1. ACCEPTANCE OF TERMS Zinnia Networks, Inc. ("Zinnia") dba CalDSL provides Internet services, as modified from time to time ("Services"), to its subscribers who enroll for its Services ("Subscribers") and pay on a periodic basis as specified in service plans ("Service Plans") selected by them. Establishment of an account or your use of the Services will confirm your agreement to the terms and conditions of this Agreement. Continued use of the Services will confirm your agreement to the changes that may be made from time to time by Zinnia. If at any time after you have read the Service Agreement, you do not agree to be bound by the Service Agreement you should immediately end your use of the Services, cancel your account, and return any equipment and software provided by Zinnia.
2. SUBSCRIBER QUALIFICATIONS You must be at least 18 years old.
3. EQUIPMENT INSTALLATION AND SERVICE Specialized equipment is required to enable Subscribers to receive Zinnia Services. Zinnia will specify, configure and provide the required equipment. You will be billed for the equipment through a combination of one-time equipment setup charges and recurring equipment rental charges. Zinnia may combine the equipment rental and service delivery charges into a single recurring service charge for a billing period. All applicable combinations of one-time and recurring charges will be specified in Service Plans. Billing period for recurring charges may be every month, quarter or other time period, depending on the payment options specified in Service Plans. Monthly billing periods will be the most common.
Zinnia or its agents will install and maintain the equipment on subscriber premises. You will be billed separately for applicable installation charges pursuant to the Service Plan of your choice. Zinnia may upgrade the equipment from time to time at its sole discretion. Zinnia will remove the equipment at the termination of Service Agreement.
You authorize Zinnia or its agents to enter your premises in order to install, maintain, inspect, upgrade, repair, and if necessary remove Zinnia equipment. All such services will be conducted at mutually agreed time. You authorize Zinnia to install the equipment on your premises.
4. SERVICE PLANS Service Plans offered by Zinnia will describe, among other factors, the set of features included in each Plan, and the associated installation charges, one-time equipment setup charges, and recurring service charges for each billing period. Recurring service charges may include equipment rental charges. Service Plans will be described on Zinnia's website at www.zinnianet.com as modified from time to time. The website will also list any applicable promotions from time to time. Prices are subject to change, with 30 day advance notice, at Zinnia's sole discretion.
5. PAYMENT You are responsible for providing accurate and complete billing information including legal name, address and telephone number. You are required to notify Zinnia of any changes to such information within thirty (30) days of the change.
Services are billed one billing period in advance. This means that your first bill will include the total of (a) Prorated charges for the number of days left in your first billing period of service and (b) the next full billing period's charges in advance. You will also be billed for applicable installation charges and equipment setup charges based on the Service Plan(s) of your choice.
Payment is due on the first day of each billing period. Notice of any disputes must be received in writing within 30 days after you receive your bill or charges are considered valid.
If payment is not received within fifteen (15) days after it is due, Zinnia may at its sole discretion, apply a late payment charge and apply interest charges of 1.5% per month to all overdue amounts. Zinnia may also assess an additional fee for any checks returned for nonpayment.
Service to Subscribers with delinquent accounts may be suspended or cancelled at Zinnia's sole discretion. You are responsible for reasonable attorney fees and other costs that Zinnia may incur in connection with collecting delinquent or dishonored payments. Zinnia may bill an additional fee to reinstate a suspended account.
6. TERM OF AGREEMENT You must agree to a term plan contained in the Service Plan of your choice to start service. The term of the Service Agreement will continue till the end of the applicable term selected by you in the Service Plan, unless terminated or renewed according to the provisions in sections 7 and 8, following.
7. TERMINATION OF AGREEMENT BY SUBSCRIBER You may terminate the Service Agreement if you move out of Zinnia's service area. Early termination fees will not apply.
You may terminate the Service Agreement during the last month of the term by giving Zinnia advance written notification. If no such notice is received, the Service Agreement will renew for an additional twelve (12) month term.
If you terminate the Service Agreement for any other reason, early termination fees may apply based on your chosen Service Plan.
8. TERMINATION OF AGREEMENT BY ZINNIA Without prior notice, Zinnia may terminate this Agreement, and your use of the Services, for any reason, including, without limitation, if Zinnia, in its sole discretion, believes you have violated this Agreement, or any of the applicable user policies, or if you fail to pay any charges when due. Zinnia may provide termination notice to you by: email addressed to your email account or by US Mail or courier service to the address you provided for the Services. An early termination fee may apply based on your chosen Service Plan.
9. AGREEMENT TO RULES OF ACCEPTABLE USE AND CONDUCT You agree to abide by all Zinnia policies on acceptable use, modified from time to time, including but not limited to, agreeing not to use the Services for any unlawful purpose. Violation of this can lead to termination pursuant to section 8, preceding.
10. DISCLAIMER OF WARRANTIES YOUR USE OF ZINNIA SERVICES IS SOLELY AT YOUR RISK. ALL SERVICES, MATERIALS, INFORMATION, SOFTWARE, AND PRODUCTS, INCLUDED IN OR AVAILABLE THROUGH ZINNIA (THE "SERVICE") ARE PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. ZINNIA, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
11. LIMITATION OF LIABILITY UNDER NO CIRCUMSTANCES SHALL ZINNIA, OR ITS SUBSIDIARIES, BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR INABILITY TO USE, OR ABUSE OF THE SERVICES. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF ZINNIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IF YOU LIVE IN A JURISDICTION THAT DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, ZINNIA'S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN ANY EVENT. ZINNIA'S CUMULATIVE LIABILITY TO ANY SUBSCRIBER FOR ANY AND ALL CLAIMS RELATING TO THE SERVICE SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE AFFECTED PERIOD.
12. INDEMNIFICATION YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS ZINNIA AND THIRD PARTIES WHO CONTRIBUTE TO THE SERVICE FROM ANY LOSS, DAMAGE, OR COST (INCLUDING ATTORNEYS' FEES) RESULTING FROM YOUR VIOLATION OF THIS AGREEMENT OR ANY ACTIVITY RELATED TO YOUR ACCOUNT.
13. JURISDICTION This Agreement is governed by California law (excluding its choice of law rules). Residents of California with complaints may contact: State of California, Department of Consumer Affairs, Division of Consumer Services, Complaint Assistance Unit, P.O. Box 942507, Sacramento, CA 94258-0507
14. SEVERABILITY Unless otherwise specified herein, this Agreement constitutes the entire agreement between you and Zinnia with respect to the Services and supersedes all prior or contemporaneous communications and proposals (whether oral, written, or electronic) between you and Zinnia. If any part of these Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.