For current Terms of Service, click here.
BY CLICKING ON THE "SUBMIT & CONTINUE" 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, 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 SERVICES")), YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE, THE ACCEPTABLE USE GUIDELINES FOR THE NETZERO SERVICES, AND THE NETZERO PRIVACY STATEMENT, WHICH ARE REFERRED TO COLLECTIVELY AS THE "RULES."
IF YOU DO NOT AGREE TO BE BOUND BY 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 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, although if you have a prepaid account or a minimum term commitment you will not have the right to terminate your use of the NetZero Services unless the change is material and adverse to you.
The Rules are your entire agreement with NetZero and 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 broadband ("DSL") Internet access, 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 access the Internet 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 Service at any time for any reason, without notice, and nothing herein shall be construed to limit that right. For purposes of this Agreement, "Equipment" shall mean the modem, router and/or other equipment provided by NetZero for use with NetZero's DSL service and "Software" shall mean the software provided by NetZero in connection with the NetZero Services.
- Collection and Use of Personal Information. NetZero will collect, store, compile and utilize information about you, your computer, your phone number and your use of the NetZero Services including, without limitation, information regarding the Web sites you visit and information that you provide in response to NetZero questionnaires, surveys and registration forms. NetZero may provide this information to third parties including advertisers, clients, marketing organizations and others as further set forth in NetZero's Privacy Statement.
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 it may request from time to time through questionnaires, surveys and registration forms. 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).
You expressly permit and authorize NetZero and its affiliates (and such third parties as may be authorized by NetZero, subject to the Privacy Statement) to furnish you, electronically when you use the NetZero Services or by any other means selected by NetZero, information or materials prepared by NetZero or by (or on behalf of) other entities, including advertising information and solicitations. You acknowledge that any such information, advertisements and solicitations are an inseparable part of the NetZero Service, and you understand and agree that the furnishing of such information, advertisements and solicitations to you cannot be terminated unless the NetZero Service is also terminated. Notwithstanding the foregoing, you may elect to not receive such information from third parties at the alternate e-mail address you may have provided to NetZero and, if your NetZero Service is a paid service (i.e., not for free), you may indicate in your personal profile that you do not wish to receive such information from third parties at your NetZero e-mail address. Please 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) applicable taxes, b) surcharges, c) recovery fees, d) telephone charges, e) activation fees, f) installation fees, g) set-up fees, h) equipment charges, i) termination fees, j) other nonrecurring charges, k) fees for supplemental services or features, l) and purchases made through the use of NetZero Services. The taxes, fees and other charges detailed in this paragraph a)-d) 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. You will be notified of any applicable fees before you start incurring liability for such fees and, by providing your billing information, you agree that you are liable for payment of such fees. NetZero reserves the right to change its fees or billing methods at any time and NetZero will provide thirty days notice of any such changes in the same manner as described above for changes in the Rules and/or scope of NetZero Services. If you do not like these changes to the fees, billing methods, or changes to the Rules or the NetZero Services, because they adversely impact you, you may terminate the applicable NetZero Services on or after the date such changes go into effect, and as your sole and exclusive remedy, you will be entitled to a pro-rata refund for amounts prepaid to cover future periods of the terminated NetZero Service(s) from the date of termination.
You must provide a valid method of payment (i.e. credit card, checking account, telephone billing, etc.) prior to and during any times you receive billable NetZero Services and pricing plans. 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 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 90 days from the date you are billed. If you do not bring them to NetZero's attention within 90 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.
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 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.
If your Service plan is metered (meaning that you have a set number of hours that 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 Service for 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.
- Minors. You may not obtain an account for NetZero's pay services unless you are at least 18 years old, and you represent that you are at least 18 years old by signing up for such services. If you are less than 13 years old, you are not allowed to use the NetZero Services without providing NetZero with your parent's consent in the form required by NetZero. Parents may read further information and obtain the Parental Consent Form by going to our Privacy Statement section entitled "Special Notice to Parents About Children Under Age 13." If you are a parent permitting a minor to use NetZero Services, you agree to (i) exercise supervision over the minor's use of NetZero Services and access to the Internet, (ii) assume all risks associated with the minor's viewing of content received through use of NetZero Services and the minor's transmission of materials, content, or information to another person via the Internet, (iii) assume any and all liabilities resulting from the minor's use of NetZero Services, including any and all payment obligations, and (iv) ensure to the fullest extent possible the accuracy and truthfulness of all information submitted by the minor in response to NetZero questionnaires, surveys and Registration Forms. NetZero provides information on the NetZero Site regarding parental control software available through various third party vendors, but you should know that such software is not completely effective in preventing minors' access to material that is unsuitable for children. NetZero does not endorse any of these third parties and makes no representation as to them or their software.
- 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, including, without limitation, the blocking of cookies, or blocking the operation of the ZeroPort, or you attempt to circumvent NetZero's billing of you in any way, you are in violation of the Rules and we 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 service, 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.
- 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. We do not claim ownership of any User Generated Content. However, by submitting User Generated Content to us, you grant us, our parent, 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 we are not liable for User Generated Content that is provided by others. We have no duty to pre-screen User Generated Content, but we have the right to refuse to post, edit, or deliver submitted User Generated Content. We reserve the right to remove User Generated Content for any reason, but we are not responsible for any failure or delay in removing such material. We reserve the right to block any user's access to any Content, Web Site or Web Page in our sole discretion.
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.
- E-mail. The NetZero e-mail service and network including, without limitation, e-mail addresses, is owned by NetZero and NetZero establishes practices and limits concerning your e-mail account, which practices and limits may be changed from time to time. Limits may include, without limitation, the period of time your e-mail will be retained; the number, size and type of e-mail messages and attachments you may send and receive; and the amount of space allocated to your e-mail storage. E-mail in inactive or terminated accounts may be deleted in accordance with NetZero's policies. You agree to use NetZero e-mail services only to send and receive personal messages. NetZero prohibits unsolicited e-mail to be sent or received through the Services, and uses a variety of techniques to eliminate or minimize e-mail or attachments that NetZero in its sole discretion believes are unsolicited, inappropriate, or harmful. In doing so, NetZero may block or delete e-mail 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 e-mail or attachments.
You agree that NetZero is not responsible for any e-mail 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 e-mail or attachments. You agree that NetZero is not responsible for any e-mail 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.
- Without limiting the generality of NetZero's rights as set forth in this Agreement, NetZero reserves the right to change your e-mail address and associated member ID 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. You may not incorporate a third party's trademark within your NetZero e-mail address without permission of the trademark owner.
- Software Downloads. As part of the NetZero Service, 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 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 and Service Performance. 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. You understand that bandwidth is provided on a per-line basis, and that 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.
- Monitor of Network Performance. NetZero and its third party service providers may measure and monitor network performance and the performance of your Internet connection. We also will access and record information about your computer's profile and settings and the installation of software we provide in order to provide customized technical support and you agree to permit us to access and record such data for the purposes described in this Agreement. You hereby consent to NetZero's monitoring of your Internet connection 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 we may offer from time to time.
- 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 THESE 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 GROSS NEGLIGENCE. THE FOREGOING INDEMNIFICATION OBLIGATION SHALL SURVIVE ANY TERMINATION OF NETZERO SERVICES PROVIDED TO YOU.
3.0 Termination and Cancellation
- Service Ready Date. Billing for your NetZero dial-up Service will automatically begin upon registration of your service. Billing for your NetZero DSL service will automatically begin on the date provisioning of your DSL 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 the DSL service is provided to your location by NetZero's service provider.
- Money Back Guarantee. NetZero may provide a thirty (30) day money back guarantee for some of the NetZero Services (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 NetZero Service as described in the previous section. During this thirty (30) day period you may cancel the NetZero 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 NetZero 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, bundle or other NetZero Service pricing plans. The money-back guarantee is limited to one per subscriber per address.
- DSL or Dial-up Subscribers with Month-to-Month Accounts. If you are a month-to-month DSL service or dial-up 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 this Agreement without cause by giving notice to the other. Termination by you will be effective upon your notice to NetZero. Activation or set-up fees paid at the initiation of your NetZero Service, if any, are not refundable, except during the thirty (30) day money-back guarantee period. Additionally, if your NetZero Service plan includes a minimum term commitment and such NetZero Service is terminated for any reason prior to the completion of your minimum term commitment, you agree to pay NetZero the Early Termination Fee set forth in your plan description. Termination by NetZero shall be effective thirty (30) days after the date of notice to you, except as otherwise provided in this Agreement. 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 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 "Service Ready Date". 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. 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 notice to you for any reason. Additionally, if, in the sole discretion of NetZero: (a) you are in breach of any of the terms of this Agreement, including, but not limited to, all policies regarding abuse and acceptable use of the NetZero Services; (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 this Agreement may be in conflict with such rules, regulations, and orders, NetZero may terminate or modify the NetZero Services and/or this Agreement immediately without notice.
4.0 Warranty Disclaimers
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.
YOU ACKNOWLEDGE THAT NETZERO SERVICES ARE PROVIDED "AS IS, 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 , 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 SERVICE OR HAVE 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.
5.0 Limitation of NetZero's Liability
IN NO EVENT SHALL NETZERO 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 DIRECT, INDIRECT, 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 THESE 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 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 we ask our 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 DeToro, Esq. - NetZero, Inc.
21301 Burbank Boulevard
Woodland Hills, CA 91367
Fax: (818) 287-3010
You must provide us 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). We therefore require 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.
7.0 Software License
- 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 us to locate the material.
- Information reasonably sufficient to permit us 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.
- 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.
Except as otherwise set forth in the End User License Agreement provided with the Equipment, 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 Service 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 Service or disabling features of the Software or NetZero Service. Except as may be permitted by NetZero, you agree not to access the NetZero Service by any means other than through the interface that is provided by NetZero or its partners for use in accessing the NetZero Service.
- 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 its suppliers retain all title, rights (including, without limitation, intellectual property rights) and interest in the Software, except as expressly licensed in this Agreement. 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 suppliers are direct and intended third party beneficiaries of this Agreement.
- 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.
- Entire Agreement. These Rules (as may be modified by updated Rules on the NetZero Site) together constitute the sole agreement between NetZero and you respecting the subject matter hereof and fully supersede any and all other agreements, either oral or in writing, including the Software License Agreement you may have accepted prior to downloading or installing the Software. You acknowledge and agree that you have read the Rules and understand and accept their terms.
- Legal Actions. These Rules will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws principles. The exclusive personal jurisdiction of and venue for all disputes arising out of these Rules shall be the state and federal courts located in Los Angeles, California, USA and you consent to such exclusive jurisdiction and waive all objections to such jurisdiction and venue.
- Severability. If any provision of these 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 these Rules shall not constitute a waiver of any rights under such provision or any other provision of these 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 this Agreement have specifically requested that it be drafted in the English language.
- For the purposes of this Agreement, references to "including" shall mean "including, without limitation," unless such reference is already included.
9.0 How to Contact Us
A list of ways to contact NetZero is available at http://www.netzero.net/support/support.html.