ZITO MEDIA RESIDENTIAL SERVICES SUBSCRIBER AGREEMENT
IMPORTANT INFORMATION ABOUT YOUR ZITO MEDIA SERVICES
In consideration of ZITO MEDIA's provision of the Services that I have requested, subject to applicable law, I AGREE AS FOLLOWS:
1. Important Information About This Agreement
(d) My acceptance of Services constitutes my acceptance of the terms and conditions contained in this Agreement. In the event that a portion of my Services is terminated, or any aspect of it is changed, any remaining service or replacement service will continue to be governed by this Agreement.
2. Payment; Charges
(a) I agree to pay ZITO MEDIA for (i) all use of my Services (including, if ZITO MEDIA is the party billing me for ISP or OLP Service, for my subscription to my choice of ISP or OLP, as applicable), (ii) installation and applicable service charges (iii) ZITO MEDIA Equipment, and (iv) all applicable local, state and federal fees and taxes. Charges for the Services are set forth on a separate price list that I have received. I will be billed monthly in advance for recurring monthly charges. Other charges will be billed in the next practicable monthly billing cycle following use, or as otherwise specified in the price list. ZITO MEDIA may change both the fees and the types of charges (e.g., periodic, time-based, use-based) for my Services. If I participate in a promotional offer that requires a minimum time commitment and I terminate early, I agree that I am responsible for early termination fees associated with such promotion.
(b) Charges for installation Services and related equipment available from ZITO MEDIA for a standard Services installation are as described in ZITO MEDIA's list of charges and any applicable Tariff(s). Non-standard installations, if available, may result in additional charges as described in ZITO MEDIA's list of charges. In addition, I agree to pay charges for repair service calls resulting from my misuse of ZITO MEDIA Equipment or for failures in equipment not supplied by ZITO MEDIA.
(c) If my Services account is past due and ZITO MEDIA sends a collector to my premises, a field collection fee may be charged. The current field collection fee is on the price list or can be provided on request. I will also be responsible for all other expenses (including reasonable attorneys' fees and costs) incurred by ZITO MEDIA in collecting any amounts due under this Agreement and not paid by me.
(d) All charges are payable on the due date specified, or as otherwise indicated, on my bill. I agree that late charges may be assessed, subject to applicable law, on amounts that are past due. My failure to deliver payment by the due date is a breach of this Agreement. The current late fees are on the price list or can be provided upon request and, if applicable, will not exceed the maximum late fees as set forth by applicable law. ZITO MEDIA reserves the right to change the late fees.
(e) I agree that if my Services account with ZITO MEDIA is past due, ZITO MEDIA may terminate any of my Services or accounts, including Digital Voice Service, in accordance with applicable law. Whether ZITO MEDIA or I terminate my Services, if I have a credit due to me or a deposit is being held on any account with ZITO MEDIA, I agree that the credit or deposit may be used to offset amounts past due on any other account I may have with ZITO MEDIA without notice to me and that the remaining balance owed will only be refunded if it is at least equal to one month of my service fees; partial month fees paid but not used and installation fees paid are non-refundable. To reconnect any terminated Services, I may be required, in addition to payment of all outstanding balances on all accounts with ZITO MEDIA, to pay reconnect charges or trip charges (where applicable) and/or security deposits before reconnection.
(f) ZITO MEDIA may verify my credit standing with credit reporting agencies and require a deposit based on my credit standing or other applicable criteria. ZITO MEDIA may require a security deposit, or a bank or credit card or account debit authorization from me as a condition of providing or continuing to provide Services. If ZITO MEDIA requires a security deposit, the obligations of ZITO MEDIA regarding such security deposit will be governed by the terms of the deposit receipt provided by ZITO MEDIA to me at the time the deposit is collected. I agree that ZITO MEDIA may deduct amounts from my security deposit, bill any bank or credit card submitted by me, or utilize any other means of payment available to ZITO MEDIA, for any past due amounts payable by me to ZITO MEDIA, including in respect of damaged or unreturned Equipment.
(g) If I have elected to be billed by credit card, debit card or ACH transfer, I agree that I will automatically be billed each month for any amounts due under this Agreement. If I make payment by check, I authorize ZITO MEDIA and its agents to collect this item electronically.
(h) ZITO MEDIA may charge fees for all returned checks and account debit, bank card or charge card chargebacks. The current return/chargeback fees are listed in the list of charges on the price list or can be provided on request. ZITO MEDIA reserves the right to change return/chargeback fees.
(i) If I subscribe to HSD Service, I acknowledge that, even if ZITO MEDIA is billing for the HSD Service, my ISP or OLP may require a bank or credit card or account debit authorization or other assurance of payment from me, including for charges for additional or continuing Services outside the HSD Service billed by ZITO MEDIA that are payable under the ISP Terms. I agree that ZITO MEDIA or ISP (and, if applicable, OLP) may bill any bank or credit card submitted by me to ISP or OLP, or utilize any other means of payment available to ISP or OLP for any past due amounts payable by me to ZITO MEDIA. I also agree that responsibility for billing for my HSD Service subscription may be changed between ZITO MEDIA and ISP or OLP upon notice to me.
(j) All use of my Services, whether or not authorized by me, will be deemed my use and I will be responsible in all respects for all such use, including for payment of all charges attributable to my account (e.g., for VOD movies, merchandise ordered via Internet, international long distance charges, etc.). ZITO MEDIA is entitled to assume that any communications made through my Services or from the location at which I receive the Services are my communications or have been authorized by me. My Services may contain or make available information, content, merchandise, products and Services provided by third parties and for which there may be charges payable to third parties (which may include my choice of ISP or OLP and/or entities affiliated with ZITO MEDIA). I agree that all such charges incurred by me or attributed to my account will be my sole and exclusive responsibility and agree to pay the same when due, and shall indemnify and hold harmless the ZITO MEDIA Parties for all liability for such charges. I agree that ZITO MEDIA is not responsible or liable for the quality of any content, merchandise, products or Services (or the price thereof) made available to me via the Services, for the representations or warranties made by the seller or manufacturer of any such item, or for damage to or injury, if any, resulting from the use of such item.
(k) I acknowledge that currently, and from time to time, there is uncertainty about the regulatory classification of some of the Services ZITO MEDIA provides and, consequently, uncertainty about what fees, taxes and surcharges are due from ZITO MEDIA and/or its customers. Accordingly, I agree that ZITO MEDIA has the right to determine, in its sole discretion, what fees, taxes and surcharges are due and to collect and remit them to the relevant governmental authorities, and/or to pay and pass them through to me. I further agree to waive any claims I may have regarding ZITO MEDIA's collection or remittance of such fees, taxes and surcharges. I further understand that I may obtain a list of the fees, taxes and surcharges that ZITO MEDIA currently collects or passes through by writing to ZITO MEDIA at the following address and requesting same: ZITO MEDIA, 611 Vader Hill Road, Coudersport, PA 16915; Attention: Subscriber Tax Inquiries.
(l) I agree that it is my responsibility to report ZITO MEDIA billing errors within 30 days from receipt of the bill so that service levels and all payments can be verified. If not reported within 30 days, the errors are waived.
3. Installation; Equipment and Cabling
(a) If I am not the owner of the house, apartment or other premises upon which ZITO MEDIA Equipment and Software are to be installed, I warrant that I have obtained the consent of the owner of the premises for ZITO MEDIA personnel and/or its agents to enter the premises for the purposes described in Section 3(d). I agree to indemnify and hold the ZITO MEDIA Parties harmless from and against any claims of the owner of the premises arising out of the performance of this Agreement (including costs and reasonable attorneys' fees).
(b) I authorize ZITO MEDIA to make any preparations to the premises necessary for the installation, maintenance, or removal of equipment. ZITO MEDIA shall not be liable for any effects of normal Services installation and workmanship, such as holes in walls, etc., which may remain after installation or removal of the ZITO MEDIA Equipment, except for damage caused by negligence on the part of ZITO MEDIA.
(c) The ZITO MEDIA Equipment is and at all times shall remain the sole and exclusive personal property of ZITO MEDIA, and I agree that I do not become an owner of any ZITO MEDIA Equipment by virtue of the payments provided for in this Agreement or the Tariff(s) or the attachment of any portion of the ZITO MEDIA Equipment to my residence or otherwise. Upon termination of any Services, subject to any applicable laws or regulations, ZITO MEDIA may, but shall not be obligated to, retrieve any associated ZITO MEDIA Equipment not returned by me as required under Section 3(f) below. ZITO MEDIA will not be deemed to have "abandoned" the ZITO MEDIA Equipment if it does not retrieve such equipment.
(d) I agree to provide ZITO MEDIA and its authorized agents access to my premises during regular business hours upon reasonable notice during the term of this Agreement and after its termination to install, connect, inspect, maintain, repair, replace, alter or disconnect or remove the ZITO MEDIA Equipment, to install Software, to conduct service theft audits, or to check for signal leakage. I agree that ZITO MEDIA may have reasonable access to easements and ZITO MEDIA Equipment located on my grounds.
(e) ZITO MEDIA shall have the right to upgrade, modify and enhance ZITO MEDIA Equipment and Software from time to time through "downloads" from ZITO MEDIA's network or otherwise. Without limiting the foregoing, ZITO MEDIA may, at any time, employ such means to limit or increase the throughput available through individual cable modems whether or not provided by ZITO MEDIA.
(f) If the Services are terminated, I agree that I have no right to possess or use the ZITO MEDIA Equipment related to the terminated Services. As required under Section 10(b), I agree that I must arrange for the return of ZITO MEDIA Equipment to ZITO MEDIA, in the same condition as when received (excepting ordinary wear and tear), upon termination of the Services. If I do not promptly return the ZITO MEDIA Equipment or schedule with ZITO MEDIA for its disconnection and removal, ZITO MEDIA may enter any premises where the ZITO MEDIA Equipment may be located for the purpose of disconnecting and retrieving the ZITO MEDIA Equipment. I will pay any expense incurred by ZITO MEDIA in any retrieval of the unreturned ZITO MEDIA Equipment. ZITO MEDIA may charge me a continuing monthly fee until any outstanding ZITO MEDIA Equipment is returned, collected by ZITO MEDIA or fully paid for by me in accordance with Section 3(g). The current fee is listed in the list of charges on the price list or can be provided on request.
(g) I agree to pay ZITO MEDIA liquidated damages in the amount demanded by ZITO MEDIA, but not to exceed that specified in the then-current price list, for the replacement cost of the ZITO MEDIA Equipment without any deduction for depreciation, wear and tear or physical condition of such ZITO MEDIA Equipment if (i) I tamper with, or permit others to tamper with, ZITO MEDIA Equipment, (ii) the ZITO MEDIA Equipment is destroyed, lost, or stolen, whether or not due to circumstances beyond my reasonable control, and even if I exercised due care to prevent such destruction, loss, or theft, or (iii) the ZITO MEDIA Equipment is damaged (excluding equipment malfunction through no fault of my own) while in my possession, whether or not due to circumstances beyond my reasonable control, and even if I exercised due care to prevent such damage. I agree that these liquidated damages are reasonable in light of the problem of theft of cable Services; the existence of a "black market" in ZITO MEDIA Equipment; the ability of third parties to steal Services with unlawfully obtained ZITO MEDIA Equipment, causing loss of revenues for installation and service fees; and the difficulty in determining the actual damages that arise from the unauthorized tampering with, loss, destruction, or theft of ZITO MEDIA Equipment. I agree to return any damaged ZITO MEDIA Equipment to ZITO MEDIA.
(h) I agree that ZITO MEDIA may place equipment and cables on my premises to facilitate the provision of Services to me and to other locations in my area. The license granted under this Section 3(h) will survive the termination of this Agreement until the date that is one year from the date on which I first notify ZITO MEDIA in writing that I am revoking such license.
4. Use of Services; ZITO MEDIA Equipment and Software
(b) I agree that the Services I have requested are residential Services, offered for reasonable personal, non-commercial use only. I will not resell or redistribute (whether for a fee or otherwise) the Services, or any portion thereof, or charge others to use the Services, or any portion thereof. Among other things: (i) If I receive Video Service, I agree not to use the Services for the redistribution or retransmission of programming or for any enterprise purpose whether or not the enterprise is directed toward making a profit. I agree that, among other things, my use of the Services to transmit or distribute the Video Service, or any portion thereof, to (or to provide or permit access by) persons outside the location identified in the Work Order (even if to a limited group of people or to other residences that I own or have the right to use), will constitute an enterprise purpose. I acknowledge that programs and other materials that I receive as part of the Video Service remain part of the Video Service even if I record or capture all or a portion of any such program or material in a data file or on a hard drive, DVR or similar device. (ii) If I receive Digital Voice Service, I agree not to use the Services for telemarketing, call center, medical transcription or facsimile broadcasting Services or for any enterprise purpose whether or not the enterprise is directed toward making a profit. I agree that, among other things, my use of the Services to make available my Digital Voice Service, or any portion thereof, to (or to provide or permit access by) persons outside the location identified in the Work Order (even if to a limited group of people or to other residences that I own or have the right to use), will constitute an enterprise purpose. (iii) If I receive HSD Service, I agree not to use the HSD Service for operation as an Internet service provider, for the hosting of websites (other than as expressly permitted as part of the HSD Service) or for any enterprise purpose whether or not the enterprise is directed toward making a profit. I agree that, among other things, my use of any form of transmitter or wide area network that enables persons or entities outside the location identified in the Work Order to use my Services, whether or not a fee is sought, will constitute an enterprise purpose. Furthermore, if I use a wireless network within my residence, I will limit wireless access to the HSD Service (by establishing and using a secure password or similar means) to the members of my household.
(c) Theft or willful damage, alteration, or destruction of ZITO MEDIA Equipment, or unauthorized reception, theft or diversion of Services, or assisting such theft, diversion, or unauthorized reception is a breach of this Agreement and potentially punishable under law (including by way of statutory damages, fine and/or imprisonment). Nothing in this Agreement, including, Section 3(g) above, shall prevent ZITO MEDIA from enforcing any rights it has with respect to theft or unauthorized tampering of Services or ZITO MEDIA Equipment under applicable law.
(e) I agree that to the extent any Software is licensed (or sublicensed) to me by ZITO MEDIA, such Software is provided for the limited purpose of facilitating my use of the Services as described in this Agreement. I will not engage in, or permit, any additional copying, or any translation, reverse engineering or reverse compiling, disassembly or modification of or preparation of any derivative works based on the Software, all of which are prohibited. I will return or destroy all Software provided by ZITO MEDIA and any related written materials promptly upon termination of the associated Services to me for any reason. Software licensed to me by my ISP or OLP, for instance my ISP's or OLP's client or browser software, is licensed under the ISP Terms or OLP Terms, as applicable, and is not the responsibility of ZITO MEDIA.
(g) I agree to be responsible for protecting the confidentiality of my screen names, passwords, personal identification numbers (PINs), parental control passwords or codes, and any other security measures made available, recommended or required by ZITO MEDIA . I also acknowledge that ZITO MEDIA's Services may from time to time include interactive features, the use of which may result in the transmission to, and use by, ZITO MEDIA or certain third parties of information that may constitute personally identifiable information (as such term is used in the Federal Communications Act of 1934) about me and for which ZITO MEDIA may be required, under the Federal Communications Act of 1934, to obtain my consent. I agree that ZITO MEDIA may seek such consents (or indications of my election to "opt in" to certain ZITO MEDIA programs) electronically, including through the use of a "click through" screen, and that ZITO MEDIA is entitled to assume that any such consent or opt-in election communicated through my Services or from the location at which I receive the Services is my consent or opt-in election or has been authorized by me.
(h) I agree that ZITO MEDIA has no liability for the completeness, accuracy or truth of the programs or information it transmits.
5. Special Provisions Regarding Digital Voice Service
(a) I acknowledge that the voice-enabled cable modem used to provide the Digital Voice Service is electrically powered and that the Digital Voice Service, including the ability to access 911 Services and home security and medical monitoring Services, may not operate in the event of an electrical power outage or if my broadband cable connection is disrupted or not operating. I acknowledge that, in the event of a power outage in my home, any battery included in my voice-enabled cable modem may enable back-up service for a limited period of time or not at all, depending on the circumstances, and that inclusion of the battery does not ensure that Digital Voice Service will be available in all circumstances. I also acknowledge that, in the event of a loss of power that disrupts my local ZITO MEDIA cable system, the battery in my voice-enabled cable modem will not provide back-up service and the Digital Voice Service will not be available.
(b) I agree that ZITO MEDIA will not be responsible for any losses or damages arising as a result of the unavailability of the Digital Voice Service, including the inability to reach 911 or other emergency Services, or the inability to contact my home security system or remote medical monitoring service provider. I acknowledge that ZITO MEDIA does not guarantee that the Digital Voice Service will operate with my home security and/or medical monitoring systems, and that I must contact my home security or medical monitoring provider in order to test my system's operation with the Digital Voice Service. I agree that I am responsible for the cost of any such testing or any fees for configuring my home security or medical monitoring system to work with the Digital Voice Service.
(c) The location and address associated with my Digital Voice Service will be the address identified on the Work Order. I acknowledge that, under Section 4(d) of this Agreement, I am not permitted to move ZITO MEDIA Equipment from the location and address in which it has been installed. Furthermore, if I move my voice-enabled cable modem to an address different than that identified on the Work Order, calls from such modem to 911 will appear to 911 emergency service operators to be coming from the address identified on the Work Order and not the new address.
(d) I acknowledge that the existing televoice wiring inside my home may not support both Digital Voice Service and digital subscriber line (DSL) service. Therefore, if I intend to use Digital Voice Service on all of my voice jacks, I may be required to maintain separate wiring, not provided by ZITO MEDIA, within my home specifically for DSL service or to disconnect my DSL service prior to receiving the Digital Voice Service over my existing in-home wiring.
(e) I agree to provide ZITO MEDIA and its authorized agents with access to my televoice inside wiring at the Network Interface Device or at some other minimum point of entry in order to provide the Digital Voice Service over my existing in-home wiring.
(f) I acknowledge that the Digital Voice Service may not be compatible with certain data transmission Services, including but not limited to fax transmissions and dial-up Internet access and that I may be required to maintain a separate televoice line, not provided by ZITO MEDIA, in order to access such Services.
6. Special Provisions Regarding HSD Service
(b) Republication. (i) I acknowledge that material posted or transmitted through the HSD Service may be copied, republished or distributed by third parties, and that the ZITO MEDIA Parties will not be responsible for any harm resulting from such actions. (ii) I grant to ZITO MEDIA, and I represent, warrant and covenant that I have all necessary rights to so grant, the non-exclusive, worldwide, royalty-free, perpetual, irrevocable, right and license to use, reproduce, modify, adapt, publish, translate, distribute, perform and display in any media all material posted on the public areas of the HSD Service via my account and/or to incorporate the same in other works, but only for purposes consistent with operation and promotion of the HSD Service. (iii) I agree that unsolicited email, or "spam," is a nuisance and that ZITO MEDIA and my ISP (and, if applicable, my OLP) are entitled to establish limits on the volume of email that I send. Such volume limits may be set by reference to a number of emails per day, week, month or year.
(c) Continuity of Service. In order to provide continuity of service to me, if my choice of ISP is no longer available over my local ZITO MEDIA cable system, I agree that ZITO MEDIA may provide me with an alternative ISP. In such event, ZITO MEDIA will notify me of the date as of which I will begin receiving service from the alternative ISP, the provision of which shall also be governed by this Agreement, and ZITO MEDIA will provide to me a price list for such alternative ISP service. I will have the right at any time to terminate the alternative ISP or to change my subscription to any other ISP then offered by ZITO MEDIA.
(d) Unfiltered Internet Access. I acknowledge that the ISP Service provides a connection to the Internet that may be unfiltered, and that the ZITO MEDIA Parties neither control nor assume responsibility for any content on the Internet or content that is posted by a subscriber. Although ZITO MEDIA or my ISP or OLP may make available certain parental control features, I acknowledge that such parental control features may not be entirely effective or foolproof and that, notwithstanding such features, I or members of my household may be exposed to unfiltered content.
(f) Responsibility for HSD Service. Each of ZITO MEDIA and my ISP (and, if applicable, my OLP) has responsibilities for the HSD Service. I acknowledge that each of my ISP and OLP may have one or more separate agreements, policies or other terms covering my rights and obligations with regard to the HSD Service ("ISP Terms" or "OLP Terms," as applicable) that are also binding on me. This Agreement does not cover any ISP or OLP features or Services that are not dependent upon distribution over ZITO MEDIA's cable system (for example, dial up access or my use of ISP or OLP software that enables access to ISP or OLP features or Services through non-ZITO MEDIA access means) or that may otherwise be provided to me by ISP or OLP separately from the HSD Service under the ISP Terms or OLP Terms, as applicable. In the event of termination of the HSD Service, I must also contact my ISP (and, if applicable, my OLP) to ensure that these other features or Services (such as dial-up access) are properly continued or discontinued.
(g) Computer Requirements. I agree that each Computer will need to meet certain minimum hardware and software requirements that will be specified for the HSD Service, and that such requirements may be changed from time to time by ZITO MEDIA or my ISP or OLP.
7. Support; Service and Repairs
(a) My Services include the right to request reasonable service and maintenance calls to check and correct problems with the Services. ZITO MEDIA will, at its own expense, repair damage to or, at ZITO MEDIA's option, replace ZITO MEDIA Equipment, and otherwise attempt to correct interruptions of the Services, due to reasonable ZITO MEDIA Equipment wear and tear, or technical malfunction of the system or network operated by ZITO MEDIA. The Subscriber Materials contain details on contacting ZITO MEDIA for this support.
(b) Unless I have obtained a ZITO MEDIA service protection plan (if available in my area), I agree that I am responsible for all wiring, equipment and related software installed in my residence that is not ZITO MEDIA Equipment or ZITO MEDIA-licensed Software and ZITO MEDIA will have no obligation to install, connect, support, maintain, repair or replace any Computer, television, televoice or televoice answering device, audiovisual recording or playback device (e.g., VCR, DVR, DVD), audio equipment, any software, or any cable modem, cabling or other equipment (other than ZITO MEDIA Equipment or ZITO MEDIA-licensed Software). ZITO MEDIA will not support, repair, replace, or maintain any Network Interface Card, regardless of whether provided and installed by ZITO MEDIA.
(c) I agree that ZITO MEDIA has no responsibility for the operation of any equipment, software or service other than the Services, the ZITO MEDIA Equipment and the ZITO MEDIA-licensed Software. For instance, I acknowledge that certain commercially available televisions, converter boxes and recording devices, which may be identified by their manufacturers as "cable ready" or "digital cable ready," may not be able to receive or utilize all available Services without the addition of a ZITO MEDIA converter box or other ZITO MEDIA Equipment for which a fee may be charged. If I receive HSD Service, ZITO MEDIA has no responsibility to support, maintain or repair any equipment, software or service that I elect to use in connection with the HSD Service, whether provided by my ISP, my OLP or a third party. For assistance with technical problems arising from such equipment, software or Services, I should refer to the Subscriber Materials for information regarding the technical support provided by my ISP or OLP or to the support area of the ISP or OLP or to the relevant third party's material.
(d) If ZITO MEDIA determines that non-ZITO MEDIA cabling or equipment connecting my residence to ZITO MEDIA Equipment installed on the side of or adjacent to my residence (i.e., at a ground block) is the cause of a service problem, I agree that ZITO MEDIA may charge me to resolve such service problem. If available from ZITO MEDIA in my area, I may subscribe to a ZITO MEDIA service protection plan that covers service related calls within my residence. If any other support Services are available from ZITO MEDIA, such Services will be at additional charges as described in ZITO MEDIA's price list.
8. Service Interruptions; Force Majeure
(a) I agree that ZITO MEDIA has no liability for delays in or interruption to my Services, except that if for reasons within ZITO MEDIA's reasonable control, for more than twenty-four (24) consecutive hours, (i) service on all cable channels is interrupted, (ii) there is a complete failure of the HSD Service or (iii) there is a complete failure of the Digital Voice Service, ZITO MEDIA will give me a prorated credit for the period of such interruption or failure if I request one within 30 days of the interruption or failure. Notwithstanding the above, ZITO MEDIA will issue credits for VOD, pay-per-view and pay-per-play events for service problems where a credit request is made within 30 days of the interruption or failure. In no event shall ZITO MEDIA be required to credit me an amount in excess of applicable service fees. ZITO MEDIA will make any such credit on the next practicable bill for my Services. State and local law or regulation may impose other outage credit requirements with respect to some or all of my Services. In such event, the relevant law or regulation will control.
(b) I acknowledge that ZITO MEDIA may conduct maintenance from time to time that may result in interruptions of my Services.
(c) The ZITO MEDIA Parties shall have no liability, except as set forth in Section 8(a), for interruption of the Services due to circumstances beyond its reasonable control, including acts of God, flood, natural disaster, vandalism, terrorism, regulation or governmental acts, fire, civil disturbance, electrical power outage, computer viruses or worms, strike or weather.
(d) ZITO MEDIA is only obligated to provide the above-referenced credits for loss of HSD Service if ZITO MEDIA is billing me for the HSD Service at the time of the outage. If my ISP or OLP is billing me, I will look solely to my ISP or OLP, as applicable, for a credit with respect to the HSD Service.
9. Review and Enforcement
(c) I agree that ZITO MEDIA shall have the right to take any action that ZITO MEDIA deems appropriate to protect the Services, ZITO MEDIA's facilities or ZITO MEDIA Equipment.
10. Termination of Service
(a) Either ZITO MEDIA or I may terminate all or any portion of my Services at any time for any or no reason, in its sole discretion, in accordance with applicable law. If my account is terminated by ZITO MEDIA or by me, I agree that I will be refunded any pre-paid fees minus any amounts due ZITO MEDIA and that the remaining balance owed will only be refunded if it is at least equal to one month of my service fees; partial month fees paid but not used and installation fees paid are non-refundable.
(b) If I am moving or wish to terminate all or any portion of my Services for any reason, I will notify ZITO MEDIA by voice or by mail as instructed in the Subscriber Materials in order to set up a disconnect appointment and provide ZITO MEDIA with access to my premises to disconnect the relevant Services and recover the ZITO MEDIA Equipment specified on the Work Order on a DATE PRIOR TO the last day of residency. This also applies if I am receiving a period of free or discounted Services. In other words, at the end of the free or discounted period, ZITO MEDIA is entitled to begin billing me for the usual charges associated with the relevant Services unless I take the appropriate steps to terminate the Services as described in this paragraph.
(c) I cannot terminate my Services by writing "Canceled" (or any other messages) on my bill or check, or by making a disconnect appointment that does not result in ZITO MEDIA's physical recovery of the ZITO MEDIA Equipment. In addition, I agree that any restrictive endorsements (such as "paid in full"), releases or other statements on or accompanying checks or other payments accepted by ZITO MEDIA shall have no legal effect.
(d) If I subscribe to HSD Service, I acknowledge that notice given by me to ZITO MEDIA of termination of my HSD Service may not be sufficient to terminate billing by my ISP or OLP for additional or continuing Services under the ISP Terms or OLP Terms (for example, "dial up" access). I agree that I am solely responsible for contacting my ISP or OLP in addition to ZITO MEDIA to ensure that all such Services are terminated in accordance with the ISP Terms or OLP Terms, as applicable.
11. Disclaimer of Warranty; Limitation of Liability
(a) I AGREE THAT THE SERVICES ARE PROVIDED BY ZITO MEDIA ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NONINFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES THAT ARE IMPLIED BY, AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER, THE LAWS APPLICABLE TO THIS AGREEMENT. ZITO MEDIA MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE ZITO MEDIA EQUIPMENT WILL OPERATE AS INTENDED. IN PARTICULAR, I AGREE THAT MY USE OF THE HSD SERVICE (INCLUDING THE CONTENT, INFORMATION, SERVICES, EQUIPMENT AND SOFTWARE, THE PURCHASE OF MERCHANDISE AND SERVICES, THE TRANSMISSION OF INFORMATION AND OTHER COMMUNICATIONS BY AND TO ME AND THE DOWNLOADING OF COMPUTER FILES) IS AT MY SOLE RISK. I FURTHER AGREE THAT ZITO MEDIA IS NOT RESPONSIBLE FOR THE RECORDING OF OR FAILURE TO RECORD ANY PROGRAM OR PORTION THEREOF, OR FOR THE CONTENT OF ANY PROGRAM OR CONTENT ON MY DVR, WITHOUT LIMITING THE FOREGOING:
(i) ANY AND ALL PRODUCTS AND SERVICES PROVIDED BY ZITO MEDIA AND/OR ISP AND/OR OLP AND/OR ANY LONG DISTANCE PROVIDER TO ME THAT ARE NOT PART OF THE SERVICES AS DEFINED HEREIN ARE OUTSIDE THE SCOPE OF THIS AGREEMENT AND THE ZITO MEDIA PARTIES HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY SUCH PRODUCTS OR SERVICES; AND
(ii) NONE OF THE ZITO MEDIA PARTIES MAKES ANY WARRANTIES AS TO THE SECURITY OF MY COMMUNICATIONS VIA ZITO MEDIA'S FACILITIES OR THE SERVICES (WHETHER SUCH COMMUNICATIONS ARE DIRECTED WITHIN THE SERVICES, OR OUTSIDE THE SERVICE TO OR THROUGH THE INTERNET), OR THAT THIRD PARTIES WILL NOT GAIN UNAUTHORIZED ACCESS TO OR MONITOR MY COMPUTERS(S) OR ONLINE (INCLUDING VOICE) COMMUNICATIONS. I AGREE THAT NONE OF THE ZITO MEDIA PARTIES WILL BE LIABLE FOR ANY SUCH UNAUTHORIZED ACCESS. I HAVE THE SOLE RESPONSIBILITY TO SECURE MY COMPUTER AND ONLINE (INCLUDING VOICE) COMMUNICATIONS.
(b) I ACKNOWLEDGE THAT ZITO MEDIA'S OR MY INSTALLATION, USE, INSPECTION, MAINTENANCE, REPAIR, REPLACEMENT OR REMOVAL OF THE SERVICES, ZITO MEDIA EQUIPMENT AND SOFTWARE MAY RESULT IN DAMAGE TO MY COMPUTER(S), TELEVOICES AND TELEVOICE ANSWERING DEVICES, TELEVISIONS, RECORDING AND PLAYBACK DEVICES, AUDIO EQUIPMENT, OR ANY CABLE MODEM, CABLING OR OTHER EQUIPMENT OR HARDWARE, INCLUDING SOFTWARE AND DATA FILES STORED THEREON. I SHALL BE SOLELY RESPONSIBLE FOR BACKING UP ALL EXISTING COMPUTER OR OTHER SOFTWARE OR DATA FILES PRIOR TO THE PERFORMANCE OF ANY OF THE FOREGOING ACTIVITIES. NONE OF THE ZITO MEDIA PARTIES, OR THEIR VENDORS, LICENSEES OR PROGRAMMERS, SHALL HAVE ANY LIABILITY, AND EACH EXPRESSLY DISCLAIMS ANY RESPONSIBILITY WHATSOEVER, FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY EQUIPMENT, SOFTWARE, HARDWARE, DATA OR FILES.
(c) EXCEPT FOR THE REFUND OR CREDIT AS EXPRESSLY PROVIDED IN SECTIONS 9(a) AND 8(a) RESPECTIVELY, IN NO EVENT (INCLUDING NEGLIGENCE) WILL ANY ZITO MEDIA PARTY OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICES (INCLUDING THE CONTENT INCLUDED THEREIN OR THE SERVICES ACCESSED THEREBY) OR EQUIPMENT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING THE USE OF OR INABILITY TO USE EMERGENCY 911 SERVICES, OR FOR ANY ACTION TAKEN BY ZITO MEDIA TO PROTECT THE SERVICES OR THE BREACH BY ZITO MEDIA OF ANY WARRANTY.
(d) I AGREE THAT THE PROVISIONS OF THIS SECTION 11 SHALL APPLY TO ALL CONTENT OR SERVICES INCLUDED IN, OR ACCESSIBLE THROUGH, THE SERVICES, AND ARE FOR THE BENEFIT OF, AND MAY BE ENFORCED BY, ALL OF THE ZITO MEDIA PARTIES.
(a) My privacy interests, including my ability to limit disclosure of certain information to third parties, are addressed by, among other laws, the Federal Communications Act of 1934, as amended, and the Electronic Communications Privacy Act. Personally identifiable information that may be collected, used or disclosed in accordance with applicable laws is described in the Subscriber Privacy Notice delivered to me by ZITO MEDIA on its own behalf. I acknowledge receipt of the Subscriber Privacy Notice, which is deemed to form a part of this Agreement, and expressly consent to the collection, use and disclosure of personally identifiable and other information as described in the Subscriber Privacy Notice, as it may be amended from time to time.
(b) I agree that, in addition to actions and disclosures specifically authorized by law or statute or authorized elsewhere in this Agreement, ZITO MEDIA shall have the right (except where prohibited by law notwithstanding my consent), but not the obligation, to disclose any information to protect their respective rights, property and/or operations, or where circumstances suggest that individual or public safety is in peril. I consent to such actions or disclosures.
(c) If I am a Digital Voice customer, I consent to ZITO MEDIA's disclosure of my name, address and/or televoice number to the general public in connection with Caller ID functions, televoice directories, and 411 and 911 Services. I also consent to ZITO MEDIA's disclosure of personally identifiable information to the televoice companies serving those end users to whom I make calls so that the calls can be completed. If I wish to have ZITO MEDIA remove this information from one or more of these Services, I understand that I may notify ZITO MEDIA to do so, subject to any applicable fees.
13. Consent to Voice and Email Contact
(a) I consent to ZITO MEDIA calling the voice numbers I supply to it for any purpose, including the marketing of its current and future Services. I agree that these voice calls may be made using any method, including an automatic dialing system or an artificial or recorded voice. Upon my request, the voice numbers I have previously provided will be removed from ZITO MEDIA's voice marketing list. I can make this request by calling or writing my local ZITO MEDIA office and asking to be placed on ZITO MEDIA's Do Not Call List.
(b) I acknowledge that being included in any state or federal "do not call" registry will not be sufficient to remove me from ZITO MEDIA's voice marketing list.
(c) I consent to ZITO MEDIA emailing me, at any email address, including that of a wireless or mobile device, that I provide to ZITO MEDIA (or that ZITO MEDIA issues to me in connection with the HSD Service), for any purpose, including the marketing of ZITO MEDIA's current and future Services. If my wireless or mobile provider charges me for receipt of such messages, I acknowledge and agree that I am responsible for paying such charges. I may revoke this authorization insofar as it relates to marketing messages at any time by calling or writing my local ZITO MEDIA office.
EXCEPT FOR CLAIMS FOR INJUNCTIVE RELIEF, AS DESCRIBED BELOW, ANY PAST, PRESENT, OR FUTURE CONTROVERSY OR CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE RESOLVED BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES, INCLUDING, IF APPLICABLE, THE SUPPLEMENTARY PROCEDURES FOR THE RESOLUTION OF CONSUMER RELATED DISPUTES. CONSOLIDATED OR CLASS ACTION ARBITRATIONS SHALL NOT BE PERMITTED. THE ARBITRATOR OF ANY DISPUTE OR CLAIM BROUGHT UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT HAVE THE POWER TO AWARD INJUNCTIVE RELIEF; INJUNCTIVE RELIEF MAY BE SOUGHT SOLELY IN AN APPROPRIATE COURT OF LAW. NO CLAIM SUBJECT TO ARBITRATION UNDER THIS AGREEMENT MAY BE COMBINED WITH A CLAIM SUBJECT TO RESOLUTION BEFORE A COURT OF LAW. THE ARBITRABILITY OF DISPUTES SHALL BE DETERMINED BY THE ARBITRATOR. JUDGMENT UPON AN AWARD MAY BE ENTERED IN ANY COURT HAVING COMPETENT JURISDICTION. IF ANY PORTION OF THIS SECTION IS HELD TO BE UNENFORCEABLE, THE REMAINDER SHALL CONTINUE TO BE ENFORCEABLE.
(a) "Agreement" means this Services Subscription Agreement, as it may be amended from time to time by ZITO MEDIA.
(b) "Computer" means the personal computer(s) located at my residence that will be used to access the HSD Service, as specified on the accompanying Work Order.
(c) "Digital Voice Service" means the ZITO MEDIA voice service that provides users with the ability to send and receive local and/or long distance calls and to access additional related features and functions through ZITO MEDIA's cable systems.
(d) "DVR" means a set-top box or other device enabled with a digital video recorder that is provided to me by ZITO MEDIA.
(e) "HSD Service" and "High Speed Data Service" mean the online content, features, functions and Services (which may include Internet access) of the ISP or OLP selected by me, as provided over ZITO MEDIA's cable systems.
(f) "including" or "include" shall mean inclusion, without limitation.
(g) "ISP" means the Internet service provider selected by me from among those offered now or in the future by ZITO MEDIA for the HSD Service. My ISP is the entity that provides my Internet connectivity.
(h) "Me," "My," and "I" mean the account holder identified on the Work Order who is authorized by ZITO MEDIA to access and use the Services.
(i) "OLP" or "On-line Provider" means a provider of on-line content, features, functions and Services that are used in conjunction with my ISP Service (and whose service may be purchased with an ISP Service as part of a combined offering) but that does not itself provide Internet connectivity.
(j) "Services" means any and all Services provided to me by ZITO MEDIA, which may include Video Service, High Speed Data Service, Digital Voice Service and equipment based Services such as digital video recorder Services.
(k) "Software" means the computer software, if any, licensed by ISP or OLP to me to access the HSD Service, or licensed by ZITO MEDIA to me to facilitate installation or use of my ISP's or OLP's service or any other Services. Software also refers to any executable code that may be included in, downloaded to, or utilized by, any ZITO MEDIA Equipment.
(l) "Subscriber Materials" means the handbooks, manuals and other guide materials provided by ZITO MEDIA or any third party (including my ISP or OLP) regarding use of the Services.
(m) "Subscriber Privacy Notice" means the Subscriber Privacy Notice described in Section 12(a), as it may be amended from time to time by ZITO MEDIA.
(n) "Tariff(s)" means the materials describing the terms upon which ZITO MEDIA offers Digital Voice Service, which have been filed at the Public Service Commission or comparable state agency serving the jurisdiction in which I live.
(p) "ZITO MEDIA" means the cable operator that is providing the Services over its cable system, or any cable operator to whom ZITO MEDIA assigns this Agreement.
(q) "ZITO MEDIA Equipment" means any equipment provided by ZITO MEDIA to me including, but not limited to, wire, cable, cable conduit, splitters, junction boxes, converter boxes (also known as "set top" boxes), decoders, CableCARD™, terminals, cable modems, voice-enabled cable modems, remote control units, and any other equipment or materials provided to me by ZITO MEDIA for use in connection with the receipt of Services. ZITO MEDIA Equipment does not include any Network Interface Card ("NIC") installed in my Computer.
(r) "ZITO MEDIA Parties" means ZITO MEDIA and its corporate parents, affiliates and subsidiaries and their respective directors, officers, employees and agents.
(s) "Video Service" means video and/or audio programming Services such as basic, standard, digital and premium Services, Services provided on a per-channel or per-program basis, pay-per-play, pay-per-view or VOD.
(t) "VOD" means video on demand. (v) "Work Order" means the ZITO MEDIA work order provided to me on or after January 1, 2006 in connection with the installation or commencement of my Service(s).
I agree to defend, indemnify and hold harmless the ZITO MEDIA Parties from and against any and all claims and expenses, including reasonable attorneys' fees, arising out of or related in any way to my use of the Services or otherwise arising out of the use of my account or any equipment or facilities in connection therewith, or my use of any other ZITO MEDIA products or Services or any ISP's or OLP's products or Services.
This Agreement will remain in effect until terminated by either party or superseded by a revised Subscription Agreement. 18. Interpretation; Severability This Agreement is, and shall be interpreted as, subject to applicable law and regulation and to any applicable franchise agreement between a governmental authority and ZITO MEDIA. In the event that any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties as set forth herein, and the remainder of this Agreement shall remain in full force and effect.
19. Consent to Electronic Notice
I agree that failure by ZITO MEDIA to enforce any of its rights hereunder shall not constitute a waiver of any such rights. No waiver by either party of any breach or default shall be deemed to be a waiver of any preceding or subsequent breach or default.
I understand that my Services are being provided only to the location identified on my Work Order and that I am not allowed to transfer all or any portion of the Services, or ZITO MEDIA's Equipment, to any other person, entity or location, including a new residence. I agree that I may not assign or transfer this Agreement. ZITO MEDIA may transfer or assign any portion or all of this Agreement at any time without notice to me, and I waive any such notice which may be required.
22. Effect of Applicable Law; Reservation of Rights
23. Parental Control Device
I acknowledge that I have been advised of the availability of ZITO MEDIA's parental control device which can filter or block certain programming. Additional information about the device is available at the ZITO MEDIA contact number in the Subscriber Materials.
24. Conflicting Terms
In the event of a conflict in the terms and conditions between this Residential Services Subscriber Agreement and the accompanying Work Order, then the terms and conditions of this Agreement shall control.
25. Digital Millennium Copyright Act Policy
It is the policy of Zito to respond expeditiously to claims of intellectual property infringement. Zito will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws. Upon receipt of notices complying or substantially complying with the DMCA, when it is under its control, Zito will act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity and will act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing. Zito will terminate access for Customers who are repeat infringers. For our IP transit, dedicated Internet access and collocation Customers, you must adopt and implement a Digital Millennium Copyright Act policy that reserves the necessary rights to remove or disable infringing material. If you believe that a copyrighted work has been copied and is accessible on our site in a way that constitutes copyright infringement, you may notify us by providing our registered copyright agent with the following information: - electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;- a description of the copyrighted work that you claim has been infringed;- a description of where the material that you claim is infringing is located on the site;- your address, telephone number, and e-mail address;- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and- a statement by you, madeunder penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
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