Effective date: July 29, 2013
BY CLICKING ON THE "I ACCEPT" BUTTON OR BY DOWNLOADING, INSTALLING OR USING ANY OF THE NETZERO SOFTWARE OR SERVICES (INCLUDING,
WITHOUT LIMITATION, THE NETZERO DSL AND DIAL UP INTERNET ACCESS SERVICES, MOBILE BROADBAND SERVICES, VIRTUAL PRIVATE NETWORK ("VPN") SERVICES, SOFTWARE DISTRIBUTED OR MADE
AVAILABLE BY NETZERO, E-MAIL SERVICES, AND ANY SERVICES PROVIDED ON ANY OF THE WEB SITES MANAGED OR OWNED BY NETZERO (COLLECTIVELY,
THE "NETZERO SERVICE" OR "NETZERO SERVICES")), YOU AGREE TO BE BOUND BY:
ALL OF THE ABOVE ARE REFERRED TO COLLECTIVELY AS THE "RULES."
- THESE TERMS OF SERVICE ("TERMS OF SERVICE"), INCLUDING THE BINDING ARBITRATION CLAUSE IN SECTION 8 BELOW;
- THE ACCEPTABLE USE GUIDELINES FOR THE NETZERO SERVICES ("ACCEPTABLE USE GUIDELINES");
- NETZERO SOFTWARE LICENSE AGREEMENTS AND ANY APPLICABLE END USER LICENSE AGREEMENTS ("LICENSE AGREEMENTS"); AND
FOR SUBSCRIBERS TO THE NETZERO MOBILE BROADBAND SERVICES AND VPN SERVICES, YOUR AGREEMENT IS WITH NETZERO WIRELESS, INC. FOR SUBSCRIBERS TO OTHER
NETZERO SERVICES, YOUR AGREEMENT IS WITH NETZERO, INC. COLLECTIVELY, NETZERO WIRELESS, INC. AND NETZERO, INC. ARE "NETZERO" AS THAT
TERM IS USED IN THESE TERMS OF SERVICE.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION, INCLUDING THE ARBITRATION CLAUSE IN SECTION 8,
WHICH REQUIRES YOU TO RESOLVE ANY DISPUTES THROUGH INDIVIDUAL ARBITRATION, RATHER THAN BY JURY TRIALS OR CLASS ACTIONS. IF YOU DO NOT AGREE
TO BE BOUND BY ANY PROVISION OF THE RULES, YOU MUST DISCONTINUE YOUR USE OF THE NETZERO SERVICES, UNINSTALL ANY NETZERO SOFTWARE AND
TERMINATE YOUR ACCOUNT.
The most current version of the Rules may be found at http://www.netzero.net/ (the "NetZero
Site"). Please review the Rules at the NetZero Site prior to accessing the NetZero Services as the Rules may have changed since the date
of production of this version of the Terms of Service. NetZero may change the Rules and the scope of the NetZero Services, in whole or in
part, at any time. Posting of the updated Rules at the NetZero Site will constitute notice to you of any such changes, although NetZero may
choose other types of notice for certain changes. Changes will be effective upon notice, although NetZero will use reasonable efforts to
provide you with thirty (30) days' advance notice of material changes that adversely impact you. Your continued use of the NetZero Services
following notice constitutes your acceptance of all changes, and each use of the NetZero Services constitutes your reaffirmation of your
acceptance of the Rules. If you do not agree to changes to the Rules or the scope of the NetZero Services, your sole and exclusive remedy
will be to terminate your account and use of NetZero Services and uninstall any NetZero Software (as defined below), although if you have a
prepaid account or a minimum term commitment you will not have the right to terminate your account and your use of the NetZero Services
unless the change is material and adverse to you.
When signing up for one of our broadband services ("DSL" and "Mobile Broadband") or our VPN service, you will be provided with, or you may
already have, a free or billable, dial-up access account including a NetZero email address. Such account and email address and the terms
controlling that account and email address are governed by these Terms of Service. Our DSL, Mobile Broadband and VPN services, including in
some cases the billing, provisioning, installation, devices, and delivery of such services, are provided by one or more third parties
and NetZero contracts with such third parties to provide such services on its behalf. All references to NetZero in these Terms of Service
including, without limitation, the indemnification provisions and limitations on liability, shall also apply to the third parties with
whom NetZero contracts to provide you with NetZero Services and such third parties shall be entitled to all of NetZero's rights hereunder.
- Rules. The Rules govern your use of the NetZero Services. NetZero reserves the right, but is not obligated, to prohibit
any conduct or to remove any materials or content in violation of the Rules or which NetZero believes in its sole discretion to be
illegal or potentially harmful to others or may expose NetZero to harm or liability. NetZero may suspend or terminate your use of
NetZero Services for any reason at any time, including if it determines that you have failed to comply with any of the Rules.
NetZero reserves the right to take or terminate the use of any user name or e-mail address at any time.
- NetZero Services. NetZero offers a variety of services, including DSL and Mobile Broadband Internet access, VPN services, dial-up
Internet access, and e-mail services. NetZero retains the right, at its discretion, to make changes to the NetZero Services,
including its fees and billing methods and the amount of time a user may use NetZero Services for free or for a specified fee, or
to discontinue some or all of the NetZero Services. NetZero retains the right to limit, restrict or require the use of third party
software or services in connection with the NetZero Services. NetZero retains the right to change, suspend or terminate your use
of the NetZero Services at any time for any reason, without notice, and nothing herein shall be construed to limit that right.
- Equipment. For purposes of these Terms of Service, "Equipment" shall mean the modem, router, Mobile Broadband
USB modem and wireless hotspot device, and/or other equipment provided by NetZero for use with NetZero Services, and "Software" shall mean the software provided by NetZero in connection with the NetZero Services.
- Monitoring of Network Performance. NetZero and its third party service providers may measure and monitor network
performance and the performance of your NetZero Services. NetZero will access and record information about your computer's
profile and settings and the installation of Software in order to provide customized technical support, and you agree to permit
NetZero to access and record such data for the purposes described in these Terms of Service. You hereby consent to NetZero's
monitoring of your NetZero Services and network performance, and the access to and adjustment of your computer settings, as
they relate to the NetZero Services, Software, or other services which NetZero may offer from time to time.
- General Service Limitations. Bandwidth is provided on a per-line basis, and the speed and bandwidth available to
each computer or device connected to the network may vary depending upon the number, types and configuration of computers or
devices using the NetZero Services and the type of use (e.g., streaming media or downloading larger files, etc.), network or
Internet congestion, and/or the condition of your telephone line and the wiring inside your location, among other factors.
- Mobile Broadband Service Limitations. The Mobile Broadband service is subject to the following limitations:
- Coverage Maps. Coverage maps provided for the Mobile Broadband service do not guarantee coverage, but rather
approximate your anticipated coverage at a particular location. Certain parts of a residential or commercial structure,
city, metropolitan area, or other geographic region may have limited or no coverage. Various factors (e.g., terrain,
foliage, weather/atmospheric conditions, building structure/materials, network traffic congestion), many of which are
beyond the control of NetZero or our third party providers, may affect your actual coverage at a particular location at
any given time.
- Free Plan. Your right to access the NetZero Mobile Broadband free service plan from a specific device terminates twelve (12) months from the date you initially sign up for this free service and may not be renewed. If you upgrade to a pay plan with that device during that twelve (12) month period, you may not return to the free service plan.
- Availability of Service. The Mobile Broadband service may not be available at any or all times in all areas.
Even within coverage areas, and for a variety of reasons that may be beyond NetZero's reasonable control, service
availability, quality, signal strength, and network speeds may vary, be lower than advertised, or be insufficient for your
desired use of the service. You agree that NetZero is not liable for problems relating to Mobile Broadband service
availability or quality, regardless of the cause(s) of these problems.
- Maintenance. To provide the best possible service to its customers, NetZero or its third party provider(s)
periodically performs maintenance on its network. In some cases, this may require NetZero to conduct either a planned or
unplanned interruption of the Mobile Broadband service. NetZero will use commercially reasonable efforts to schedule
maintenance outages in a way that minimizes the impact on customers, but NetZero cannot guarantee that your Mobile
Broadband service will not be interrupted and cannot always give advance notice of such outages. You acknowledge and agree
that NetZero shall not be responsible for any losses or damages (of any kind) that may be suffered by you as a result of
any service interruptions due to maintenance outages.
- Network Management. NetZero reserves the right to engage in reasonable network management to protect the
overall integrity of its network, including detecting malicious traffic patterns and attempting to prevent the distribution
of viruses or other malicious code, and through techniques such as reducing the aggregate bandwidth available to excessive
bandwidth users during periods of congestion. While the determination of what constitutes excessive use depends on the
specific state of the network at a particular location at any given time, excessive use will be determined primarily by
resource consumption. For further information, please refer to NetZero's Acceptable Use Guidelines.
- Tampering with the Equipment. You must not use the Mobile Broadband service with any equipment that has an
altered electronic serial number or equipment identifier or any equipment that has undergone a factory reset, without
seeking and obtaining NetZero's express advance written permission in each instance. In addition, you may not use any
serviced, altered, modified, stolen, or tampered equipment with the service, and you may not permit any other person to do
so (unless specifically authorized in advance by NetZero, in writing).
- VARIATIONS OF SPEED AND SERVICE QUALITY DISCLAIMER. THE SPEED AND BANDWIDTH AVAILABLE TO EACH COMPUTER OR DEVICE
CONNECTED TO THE NETZERO NETWORK, AND HENCE THE QUALITY OF THE MOBILE BROADBAND SERVICE, MAY VARY FOR MANY REASONS, WITHIN
OR BEYOND NETZERO'S CONTROL, INCLUDING WITHOUT LIMITATION: (i) THE NUMBER OF USERS, COMPUTERS OR DEVICES CONNECTED
SIMULTANEOUSLY TO THE NETWORK, AND THE TYPES OF USAGE IN WHICH THEY ARE ENGAGED; (ii) THE AMOUNT OF DATA BEING TRANSFERRED
OVER THE NETWORK, (iii) NETWORK SIGNAL QUALITY; (iv) PERFORMANCE CAPABILITIES OF YOUR EQUIPMENT AND THE EQUIPMENT OF THIRD
PARTIES; (v) TERRAIN AND FOLIAGE; (vi) WEATHER AND ATMOSPHERIC CONDITIONS; AND (vii) BUILDING STRUCTURE AND MATERIALS.
NEITHER NETZERO, NOR ITS AFFILIATES, AGENTS OR SUPPLIERS, WARRANTS OR REPRESENTS THAT THE EQUIPMENT OR SERVICE (A) WILL
MEET YOUR REQUIREMENTS OR (B) WILL BE UNINTERRUPTED, WITHOUT DELAY, ERROR-FREE, OR FREE FROM SERVICE DEGRADATION.
- Theft or Fraudulent Use of the Service; Loss or Theft of Equipment. If your Equipment is lost or stolen, or if you
become aware at any time that the Mobile Broadband service is being fraudulently used, it is imperative that you notify NetZero
immediately, so that NetZero can suspend your Mobile Broadband service (and the ability to use any Equipment that you have
purchased for use in association with that Service) in order to prevent further usage and limit your liability. You can do this
by calling NetZero's customer service department at 800-939-8674. Once you notify NetZero, NetZero will suspend your Mobile
Broadband service (i.e., until you obtain replacement Equipment usable with the service or such fraudulent activity has ceased,
as applicable), and you will not be responsible for charges incurred with the lost or stolen Equipment during that period of
2.0 Your Obligations
- Completion of NetZero Questionnaires, Surveys and Registration Forms. In exchange for NetZero providing the NetZero
Services, you agree to provide NetZero with accurate and complete information on its registration forms. You may also be asked to
complete questionnaires and surveys, and if you complete such questionnaires and surveys, you agree to provide NetZero with accurate
and complete information. You understand that NetZero relies on the information you supply and that providing false or incorrect
information may result in provisioning or delivery delays or the suspension or termination of the NetZero Services. You agree to
promptly notify NetZero whenever your personal or billing information changes (including for example, your name, address, telephone
number, and credit card number and expiration date).
- Information Provided by NetZero. You expressly permit and authorize NetZero and its Affiliates (and such third parties as may be authorized by NetZero, subject
information or materials prepared by NetZero or by (or on behalf of) other entities, including information, advertisements and
solicitations. An "Affiliate" is a company that controls, is controlled by or is under common control with NetZero. See the Privacy
Policy for more information regarding your ability to opt-out of receiving emails from NetZero. You may also click on the following
link to update your email preferences: (http://my.netzero.net/s/updateoptins?r=update).
- Charges and Billing. By using the NetZero Services, you agree to accept the fees you may incur as a result of using NetZero
Services, including but not limited to: a) service or subscription fees, b) applicable taxes, c) surcharges, d) recovery fees, e)
telephone charges, f) activation fees, g) installation fees, h) set-up fees, i) equipment charges, j) termination fees, k) other
nonrecurring charges, l) fees for supplemental services or features, m) restocking fees, and n) purchases made through the use of NetZero
Services. The taxes, fees and other charges detailed in subsections b) through e) may vary on a monthly basis; any variations will be
reflected in your monthly charge.
Subject to any applicable law, fees and charges for NetZero Services are non-refundable unless the pricing terms for the applicable NetZero Service expressly says otherwise. NetZero may provide a thirty (30) day money back guarantee for its DSL Service (see your service plan description). If your plan includes a money back guarantee, your thirty (30) day money-back guarantee begins upon the date NetZero begins billing you for the DSL service. During this thirty (30) day period you may cancel the DSL service and receive a full refund of the monthly charge you have actually paid to NetZero as well as any activation charges paid to NetZero; provided, however, in order to receive your refund you must return all Equipment to NetZero in good working condition within thirty (30) days of termination. NetZero will provide you with a pre-paid mailing label and instructions for the return of your Equipment. In the event you fail to return the Equipment within thirty (30) days, you will be unable to receive your refund. Early termination fees will not apply to DSL service terminated within the thirty (30) day money-back guarantee period. The thirty (30) day money-back guarantee does not apply to customers who change between monthly, annual, bundled or other DSL service pricing plans and does not apply to registrations with free introductory periods. The money-back guarantee is limited to one per subscriber per address.
You must provide a valid method of payment (i.e. credit card, checking account, etc., depending on the type of NetZero Service) prior to and during any times you receive billable NetZero Services and pricing plans. You are responsible for keeping all of your billing information, including your payment method, up to date. You expressly authorize NetZero (or third parties acting on behalf of NetZero) to charge all NetZero subscription fees and other charges, including payment transaction fees for certain payment methods, to the payment method you have designated. You acknowledge and agree that NetZero will not obtain any additional authorization from you for any recurring payments or automatic billing options. If you have any billing-related questions or want to stop a recurring payment from being charged to your designated payment method, call our toll-free billing support number (1-866-841-1442). Some fees that you may incur using the NetZero Services may accumulate on your NetZero account before they are charged to your designated payment method. Set up fees, activation fees, installation fees, other non-recurring fees, and Equipment charges, if applicable, will be included in your first month's bill. NetZero will assess a late fee of 1.5% per month (or the highest amount permissible by law, whichever is less) if your payment is more than thirty (30) days past due. You will be liable for any fees NetZero incurs in its efforts to collect any unpaid balances from you. ANY BILLING PROBLEMS OR DISCREPANCIES MUST BE BROUGHT TO NETZERO'S ATTENTION BY YOU WITHIN ONE HUNDRED (100) DAYS FROM THE DATE YOU ARE BILLED. IF YOU DO NOT BRING THEM TO NETZERO'S ATTENTION WITHIN ONE HUNDRED (100) DAYS, YOU AGREE THAT YOU WAIVE YOUR RIGHT TO DISPUTE SUCH PROBLEMS OR DISCREPANCIES WITH NETZERO. NetZero may suspend or terminate your use of the NetZero Services if you fail to provide a valid designated payment method upon request, or if NetZero is unable for any reason to bill charges to your designated payment method.
For monthly subscribers, your NetZero Service will typically be billed on the same day each month based on the date you register for your service, unless you are notified otherwise by NetZero. For example, if you register for service on the 15th of the month, you will be billed on (or shortly after) the 15th each subsequent month for service. Note that if you register on the 29th, 30th, or 31st of the month, your billing date will be the 1st of the month. For multi-month subscribers (i.e. annual and semi-annual), your NetZero Service will be billed on the same day of the month at the prescribed renewal period. Billing for your dial-up or VPN NetZero Service will automatically begin upon registration of your service. Billing for the first month of your NetZero DSL service will be prorated based on the date provisioning of your service is complete and ready for use ("Service Ready Date"). Please note that the Service Ready Date is not determined by the date you install and/or initially use the DSL service, but rather the date such service is provided to your location by NetZero's service provider. Billing for the first month of your NetZero Mobile Broadband service will be prorated based on the estimated arrival of your Mobile Broadband Equipment. Please note that the first month's prorated bill is not determined by the date you install and/or initially use the Mobile Broadband service, but rather the date Equipment is expected to arrive. If you are an existing NetZero pay customer and you sign up for a new NetZero Service, the term and fee for the first period of your new NetZero Service will be pro-rated to coincide with your current billing cycle.
If you are purchasing a VPN, dial-up or DSL Internet access service plan, at the end of any free or discounted period, if applicable, and at the end of each plan term, you will be automatically renewed into and charged for the same plan at the then current price unless you select a different plan or cancel your service. If you are purchasing a Mobile Broadband service plan, (i) access to the free service terminates twelve (12) months from the date you initially sign up for this free service and may not be renewed, and (ii) at the end of any discounted period, if applicable, and at the end of each plan term, you will be automatically renewed into and charged for the same plan at the then current price unless you select a different plan or cancel your service.
You are responsible for all fees and charges incurred, including applicable taxes and purchases made by you or anyone you allow to use your account, including your children and other members of your family. This means that, unless your account or payment method information is obtained unlawfully or fraudulently by someone other than those authorized to use your account, you will be responsible for all usage and purchases under your account.
YOU ARE RESPONSIBLE FOR ALL AMOUNTS CHARGED BY NETZERO AND BY YOUR TELEPHONE SERVICE PROVIDER FOR ALL CALLS YOU MAKE, INCLUDING CALLS TO NETZERO'S CUSTOMER SUPPORT LINES. CHECK WITH YOUR LOCAL TELEPHONE SERVICE PROVIDER TO DETERMINE WHETHER THE ACCESS TELEPHONE NUMBERS YOU USE TO ACCESS THE NETZERO SERVICES ARE PROVIDED AT NO CHARGE BY YOUR TELEPHONE SERVICE PROVIDER.
FOR DIAL-UP SERVICE, BY ACCEPTING THE ACCESS NUMBERS DURING THE REGISTRATION PROCESS OR USING ACCESS NUMBERS YOU MAY OTHERWISE SELECT, YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ALL TELEPHONE CHARGES RELATED TO ACCESSING OUR SERVICES, AND NETZERO WILL NOT REIMBURSE YOU FOR ANY SUCH CHARGES INCLUDING LONG DISTANCE OR TOLL CHARGES. UNLESS YOUR PLAN PROVIDES OTHERWISE, YOU WILL BE CHARGED A FEE FOR CALLS TO NETZERO TECHNICAL SUPPORT.
If your NetZero Service plan is time-metered (meaning that you have a set number of hours during which you may utilize the service each month), you will be responsible for paying any per minute charges imposed by NetZero for exceeding your monthly allotment of hours. Use of the NetZero Service for time-metered plans is measured in minutes and is rounded up to the next whole minute.
You may obtain pricing information for supplemental services or features, as well as answers to common billing questions by going to the NetZero Site.
Under your Mobile Broadband service plan, your data usage will be deducted from your plan's available monthly data allocation. Unused data expire at the end of each billing cycle. If you use your allocation of data before the end of the data expiration date, you may (i) purchase an additional data allocation through our top-up service to continue using the Mobile Broadband service during the current billing cycle (top-up data allocations are good for thirty (30) days from date of purchase), (ii) upgrade your plan, or (iii) wait until the beginning of the next billing cycle to have access to the Mobile Broadband service. Under the Mobile Broadband free service plan, you will be allocated a certain amount of data usage per month with your purchase of Equipment (see your plan description for more information). Your right to access this free plan expires twelve (12) months from the date you initially sign up for this free service and may not be renewed.
- Registration Information. You must register for NetZero Services using your own name. During registration, you will be asked to provide the name or number you wish to use as your login identification. If the login identification you request is not available you will be asked to supply another login identification. NetZero reserves the right to verify the accuracy of the information you submit in connection with your registration for NetZero Services (including, without limitation, performing cross tabulations with external databases) and you hereby consent to NetZero's verification of such information.
- Bypassing or Disabling Any Portion of the NetZero Services or Software. If you bypass or disable any portion of the NetZero Services or Software, or you attempt to circumvent NetZero's billing of you in any way, you are in violation of the Rules and NetZero may suspend or terminate your use of NetZero Services without notice. Termination of your NetZero Services will not excuse you from any criminal or other civil liabilities that may result from your actions. If your NetZero Service is terminated for any reason you will be unable to access your NetZero account, including any undelivered e-mail messages in your NetZero e-mail account.
- Accessing NetZero Services. You are responsible for obtaining and maintaining, at your own expense, all input/output devices or equipment (such as modems, terminal equipment, computer equipment and software) and communications services (including, without limitation, long distance or local telephone services) necessary to access the NetZero Services, and for ensuring such equipment and services are compatible with NetZero's requirements. If you subscribe to NetZero DSL or Mobile Broadband services, NetZero or its service provider will provide you with the Equipment. You are responsible for maintaining the Equipment. If you are purchasing a service from NetZero that does not include Internet access, you are responsible for obtaining, at your own expense, such Internet access from NetZero or another provider.
- Use of your NetZero Account. You are responsible for all use of your NetZero Services and for the security of your login identification, your password and any security lock code that you use to protect access to your data, NetZero personal profile, your file name(s) and files, network and user access, and any information you disseminate through use of NetZero Services or through other Internet services. Except as expressly allowed in the Rules, you may not transfer or permit any other person to use your NetZero account. You may not use more than one login session at a time, even if you maintain more than one NetZero account.
- No Resale of NetZero Services and NetZero Site. The NetZero Services are for personal, non-commercial use of registered users only and may not be copied, resold, leased, transferred, exchanged or bartered. If you accessed the NetZero dial-up Internet access service through a CD-ROM disc or diskette, you may give the disc or diskette to friends and family, but you may not sell it or copy it.
- Trademarks. You may not use any of NetZero or any of its Affiliates' trade names, trademarks, service marks, logos, domain names, or other distinctive NetZero features.
- Transmission and Receipt of Content. Certain of the NetZero Services may allow you to post or send content that can be viewed by others ("User Generated Content"). NetZero exercises no control over User Generated Content passing through its network or equipment, or available on or through the NetZero Site or the NetZero Services. You may only post or send User Generated Content on the NetZero Site or through the NetZero Services that you created or that you have permission to post or send. You may not post User Generated Content that violates the Rules. NetZero does not claim ownership of any User Generated Content. By submitting User Generated Content to us, you grant us, our parent and other Affiliates, and distributors the right and license to use, copy, display, perform, distribute, adapt and promote this User Generated Content in any medium.
You agree that NetZero is not liable for User Generated Content that is provided by others. NetZero has no duty to pre-screen User Generated Content, but NetZero has the right to refuse to post, edit, or deliver submitted User Generated Content. NetZero reserves the right to remove User Generated Content for any reason, but is not responsible for any failure or delay in removing such material. NetZero reserves the right to block any user's access to any content, web site or web page in its sole discretion. You are responsible for any content you post to the NetZero Services, and the consequences for sharing such content.
Disputes may arise between you and others or between you and NetZero related to content or commerce, including User Generated Content. Such disputes could involve, among other things, the use or misuse of domain names; the infringement of copyrights, trademarks or other rights in intellectual property; defamation; fraud; the use or misuse of information; and problems with online auction or commerce transactions. You agree that all claims, disputes or wrongdoing that result from, or are related in any way to, the content of information that you post, transmit, re-transmit or receive through the NetZero Services, NetZero's network or NetZero's equipment are your sole and exclusive responsibility.
- Email. The NetZero email service and network including, without limitation, email addresses, are owned by NetZero, and NetZero establishes practices and limits concerning your email account, which practices and limits may be changed from time to time. Limits may include, without limitation, the period of time your email will be retained; the number, size and type of email messages and attachments you may send and receive; and the amount of space allocated to your email storage. Email in inactive or terminated accounts may be deleted in accordance with NetZero's internal policies. You agree to use NetZero email services only to send and receive personal messages. NetZero prohibits unsolicited email to be sent or received through the NetZero Services, and uses a variety of techniques to eliminate or minimize email or attachments that NetZero in its sole discretion believes are unsolicited, inappropriate, or harmful. In doing so, NetZero may block or delete email or attachments sent by you or to you, even though such e-mail or attachments may not be unsolicited, inappropriate, or harmful. You understand that unless otherwise specified in your service level or plan terms, NetZero does not utilize anti-virus software or services to scan for viruses. If your service level or plan terms do include anti-virus software or services, you understand that not all viruses can be detected and/or cleaned. You are responsible for any damages caused by your decision to download any email or attachments.
You agree that NetZero is not responsible for any email or attachments that are blocked or deleted for any reason and that you have no right, and NetZero has no obligation, to retrieve or access any such deleted or blocked email or attachments. You agree that NetZero is not responsible for any email or attachments that it fails to block or delete, even if such e-mail or attachments contain viruses or are otherwise harmful to your computer.
You may not incorporate a third party's trademark within your NetZero e-mail address without permission of the trademark owner. Without limiting the generality of NetZero's rights as set forth in these Terms of Service, NetZero reserves the right to change your e-mail address and associated member identification if, in NetZero's sole discretion, it is inappropriate or infringes on the rights of a third party.
NetZero may, from time to time, place a message and or a hypertext link geared to promoting the benefits of NetZero Services or a third party sponsor in the footer location of outgoing e-mail messages transmitted from your account. You agree to permit NetZero to include such messages or links in e-mail messages you transmit, and agree not to alter, obscure or remove such messages or links.
- Software Downloads. As part of the NetZero Services, NetZero may from time to time download software owned by NetZero or third parties to your computer. Your use of the NetZero Services constitutes your consent to such downloads.
- Links to Third Party Sites. The NetZero Services may contain links to other sites on the Internet that are owned and operated by third parties. In some instances these sites are co-branded and the third parties are entitled to use NetZero's name and logo on these sites. NetZero does not control the information, products, or services on these third party sites. The inclusion of any link does not imply endorsement by NetZero of the site or any association with their operators. Because NetZero has no control over such sites and resources, you agree that NetZero is not responsible or liable for the availability or the operation of such external sites, for any material located on or available from any such sites, or for the protection of your privacy data by third parties. Any dealings with or participation in promotions of advertisers through the NetZero Services, including the payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings or promotions, are solely between you and the advertiser or other third party. You further agree that NetZero shall not be responsible or liable, directly or indirectly, for any loss or damage caused by the use of or reliance on any such material available on or through any such site or any such dealings or promotions.
- System Management. You are solely responsible for obtaining, installing, configuring, and maintaining suitable equipment and software, including any necessary system or software upgrades, patches or other fixes, which are or may become necessary to access the NetZero Services and to operate your computer.
- Indemnification of NetZero. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD NETZERO AND ITS SUPPLIERS, SPONSORS, PARTNERS OR OTHER CO-BRANDERS AND AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES AND COSTS (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND COURT COSTS) (COLLECTIVELY, "CLAIMS") ARISING OUT OF OR RELATING TO YOUR BREACH OF ANY OF THE RULES OR USE (BY YOU OR ANY THIRD PARTY) OF NETZERO SERVICES THROUGH THE NETZERO ACCOUNT ASSIGNED TO YOU, EXCEPT TO THE EXTENT SUCH CLAIMS DIRECTLY RESULT FROM NETZERO'S OWN WILLFUL MISCONDUCT. THE FOREGOING INDEMNIFICATION OBLIGATION SHALL SURVIVE ANY TERMINATION OF NETZERO SERVICES PROVIDED TO YOU.
3.0 Termination and Cancellation
- Mobile Broadband, DSL, Dial-up or VPN Subscribers with Month-to-Month Accounts. If you are a month-to-month Mobile Broadband service, DSL service, dial-up service or VPN service customer (e.g., you have fulfilled your minimum commitment or your subscription plan did not include a minimum commitment), either you or NetZero may terminate your applicable NetZero Service without cause by giving notice to the other. Termination by you will be effective upon your notice to NetZero. Activation, set-up or pre-paid service fees paid at the initiation of your NetZero Service, if any, are not refundable, except during the thirty (30) day money-back guarantee period for DSL services, if applicable. Termination by NetZero shall be effective thirty (30) days after the date of notice to you, except as otherwise provided in these Terms of Service. In the event of termination by NetZero, for any reason, you will be required to pay the remaining balance of the charges applicable to your NetZero Service through the effective date of termination.
- Early Termination Fee. Your NetZero Service may include a minimum term commitment (see your service plan description). Your minimum term begins on the billing start date as described in the foregoing section titled "Charges and Billing." IN THE EVENT THAT YOU TERMINATE (OR TAKE AN ACTION THAT CAUSES TERMINATION OF) YOUR NETZERO SERVICE BEFORE SATISFYING THE MINIMUM TERM COMMITMENT UNDER YOUR PLAN, THEN YOU AGREE TO PAY NETZERO UPON DISCONTINUANCE OF THE SERVICE A TERMINATION FEE AS SET FORTH IN YOUR PLAN DESCRIPTION (THE "EARLY TERMINATION FEE"). In addition to any applicable Early Termination Fee, you will be required to pay the remaining balance of the charges applicable to your NetZero Service through the effective date of termination. Activation, set-up or pre-paid service fees paid at the initiation of your NetZero Service, if any, are not refundable. If you terminate DSL service at your location, your existing plan may not be carried over to a new location.
- Termination and/or Suspension by NetZero. NetZero may terminate the NetZero Services upon thirty (30) days' notice to you for any reason. Additionally, if, in the sole discretion of NetZero: (a) you are in breach of any of the Rules, including, but not limited to, the Acceptable Use Guidelines; (b) your use of the NetZero Services is prohibited by law or is disruptive to, adversely impacts, or causes a malfunction to the NetZero Services or the use and enjoyment of other users; or (c) NetZero receives an order from a court to terminate your service; (d) if NetZero for any reason ceases to offer a NetZero Service entirely or in a particular geographic area or specific location; or (e) if you no longer live in an area where NetZero provides the NetZero Service for which you subscribed, then NetZero at its sole election may terminate or suspend your NetZero Service immediately without notice. For termination in accordance with this Section, you shall be liable for the applicable fees and/or Equipment charges set forth in previous paragraphs (depending on which fees or charges are applicable).
- Events That Could Cause Termination of Your DSL Service. If you are purchasing a fixed line DSL service (i.e., non-satellite DSL service), your DSL service is tied to the broadband connection into your house or building. As such, certain actions you take that impact your broadband connection could result in the termination of your DSL service. Such actions include, but are not limited to, changing your telephone service provider, changing your telephone number, or ordering a service that impacts or changes your underlying broadband connection (such as ordering cable television service from a telephone company). ANY SUCH TERMINATION WILL BE TREATED AS TERMINATION OF YOUR DSL SERVICE BY YOU AND MAY RESULT IN AN EARLY TERMINATION FEE. ADDITIONALLY, YOUR DSL SERVICE IS NOT PORTABLE. SHOULD YOU MOVE, YOU WILL NEED TO CANCEL YOUR DSL SERVICE (WHICH MAY RESULT IN AN EARLY TERMINATION FEE) AND REORDER IT.
- Regulatory Compliance. In the event there is a ruling, regulation, or order issued by a judicial, legislative or regulatory body that causes NetZero to believe that the Rules may be in conflict with such rules, regulations, and orders, NetZero may terminate or modify the NetZero Services and/or the Rules immediately without notice.
4.0 Warranty Disclaimers
- Services. YOU ACKNOWLEDGE THAT NETZERO SERVICES ARE PROVIDED "AS IS, WITH ALL FAULTS, AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY WARRANTY WITH RESPECT TO THE QUALITY, PERFORMANCE OR FUNCTIONALITY OF THE NETZERO SERVICES OR WITH RESPECT TO THE QUALITY OR ACCURACY OF ANY INFORMATION OBTAINED FROM OR AVAILABLE THROUGH USE OF NETZERO SERVICES OR THAT NETZERO SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NETZERO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, WARRANTIES OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, NON-INFRINGEMENT, MERCHANTABILITY OF COMPUTER PROGRAMS AND INFORMATIONAL CONTENT. NETZERO DOES NOT GUARANTEE THAT USERS WILL BE ABLE TO ACCESS OR USE THE NETZERO SERVICES AT TIMES OR LOCATIONS OF THEIR CHOOSING, OR THAT NETZERO WILL HAVE SERVICE OR ADEQUATE CAPACITY IN ANY SPECIFIC GEOGRAPHIC AREA. NETZERO DOES NOT WARRANT THAT NETZERO SERVICES ARE COMPATIBLE WITH ANY THIRD PARTY SERVICE OR SOFTWARE, EVEN IF SUCH THIRD PARTY CLAIMS, REPRESENTS OR WARRANTS THAT SUCH SERVICE OR SOFTWARE IS COMPATIBLE WITH ANY INTERNET ACCESS SERVICE OR NETZERO SERVICES IN PARTICULAR. The NetZero Service you select may not be available in all areas, may not be available at the rates, speeds, or bandwidth generally marketed, and some telephone lines may not qualify for NetZero Services even if initial testing showed that your line was qualified. NetZero or its suppliers may, at any time, without notice or liability, restrict the use of NetZero Services or limit their time of availability in order to perform maintenance activities and to maintain session control.
- Equipment. If you purchased your Equipment from NetZero or another NetZero-authorized retail sales channel, your Equipment is covered by a limited warranty from its manufacturer. This manufacturer's limited warranty provides that your Equipment will be substantially free from material defects, under normal use in compliance with the manufacturer's and NetZero's instructions, for a period of one (1) year from the date you receive the Equipment ("Limited Warranty"). This Limited Warranty excludes any defects resulting from abuse, misuse, neglect, theft, vandalism, fire, unusual physical or electrical stress, water, extremes of temperature, an act of God, use of the Equipment by an unauthorized person, your failure to comply with the Equipment manufacturer's or NetZero's policies or with any other instructions provided by the Equipment manufacturer or NetZero, actual or attempted alteration of or additions to the Equipment not explicitly approved in advance (in writing) by the Equipment manufacturer and NetZero, or any other cause beyond the reasonable control of the Equipment manufacturer and NetZero, all as reasonably determined by the Equipment manufacturer and NetZero (collectively, "Excluded Causes"). Repair or replacement of the Equipment, in NetZero's discretion, is NetZero's only responsibility, and your exclusive remedy, for breach of any warranty regarding the Equipment. This Limited Warranty is personal to you, and will terminate immediately upon the sale or transfer of the Equipment or expiration or termination of the Service (for any reason). Neither your Equipment manufacturer, NetZero, nor any other party makes any other warranty, express or implied, with regard to the Equipment
THE ONLY WARRANTY BEING MADE ABOUT THE EQUIPMENT IS THE MANUFACTURER'S EXPRESS LIMITED WARRANTY SET FORTH ABOVE. NETZERO DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AVAILABILITY, NON-INTERFERENCE WITH YOUR ENJOYMENT OF THE EQUIPMENT, OR NON-INFRINGEMENT.
ANY STATEMENTS MADE IN ANY PACKAGING, MANUALS, OR OTHER DOCUMENTS NOT EXPRESSLY INCORPORATED HEREIN, AND ANY STATEMENTS MADE BY ANY NETZERO EMPLOYEES OR REPRESENTATIVES, ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND NOT AS REPRESENTATIONS OR WARRANTIES OF ANY KIND BY NETZERO. NETZERO DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF, AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE EQUIPMENT. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU, IN WHOLE OR IN PART.
5.0 Limitation of NetZero's Liability
IN NO EVENT SHALL NETZERO OR ITS THIRD PARTY SERVICE PROVIDERS BE LIABLE UNDER ANY SECTION OF THESE TERMS OF SERVICE OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOST PROFITS, LOSS OF DATA OR INFORMATION OF ANY KIND OR LOSS OF BUSINESS GOODWILL OR OPPORTUNITY) WHETHER OR NOT NETZERO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. NETZERO SHALL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY AND IN NO EVENT SHALL NETZERO'S LIABILITY TO YOU EXCEED THE GREATER OF ONE DOLLAR ($1.00) OR ANY AMOUNTS ACTUALLY PAID IN CASH BY YOU TO NETZERO FOR THE APPLICABLE SERVICE FOR THE PRIOR MONTH. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE RULES OR OUT OF THE NETZERO SERVICES MAY BE BROUGHT BY YOU OR NETZERO MORE THAN ONE (1) YEAR AFTER THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION HAS OCCURRED. Some jurisdictions do not allow a limitation on liability for negligence that causes death or personal injury and, in such jurisdictions, NetZero's liability shall be limited to the greatest extent permitted by law.
6.0 Policy to Terminate Use of Services for Copyright Infringement
Pursuant to 17 U.S.C. § 512 as amended by Title II of the Digital Millennium Copyright Act, NetZero will terminate your account if you use your account privileges to unlawfully transmit copyrighted material without a license, valid defense or fair use privilege to do so. After proper notification by the copyright holder or its agent to NetZero and later confirmation through court order or an admission by the subscriber that an account has been an instrument of unlawful infringement, NetZero will terminate your account. NetZero may also, in its sole discretion, decide to terminate your account privileges prior to that time if it has good faith belief that infringement has occurred. NetZero will also terminate your account if you are deemed to be a repeat infringer. A repeat infringer is a subscriber who has been notified of infringing activity more than twice and/or has had User Generated Content removed from the NetZero Site or NetZero Services more than twice. In addition, pursuant to 17 U.S.C. § 512(c), NetZero has implemented procedures as set forth herein for receiving written notification of claimed infringements and for processing such claims in accordance with the Act. NetZero respects the intellectual property of others, and asks its subscribers to do the same.
If you believe that your copyright has been infringed through the use of a NetZero account or the NetZero Services, please contact NetZero's Copyright Agent in writing at:
Anthony De Toro, Esq. - NetZero, Inc.
21301 Burbank Boulevard,
Woodland Hills, CA 91367
Fax: (818) 287-3010
You must provide NetZero with all the information requested on the attached Notification of Infringement. The information requested is intended to substantially conform to the requirements set forth in the Digital Millennium Copyright Act, 17 U.S.C. Section 512 (c)(3)(A). NetZero therefore requires from you:
Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with the provisions above shall not be considered sufficient notice and shall not be deemed to confer upon NetZero actual knowledge of facts or circumstances from which infringing material or acts are evident.
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work you claim is being infringed, or, if you want to cover multiple copyrighted works in a single notice, a representative list of such works;
- Identification of the material that you claim is infringing or is the subject of infringing activity and that you believe should be removed or access to which should be disabled, with information reasonably sufficient to permit NetZero to locate the material;
- Information reasonably sufficient to permit NetZero to contact you, such as an address, telephone number and, if available, an electronic mail address at which you may be contacted;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in your notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
7.0 Software Licenses
- NetZero Software Licenses. Except as otherwise set forth in any third party end user license agreement provided with the Equipment or a NetZero Service, the following will govern your use of the Software.
- NetZero grants to you a personal, non-transferable, non-exclusive license to use the Software (in object code form only) as a part of the NetZero Services subject to the terms and conditions of the Rules. The Software is licensed, not sold, to you by NetZero and may be used only to connect to the NetZero Services from locations that NetZero may authorize.
- You may copy and archive the Software, and you may distribute copies of the Software to third parties, provided that all such copies contain the same copyright notice and proprietary markings as are on the original Software; and provided further that you do not sell, transmit or otherwise dispose of any copy for compensation or as part of a commercial offer. Notwithstanding the foregoing, NetZero may, at any time, and in its sole discretion, prohibit your distribution or your further distribution of the Software to third parties and require you to discontinue any such activity.
- You may be required to install any updates, enhancements or upgrades to the Software provided by NetZero, although NetZero is not obligated to provide such updates, enhancements or upgrades. Such updates, enhancements or upgrades shall be deemed a part of the Software.
- You agree not to translate, reverse engineer, reverse compile, disassemble or make derivative works from the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including, without limitation, for the purpose of obtaining unauthorized access to the NetZero Services or disabling features of the Software or NetZero Services. Except as may be permitted by NetZero, you agree not to access the NetZero Services by any means other than through the interface that is provided by NetZero or its partners for use in accessing the NetZero Services.
- The Software includes certain cryptographic software that may be subject to any applicable export controls, including the U.S. Export Administration Act. The Software may not be exported to any country or to any foreign entity or "foreign person" to the extent prohibited under applicable government regulations. By downloading or using the Software, you are acknowledging and agreeing to the foregoing limitations on your right to export or re-export the Software, and are also representing and warranting that you are neither on any applicable government's lists of export precluded parties nor otherwise ineligible to receive software containing cryptography that is subject to any applicable export controls.
- You acknowledge and agree that (i) you are not acquiring the license granted hereunder on behalf of a government agency and (ii) the license granted hereunder is not being acquired pursuant to a government contract.
- You acknowledge that NetZero and/or its third party service providers or suppliers retain all title, rights (including, without limitation, intellectual property rights) and interest in the Software, except as expressly licensed in these Terms of Service or pursuant to an end user license agreement accompanying your Equipment. All rights in the content, information and materials accessed through use of the Software are the property of the applicable content owner and may be protected under intellectual property and other applicable laws. You agree that NetZero's third party service providers or suppliers are direct and intended third party beneficiaries of these Terms of Service.
- End User License Agreement. The end user license agreements that accompany your Equipment or NetZero Service will govern the use of Software provided with such Equipment. By accepting these Terms of Service, you agree to accept the terms of those third party end user license agreements.
8.0 Dispute Resolution
This section describes what rights you and NetZero possess if you and NetZero have a dispute.
- Providing Notice of a Claim.
- You and NetZero agree to arbitrate all disputes and claims between us ("Disputes or Claims"). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- Disputes or Claims related in any way to a NetZero Service, Equipment, the Rules, billing, privacy, advertising, or NetZero's communications with you;
- Disputes or Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- Disputes or Claims that arose before your agreement to these Terms of Services or any prior agreement;
- Disputes or Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- Disputes or Claims that may arise after the termination of your NetZero Service.
- A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). Notice to NetZero must be sent to NetZero's customer service address at: NetZero Dispute Resolution, United Online Inc., PO BOX 7064, Woodland Hills, CA 91365.
- The Notice must include (a) the nature and basis of your Dispute or Claim; (b) identification or enclosure of all relevant documents and information; and (c) a description of the specific relief that you seek from NetZero.
- Providing NetZero an Opportunity to Informally Resolve Your Dispute.
- Before you may pursue or participate in any Dispute or Claim (or raise such Dispute or Claim as a defense) in small claims court or in arbitration against NetZero, you must first send the Notice described above, and you must allow NetZero a reasonable opportunity to resolve your Dispute or Claim.
- After NetZero receives your Notice, you and NetZero agree to negotiate in good faith with each other to try to resolve your Dispute or Claim.
- If you and NetZero do not reach a resolution of your Dispute or Claim within thirty (30) days after NetZero receives your written Notice, you may pursue your Dispute or Claim in arbitration or, solely to the extent specifically provided below, in small claims court.
- Agreement to Participate in Binding Arbitration.
- If you and NetZero cannot reach an informal resolution to the Dispute or Claim within thirty (30) days after NetZero's receipt of your Notice, you or NetZero may commence an arbitration proceeding by sending an arbitration demand ("Arbitration Demand") to the following address: NetZero Dispute Resolution, United Online Inc., PO BOX 7064, Woodland Hills, CA 91365. The parties agree to arbitrate any Dispute or Claim between the parties, except to the extent either party chooses to instead pursue the Dispute or Claim in small claims court as provided below.
- Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award.
- Except as otherwise provided herein, upon you or NetZero filing an Arbitration Demand, NetZero will pay all filing, administration, and arbitrator fees, unless your Dispute or Claim exceeds $75,000 (exclusive of any filing, administration, arbitrator, or attorneys' fees or other fees or expenses). If you initiate an arbitration in which you seek more than $75,000 (exclusive of any filing, administration, arbitrator, or attorneys' fees or other fees or expenses) in damages, the American Arbitration Association's ("AAA") Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes (collectively, the "AAA Rules") will govern the payment of these fees.
- The AAA Rules, as modified by these Terms of Service, will govern the arbitration. The AAA Rules are available online at www.adr.org, or by calling the AAA at 1-800-778-7879.
- If your Dispute or Claim is for $10,000 or less (exclusive of any filing, administration, arbitrator, or attorneys' fees or other fees or expenses), NetZero agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the AAA Rules. If your Dispute or Claim exceeds $10,000 (exclusive of any filing, administration, arbitrator, or attorneys' fees or other fees or expenses), the right to a hearing will be determined by the AAA Rules.
- Unless NetZero and you agree otherwise in writing, any arbitration hearings will take place in the county (or parish) in which your most recent billing address (as provided to NetZero) is located.
- One arbitrator, who is selected under the AAA Rules and who has expertise in consumer disputes in the wireless industry, will conduct the arbitration. If no arbitrator possessing such expertise is available, then the arbitration will be conducted by a single arbitrator who is selected by the mutual written approval of you and NetZero. Except as allowed under applicable law and the AAA Rules, the decisions of the arbitrator will be binding and conclusive on all parties. Judgment upon any award of the arbitrator may be entered by any court of competent jurisdiction. This provision will be specifically enforceable in any court. THE ARBITRATOR MUST FOLLOW THESE TERMS OF SERVICE AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS' FEES).
- All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for a court to decide.
- Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
- Except as otherwise provided herein, NetZero will pay all filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your Dispute or Claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. Also, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of fees will be governed by the AAA Rules.
- NetZero may make a written settlement offer to you before the arbitrator issues an award. If, after the arbitrator finds in your favor on the merits of the claim, and the arbitrator issues you an award that is greater than NetZero's written offer, NetZero will: (a) pay you the greater of the amount of the award or $7,500 ("Alternative Payment"); and (b) pay your attorney, if you use an attorney, twice the amount of any reasonable attorneys' fees awarded by the arbitrator, and reimburse any expenses that your attorney reasonably accrues for investigating, preparing, and pursuing your arbitration claim ("Attorney Fee Premium"). The Attorney Fee Premium does not supplant any right you may have to reasonable attorneys' fees under applicable law. Thus, if you would be entitled to a greater amount under applicable law, the Attorney Fee Premium does not preclude the arbitrator from awarding you that amount. You may not, however, recover duplicative attorneys' fees or costs.
- If NetZero does not make a written settlement offer to you before the arbitrator issues an award, you and your attorney will be entitled to the Alternative Payment and the Attorney Fee Premium, respectively, if the arbitrator decides in your favor on the merits.
- NetZero agrees that it will not seek any award of attorneys' fees, even if it is entitled to such fees.
- The arbitrator may make any determinations and resolve any Dispute or Claim as to the payment and reimbursement of fees, the Alternative Payment, or the Attorney Fee Premium at any time during the proceeding and within fourteen (14) days after the arbitrator's final ruling on the merits.
- The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.
- YOU AND NETZERO AGREE THAT:
- ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION. NEITHER YOU NOR NETZERO SHALL BE A MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION OR PROCEEDING, AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S INDIVIDUAL DISPUTE OR CLAIM.
- UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S DISPUTES OR CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
- NETZERO DOES NOT CONSENT TO CLASS ARBITRATION. ACCORDINGLY, IF A COURT REFUSES TO ENFORCE THE ABOVE PROVISIONS REGARDING CLASS OR REPRESENTATIVE ACTIONS, THEN THIS AGREEMENT TO ARBITRATE SHALL BE UNENFORCEABLE AS TO YOU. WHETHER A DISPUTE OR CLAIM PROCEEDS IN COURT OR IN ARBITRATION, YOU AND NETZERO HEREBY WAIVE ANY RIGHT TO A JURY TRIAL.
- This arbitration agreement covers any Dispute or Claim arising out of or relating to any aspect of the relationship between you and NetZero, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, even if the Dispute or Claim arises or may arise before or after the period(s) during which you are receiving NetZero Services. For purposes of this arbitration provision, references to "NetZero," "we," and "us" include NetZero, NetZero's Affiliates, and each such entity's respective the directors, officers, employees, shareholders, agents, suppliers, and assignees. The Rules evidence a transaction in interstate commerce, and the Federal Arbitration Act governs the interpretation and enforcement of this section.
- You or NetZero must bring any Dispute or Claim arising out of or related to the Rules, or the relationship between you and NetZero, within two (2) years after the Dispute or Claim arises, or the Dispute or Claim will be permanently barred. To the extent the law applicable under the Governing Law section below makes this limitations period unenforceable with respect to any Dispute(s) or Claim(s), then the statutes of limitations of the state whose laws govern the Rules under the Governing Law section below shall apply.
- NetZero may make changes to this arbitration provision during the term of our services to you. You may reject any material changes by sending NetZero written objection within thirty (30) days of the change to NetZero Dispute Resolution, United Online, Inc., PO Box 7064, Woodland Hills, CA 91365, Attention Legal Department. By rejecting any future material change, you are agreeing to arbitrate in accordance with the language of this provision.
Small Claims Court. You may choose to pursue your Dispute or Claim in small claims court rather than by arbitration if your Dispute or Claim qualifies for small claims court in a location where jurisdiction and venue over you and NetZero is proper.
Governing Law. The Rules, and any Dispute or Claim arising between you and NetZero related in any way to the Rules, NetZero Services, or Equipment, including but not limited to any Dispute or Claim over billing, service, privacy, advertising, or NetZero's communications with you, whether based on contract, tort, statute, or common law, will be governed by the laws of the state in which your most recent billing address (as provided to NetZero) is located, without regard to choice of law principles.
- Liability Limitation. NetZero shall not be liable for nonperformance or delay in performance caused by any reason, whether within or outside of its control.
- Fair Access for Satellite Service. NetZero's satellite Internet access service provider may assign a download threshold to each satellite Internet access service plan in order to limit the amount of data that may be continuously downloaded. The small percentage of subscribers who exceed this limit will experience a temporary reduction of speed in their satellite Internet access.
- Subpoenas. NetZero may be required to provide information about you to a third party. Except as prohibited by law, we will notify you if we plan to comply with a civil subpoena related to your NetZero Service. You agree to hold us harmless for the release of your information in connection with a civil subpoena, including, but not limited to, any claims that you did not receive notice of the subpoena from NetZero.
- Electronic Agreements. Any registrations, agreements, and terms presented by NetZero electronically have the same effect as one in writing and are legally enforceable as a signed writing.
- Assignability. NetZero may assign these Terms of Service at any time without notice to you. You may not assign these Terms of Service to any other person.
- Entire Agreement. The Rules (as may be modified by updated Rules on the NetZero Site) and your plan description together constitute the sole agreement between NetZero and you respecting the subject matter hereof. To the extent that the Rules conflict with the provisions of any other agreement between you and NetZero, then the Rules shall control, unless NetZero has expressly stated or agreed otherwise in writing, and the conflicting provisions of the other agreement shall be deemed modified to the minimum extent necessary to be read consistently with the Rules. You acknowledge and agree that you have read the Rules and understand and accept their terms.
- Severability. If any provision of the Rules is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to comply with applicable laws, and the remainder shall remain in full force and effect.
- No Waiver. Any failure of NetZero to enforce any provision of the Rules shall not constitute a waiver of any rights under such provision or any other provision of the Rules.
- Information for California Residents. Under California Civil Code Section 1789.3, users that are residents of California are entitled to the following consumer rights information: the Complaint Assistance Unit of the Division of Consumer Services may be contacted in writing at 400 R Street, Suite 1080, Sacramento, CA 95814 or by telephone at (916) 445-1254.
- For Quebec Residents Only. C'est á la demande expresse des parties que la présente convention a été rédigée en langue anglaise; the parties to these Terms of Service have specifically requested that it be drafted in the English language.
- Interpretation. For the purposes of these Terms of Service, references to "including" shall mean "including, without limitation," unless such reference is already included.
10.0 How to Contact NetZero
A list of ways to contact NetZero is available at http://www.netzero.net/support/support.html.