Agreement, any addendum, or your Service (referred to as a “Claim”) will be resolved as follows:
(a) Informal Resolution. Smithville will first try to resolve any Claim informally (except for Claims described in Section 9(d) below) for a period of at least fifteen (15) days after Smithville receives notice of the Claim in writing. You will send your notice to the address on the first page of this Agreement, and Smithville will send its notice to your billing address.
(b) Formal Resolution. Except as provided in Section 9(d), if Smithville cannot resolve a Claim informally, Smithville may elect to arbitrate that Claim in accordance with the terms of this Section 8 rather than litigate the Claim in court; provided, however, that if a Claim is not submitted to arbitration, jurisdiction and venue for any suit between you and Smithville shall be in Indiana State Court in Monroe County, Indiana. Arbitration means you will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to Indiana law. The arbitration will be held in Monroe County, Indiana unless you and Smithville both agree to another location or telephonic arbitration.
(c) Special Rules. (i) In the arbitration proceeding, the arbitrator has no authority to make errors of law, and any award may be challenged if the arbitrator does so. Otherwise, the arbitrator’s decision is final and binding on all parties and may be enforced in any federal or state court that has jurisdiction. (ii) Neither you nor Smithville shall be entitled to join or consolidate claims in arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity. Accordingly, you and Smithville agree that the no Class Action Procedures apply to Smithville arbitration. If, however, the law of the State of Indiana would find this agreement to dispense with class arbitration procedures unenforceable, then this entire Section 8 is unenforceable.
(d) Exceptions. Notwithstanding the foregoing: (i) any Claim based on Section 1(i) above, and (ii) any dispute involving a violation of the Communications Act of 1934, 47 U.S.C. §§ 605, the Digital Millennium Copyright Act, 17 U.S.C. § 1201, the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521, or any other statement or law governing theft of service, may be decided only by a court of competent jurisdiction. YOU MUST CONTACT SMITHVILLE WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A CLAIM, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
(a) Notice. Notices to you will be deemed given when personally delivered, addressed to you at your last known address and deposited in the U.S. Mail (which may include inclusion in your billing statement), or sent via internet to the email address you provided Smithville, or sent via satellite to your receiver, or delivered when a voice message is left at the telephone number on your account. Your notices to Smithville will be deemed given when Smithville receives them at the address or telephone number on the first page of this Agreement.
(b) Applicable Law. The interpretation and enforcement of this Agreement shall be governed by the rules and regulations of the Federal Communications Commission, other applicable federal laws, and the laws of the State of Indiana. This Agreement is subject to modification if required by such laws. Notwithstanding the foregoing, Section 8 shall be governed by the Federal Arbitration Act.
(c) Assignment of Account. Smithville may assign your account or this Agreement and all rights and/or obligations hereunder to any third party without notice for any purpose, including, without limitation, collection of unpaid amounts, or in the event of an acquisition, corporate reorganization, merger or sale of substantially all of the party’s assets to another entity. You hereby consent to such assignment. You must continue making all required payments to Smithville in accordance with your billing statement, unless notified otherwise.
(d) Other. This Agreement and any lease, activation, programming, or other service commitment agreement that you entered into in connection with obtaining Receiving Equipment constitute the entire agreement between you and Smithville. No salesperson or other representative is authorized to change it at any time. If any provision is declared by a competent authority to be invalid, that provision will be deleted or modified to the extent necessary, and the rest of the Agreement will remain enforceable. The terms of this Agreement that expressly or by their nature survive termination shall continue thereafter until fully performed.