EarthLink Policies and Agreements
By using an EarthLink service or visiting an EarthLink web site, you agree to comply with the Service Agreements and Policies listed below. We reserve the right to amend and update these Service Agreements and Policies from time to time. Please see the summary of any recent amendments and updates at the end of each document.
Service Agreements
Dial-Up Service Agreement (Dial-Up, MailStation, and Premium Mail and EarthLink and PeoplePC Software and Tools)*
DSL & Home Phone Service Agreement
Email Beta Program Service Agreement
High-Speed Service Agreement (Residential DSL, Freestanding DSL, HyperLink™ High-Speed and EarthLink and PeoplePC Software and Tools)*
Home Networking Service Agreement
Online Backup Service Agreement
trueVoice Service Agreement
Web Hosting and Domain Name Registration Service Agreement
Broadband Network Management Information
Recurring Bank Draft Authorization Agreement
Feedback Policy
By submitting ideas, comments or suggestions (“Feedback”) to EarthLink, including through feedback or survey web pages, you acknowledge and agree that: (i) your Feedback does not contain confidential or proprietary information; (ii) EarthLink is not obligated to keep your Feedback confidential; (iii) your Feedback automatically will become the property of EarthLink and you waive all claims against EarthLink for infringement or misappropriation of any intellectual property rights in your Feedback; (iv) EarthLink may use your Feedback for any purpose and in any way, including for improvements to its services or products or in conjunction with its promotions, without any obligation by EarthLink to you; (v) you are not entitled to any compensation or remuneration of any kind from EarthLink for your Feedback for any reason; and (vi) EarthLink is not obligated to review your Feedback.
*The Dial-Up Service Agreement and the High-Speed Service Agreement includes all of the EarthLink and PeoplePC Software and tools except for EarthLink Home Networking and EarthLink Online Backup which have their own Service Agreements.
**IMPORTANT NOTICE: EarthLink’s network may not be used in any way to transmit or disseminate images containing child pornography. Please report any child pornography complaints to abuse.cp@earthlink.net. Please see our Acceptable Use Policy for more information.
READ THIS DIAL-UP SERVICE AGREEMENT CAREFULLY BEFORE USING THE EARTHLINK DIAL-UP SERVICE OR THE PEOPLEPC DIAL-UP SERVICE.
THIS DIAL-UP SERVICE AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. AGREEMENT
This Dial-Up Service Agreement (“Agreement”) is between EarthLink, LLC and its related entities (“EarthLink”) and applies to our use of the EarthLink Dial-Up service, the PeoplePC Dial-Up service, and the EarthLink and PeoplePC software and tools including those described at http://www.earthlink.net/software/ (collectively referred to as “Service”) except for EarthLink Home Networking and EarthLink Online Backup which have their own Service Agreements
By establishing an account for the Service or using the Service, you agree to be bound by this Agreement and to use the Service in compliance with the terms of this Agreement and all applicable federal, state and local laws, rules and regulations.
2. TERM OF THIS AGREEMENT
The effective date of this Agreement is the date on which you subscribed to the Service. This Agreement continues until the date of termination of your Service. Sections 10, 13, 14, 15, 17, 18, and 20 of this Agreement will survive the termination of this Agreement.
3. SUBSCRIPTION INFORMATION
To order and receive the Service, you acknowledge that you are 18 years of age or older, and you have legal authority to enter into this Agreement. You must provide EarthLink with (i) a valid credit or debit card or other EarthLink approved payment method for the Service; (ii) your billing address; and (iii) your shipping address, if different from your billing address, for shipping the EarthLink Dial-Up modem (“EarthLink Dial-Up Modem”), if applicable.
You represent that all information you provided during the subscription process is accurate and complete and that you will update such information with EarthLink should any of it change.
EarthLink reserves the right to verify the accuracy of the information you submit in connection with your subscription to the Service and you consent to such verification. EarthLink also reserves the right to validate the payment method information you provide at subscription and account updates, including attempting up to a $1.00 authorization to your credit or debit card which is not actually billed.
The Service must be available to your location. EarthLink may accept or reject any potential subscriber to the Service in its sole discretion. EarthLink will send you a welcome email as written confirmation of your order. Even if EarthLink has accepted your order, EarthLink cannot guarantee that the Service can be provisioned to your address.
4. USERNAMES AND PASSWORDS, SECURITY
Upon registration, you will receive a username, a password, and other account information. You are responsible for (i) maintaining the confidentiality of both your username and password, and (ii) the use of your Service by any person who uses your username and password to access the Service, whether or not you specifically authorize such person’s use. You must notify EarthLink immediately upon discovering any unauthorized use of your Service and other breaches of security. Usernames, passwords, email addresses and IP addresses are EarthLink’s property and EarthLink may alter or replace them at any time.
You are solely responsible for the device (such as a desktop, laptop, notebook, tablet or smart phone) (“Device”) and any software on your Device necessary to use the Service, including responsibility for (i) maintaining the security of the Device and data including protection of your username and password, (ii) the encryption of data, (iii) back-up of your Device and data, and (iv) any WI-FI network you use in connection with the Service. EarthLink recommends that you use anti-virus, anti-spyware and firewall software and that you update this software as recommended by the applicable provider.
5. GENERAL DESCRIPTION OF AND RESTRICTIONS ON THE SERVICE
The Service speed may vary depending on location, line quality, inside wiring, Internet traffic, and other factors beyond the control of EarthLink. EarthLink does not guarantee upload or download speeds. Some line stabilization may be necessary for the Service. Stabilization could include the lowering of provisioned line speed. Should this occur, EarthLink will NOT be able to increase the line speed once the connection is stabilized. Some of the Services may only work using certain telephone carriers or non-PBX (including rollover/party line) phone systems. Some of the Services may require the use of specific hardware and/or software and may be limited by specific geographic location.
The Service may require separate active telephone or cable service in order for the Service to work. You are responsible for charges for such telephone or cable service. Please note that changing telephone carriers or cable providers may result in substantial interruption of the Service and may result in fees associated with cancellation and setting up a new account.
EarthLink also reserves the right to change any of the features, content or applications of the Service at any time with or without notice to you.
Because of the complex nature of Internet service, availability, and the underlying infrastructure, it may not be possible to provide the Service to everyone. In its sole discretion, EarthLink may cancel the Service and refund any money that you have paid. EarthLink will notify you of its intent to cancel as soon as reasonably possible.
Depending on the billing plan for your EarthLink Dial-Up Service or PeoplePC Dial-Up Service (collectively, “Dial-Up Service”) you may have a limit to the number of hours of connection to the Internet per monthly billing cycle.
The Dial-Up Service allows a dial-up connection to the Internet from only one computer at a time without incurring additional fees; however, if two or more Devices are logged into a Dial-Up account to access the Internet at the same time (“Simultaneous Usage”), Simultaneous Usage charges will accrue for that month. The Simultaneous Usage fee is $1.00 per hour, pro-rated to the minute, through the end of the monthly billing cycle. The Simultaneous Usage fee will be added to your monthly bill. Although some EarthLink access plans come with multiple email addresses, Simultaneous Usage charges will accrue if two or more dial-up connections from one account for the Dial-Up Service are accessing more than one of these email addresses at the same time.
Unless your Service includes a static IP address, you will be allocated a dynamic IP address. For the Dial-Up Service, EarthLink reserves the right to timeout connections that EarthLink deems are excessive.
6. SPECIFIC TERMS FOR THE EARTHLINK ACCESS SOFTWARE AND THE EARTHLINK DIAL-UP MODEM
EarthLink will ship a welcome kit that will include software (“EarthLink Access Software”) that you may use to access the Dial-Up Service. The EarthLink Access Software includes a setup wizard to guide you step-by-step through the installation process. The minimum computer requirements for the EarthLink Access Software are located at www.earthlink.net for the EarthLink Services or www.peoplepc.com for the PeoplePC Services.
In addition to the EarthLink Access Software, the Dial-Up Service requires a modem to access the Internet. If your Device does not have a modem to access a dial-up connection, you may order the EarthLink Dial-Up Modem to access the Dial-Up Service for a one-time charge plus shipping and handling fees. EarthLink recommends the EarthLink Dial-Up Modem to ensure ongoing technical support.
EarthLink warrants the EarthLink Dial-Up Modem against defects in material and workmanship under ordinary consumer use for a warranty period of 365 days from the Original Shipment Date of the EarthLink Dial-Up Modem (“Dial-Up Warranty Period”). This warranty applies to the original subscriber and is not transferable.
The warranty for the EarthLink Dial-Up Modem includes the following:
- You must contact EarthLink Technical Support via telephone or chat support about your defective EarthLink Dial-Up Modem.
- If EarthLink Technical Support confirms during the Dial-Up Warranty Period that your EarthLink Dial-Up Modem is defective, EarthLink will ship on file a replacement EarthLink Dial-Up Modem at no cost to your shipping address on file. EarthLink will not charge shipping or handling fees for shipping the replacement modem except if you upgrade the shipping method to overnight delivery.
- If EarthLink Technical Support confirms after the Dial-Up Warranty Period that your EarthLink Dial-Up Modem is defective, EarthLink will ship a replacement EarthLink Dial-Up Modem plus a shipping and handling fee to your shipping address on file.
The replacement EarthLink Dial-Up Modem will be either a new or a fully inspected and tested refurbished unit.
This warranties for the EarthLink Dial-Up Modem do not cover defects resulting from use contrary to the instructions or repair or modification by you or any party other than EarthLink. This warranty gives you specific legal rights, and you may also have other rights that vary from state to state.
If you have any problems with installation of the EarthLink Dial-Up Modem, you can contact EarthLink Technical Support for assistance.
7. LOCAL TELEPHONE, TOLL AND LONG DISTANCE CHARGE
EarthLink will provide you with a dial-up access number to access the Service (“POP Number”). When using the Service, you are solely responsible for determining if use of a particular POP Number will cause you to incur long-distance, toll, or any other charges, including Simultaneous Usage charges. EarthLink does not guarantee that any POP Number that EarthLink provides will be a local call from your location. EarthLink is not responsible for any long-distance, toll, or other charges you incur.
EarthLink may change its POP numbers at any time. EarthLink reserves the right to direct you to use certain POP Numbers to access the Service or to restrict use of specific POP Numbers.
8. BILLING AND PAYMENT
If your billing plan is based on a monthly subscription fee, you agree to pay the recurring monthly fee in your billing plan due in advance of the month incurred. If your billing plan is based on usage, you will be billed each month based on usage. In addition, your bill will include (i) taxes, surcharges, and fees required by any applicable government entity; (ii) shipping and handling fees, if applicable; and (iii) the method of payment fees, if applicable. All payments must be made in US dollars.
For monthly subscription billing plans, you will be able to use the Service for any consecutive monthly period that has been paid in advance as described in the acceptance materials that you received as part of you sales transaction or on your order confirmation. For example, if your billing cycle begins on the sixth day of the month, then your payment due date (i.e. the date that the amount of your full monthly Service fee, including any and all applicable taxes, must be received by EarthLink) will be on the fifth day of the next month and of each month thereafter.
You must provide accurate billing information including legal name, address, telephone number, and credit or debit card number and expiration date and report all changes to this information promptly to EarthLink.
Charges may be billed on or after your billing cycle date to your method of payment on file each month for the Service including any additional charges incurred (e.g. usage, taxes and fees). EarthLink is not responsible for any fees resulting from charges billed by EarthLink including, but not limited to, overdrawn accounts or exceeding credit card limits.
If you provided EarthLink with a valid credit or debit card, you agree to maintain valid and current credit or debit card information with EarthLink at all times. If you authorized EarthLink to automatically deduct (“ACH Debit”) your monthly Service fees and any other charges, fees, or taxes billed to you, from your checking or savings bank account, then you hereby reaffirm your agreement to the Recurring Automatic Bank Draft Authorization Agreement. You acknowledge and agree that you authorize EarthLink and that EarthLink does not need to obtain any additional authorization from you for any recurring payments or automatic billing options. In addition, if your credit or debit card company provides updated credit or debit card information to EarthLink, you acknowledge that EarthLink does not need to obtain authorization from you for EarthLink to use such information to update your credit or debit card.
If payment by check has been accepted by EarthLink, then payments by check must be received by EarthLink by the due date listed in your monthly paper invoice. EarthLink will charge a processing fee each time you pay your monthly billing invoice. When you pay your fees by check, you also authorize EarthLink to electronically process your payment. If your check is processed electronically, your checking account may be debited on the same day that EarthLink receives your check and neither your check nor a copy of your check will be included with your checking account statement.
EarthLink will charge a fee for returned checks or returned bank drafts from your financial institution.
EarthLink will email an e-invoice to your primary EarthLink or PeoplePC email address selected by or assigned to you during the subscription process (“Contact Email Address”) each month or if you designated a different billing email address, EarthLink will email the e-invoice to such billing email address each month. You may request through https://myaccount.earthlink.net/cam/billing_info.jsp or by calling EarthLink Customer Service that EarthLink mail a paper invoice to your billing mailing address each month. EarthLink will charge your account a fee for each paper invoice. If you elect to have EarthLink mail you your monthly invoice, you may request that EarthLink also email your monthly invoice your Contact Email Address or if you designated a different billing email address, to such billing email address. There is no charge for e-invoices.
Your account will be automatically inactivated if you put a stop payment on your account with your financial institution in connection with the payment of your monthly bill.
All charges are considered valid unless disputed in writing within 30 days of the billing date and mailed to1:
EarthLink, LLC
Customer Service
1439 Peachtree Street NE
Atlanta, Georgia 30309
Adjustments will not be made for charges that are disputed more than 30 days after the billing date.
EarthLink reserves the right (i) to change the fees associated with your Service and institute new fees (e.g. equipment fees) upon email notice at least 30 days prior to the effective date of such new fee to your Contact Email Address and (ii) to change the fees associated with your account upon email notice at least 30 days prior to the effective date of such new fee to your Contact Email Address or your billing email address if different from your Contact Email address.
EarthLink may use various means to recover monies due. If EarthLink retains a collection agency or takes legal action to collect monies due on your account, you agree to pay all costs and expenses of collection incurred by EarthLink, which may include reasonable attorney’s fees and collection agency fees which may be based on a percentage of the amount owed, up to a maximum of 25%, where permitted by applicable law.
9. BILLING PLAN FEATURES (INCLUDING EMAIL STORAGE AND WEBSPACE)
The billing plans for some of the Services may vary by geographic location, phone carrier and cable provider. In the event that you change to a different Service, prior to changing Service consult with an EarthLink representative regarding how such change will affect your billing plan.
If you signed up for a pre-paid billing plan, you will receive the applicable Service for the duration of your subscription term without further monthly Service fees. Depending on the terms of your pre-paid billing plan, your subscription may convert to either a monthly or a fixed period subscription at the end of the initial fixed pre-paid subscription term. Pricing will be subject to the rates in effect at that time for that Service. If you cancel your subscription before the end of the fixed term or if EarthLink terminates your subscription before the end of the fixed term for violation of this Agreement or other applicable EarthLink agreements or policies, EarthLink will not refund, in whole or in part, the amount you have paid for your subscription.
The email storage limits for your billing plan are posted on the EarthLink website located at www.earthlink.net or the PeoplePC website located at www.peoplepc.com . If your mailbox is approaching the storage limit for your Service, it will be noted visually on your web mail. EarthLink also will send email notices to this mailbox stating you are approaching your email storage limit. When your mailbox exceeds the allotted email storage space, you will receive a second email warning from EarthLink that your email storage is over quota and then EarthLink will stop transmitting email messages to your inbox. Any incoming emails will be bounced with an error message to the sender stating that your mailbox is full. After you delete some email messages to free up some space, new messages will be accepted again. You may purchase additional storage up to a fixed limit as described at https://myaccount.earthlink.net or https://myacount.peoplepc.com .
Certain billing plans may offer the ability to create your personal webspace. The maximum webspace available for such use is 10MB per account. Limitations may include, but are not limited to, certain software and certain operating systems. In the event that one of your personal webspace exceeds 10 MB, no additional information can be uploaded to it. If the traffic on one of your personal webspace exceeds 1 GB of webspace in a calendar month, such personal webspace will be shut down until the next calendar month. If you want more space or bandwidth for your personal webspace, you can subscribe to the EarthLink Web Hosting Service.
10. CANCELLATION AND TERMINATION
You may cancel your Service only as follows:
Telephone Cancellation for EarthLink Services: toll free number at 1-888-327-8454
Telephone Cancellation for PeoplePC Services: toll free number at 1-866-772-6277
Fax Cancellation for both EarthLink Services and PeoplePC Services: Please include your account number and current telephone number and fax to 404-795-1034.
Mail Cancellation for both EarthLink Services and PeoplePC Services: Send registered or certified mail, return receipt requested to:
EarthLink, LLC
Cancel (write Name of Service)
1439 Peachtree Street NE
Atlanta, Georgia 30309
*Include your account number and current telephone number.
EarthLink does NOT accept cancellations by email.
EarthLink will issue a confirmation number to you by email as proof of cancellation of your Service. Accounts are set to close at the end of the current billing period. EarthLink does not grant refunds or credits for any prior use including partial use during the last month prior to cancellation. If you cancel by one of the prescribed methods listed above and are mistakenly billed for your Service after the end of the billing period, EarthLink will refund any erroneous charges upon proof of such cancellation.
EarthLink may terminate your account for the Service at any time for any reason, including, without limitation, if (i) your account is delinquent because charges on your method of payment were refused for any reason, (ii) you failed to make payment when due or you did not provide EarthLink with your credit or debit card’s expiration date or expiration date of any other method of payment before the existing expiration date; (iii) EarthLink, in its sole discretion, believes you have breached this Agreement or any other EarthLink agreements or policies; or (iv) your use of the Service is prohibited by law . A termination notice will be sent to you via (i) your Contact Email Address or (ii) U.S. Mail to the billing address for your EarthLink account. If your account for the Dial-Up Service is cancelled by EarthLink due to non-payment and then it is reactivated at a later date, EarthLink will bill you an account reactivation fee.
If your Service is canceled by you or by EarthLink prior to the end of the fixed period in your billing plan and your billing plan includes an early termination fee, EarthLink will bill you the early termination fee set forth in your billing plan. In certain situations, EarthLink may waive the early termination fee, at its discretion, if (i) EarthLink no longer provides the Service to your current location, (ii) you live in an area currently deemed a weather or war disaster area, or (iii) you were deployed for active military service. Your Service will close at the end of the current billing period in which notice of cancellation is received or in which EarthLink canceled your Service.
On the inactivation date of your Service, without further notice to you, your Service will be terminated and you will no longer have Internet access which includes access to your email, files or other information on EarthLink’s servers.
11. USE OF THE SERVICE
You represent that when you transmit, upload, post or submit any content, images or data using the Service you have the legal right to do so and that your use of such content, image or data does not violate any law (including copyright or trademark laws) or any other third party rights. You agree that EarthLink has no responsibility for the accuracy, completeness, value or usefulness of any content, advice or opinions contained in any emails, third party web sites, message boards, chat rooms, social networks or online services. The Internet may contain material that is unsuitable for minors, and you agree to supervise and to accept sole responsibility and liability for any use of the Service by minors through your account.
EarthLink may take any legal and technical remedies to enforce or prevent the violation of this Agreement or any other EarthLink agreement or pol.
12. MONITORING THE SERVICE
EarthLink has no obligation to monitor the Service but may do so to (i) comply with laws, regulations, or governmental or legal requests; (ii) protect the overall integrity of the Service (including the EarthLink network); (iii) operate the technical aspects of the Service in a proper, effective, and reasonable manner; (iv) protect itself, its employees, or others as described in the privacy policy; and (v) enforce or prevent breaches of this Agreement or other EarthLink agreements or policies.
EarthLink may immediately remove your material or information from EarthLink’s servers, in whole or in part, if EarthLink reasonably believes it infringes another’s property rights or violates EarthLink agreements or policies, or any laws or regulations.
EarthLink will use commercially reasonable efforts to schedule any maintenance outages in a way that minimizes the impact on subscribers; however, EarthLink cannot guarantee that your Service will not be interrupted and cannot always provide advance notice of such outages.
13. GENERAL DISCLAIMERS AND WARRANTIES
THE SERVICE AND THE EARTHLINK DIAL-UP MODEM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EARTHLINK AND ITS SUPPLIERS AND VENDORS DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EARTHLINK AND ITS SUPPLIERS AND VENDORS MAKE NO EXPRESS WARRANTIES REGARDING THE SERVICE AND THE EARTHLINK DIAL-UP MODEM AND WAIVE ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EARTHLINK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND VENDORS (COLLECTIVELY “EARTHLINK PARTIES”) WILL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS IN CONNECTION WITH THE SERVICE AND THE EARTHLINK DIAL-UP MODEM RESULTING FROM: (I) AVAILABILITY OR QUALITY WITHIN THE COVERAGE AREA REGARDLESS OF THE CAUSE(S) OF THE PROBLEM; (II) OTHER USERS ACCESSING YOUR DEVICE; (III) VARIATIONS IN THE SPEED OR BANDWIDTH AVAILABILITY TO EACH DEVICE CONNECTED TO THE EARTHLINK NETWORK; (IV) SECURITY BREACHES; (V) EAVESDROPPING; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (VI) YOUR RELIANCE ON OR USE OF THE SERVICE; (VII) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE), DELETION OF FILES, ERRORS, OR DEFECTS REGARDLESS OF WHETHER YOUR DATA IS MAINTAINED ON THE EARTHLINK SERVERS OR YOUR DEVICE(S); (VIII) DELAYS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE OF THE SERVICE; (IX) USE OF THE SERVICE BY YOU OR A THIRD PARTY THAT INFRINGES A THIRD PARTY’S COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET , CONFIDENTIALITY, PRIVACY, OTHER INTELLECTUAL PROPERTY, PROPRIETARY, OR CONTRACTUAL RIGHTS; OR (X) ACCURACY, COMPLETENESS, AND USEFULNESS OF ANY THIRD PARTY PRODUCTS, SERVICES OR INFORMATION OR THE MERCHANTABILITY OF SUCH ITEMS (INCLUDING ANY SUCH ITEMS OFFERED THROUGH CO-BRANDED WEB SITES LINKED FROM THE EARTHLINK WEB SITES).
THE EARTHLINK PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR (I) YOUR FAILURE TO PROPERLY INSTALL, USE OR OPERATE THE EARTHLINK DIAL-UP MODEM OR (II) ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY OF YOUR DEVICES, SOFTWARE, FILES, DATA, PERIPHERALS OR PROPERTY DUE TO YOUR INSTALLATION, ATTEMPTED INSTALLATION, USE, REPAIR OR REMOVAL OF THE EARTHLINK DIAL-UP MODEM.
THE FOREGOING LIMITATIONS APPLY TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF THE EARTHLINK PARTIES WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO THE CAUSE OF ACTION AGAINST ANY EARTHLINK PARTY IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE. YOUR EXCLUSIVE AND ONLY REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
THE CUMULATIVE LIABILITY OF ANY EARTHLINK PARTY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICE AND THE EARTHLINK DIAL-UP MODEM WILL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM.
YOU MAY HAVE OTHER RIGHTS UNDER CERTAIN LAWS IN CERTAIN STATES WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.
14. INDEMNIFICATION
You agree to defend, indemnify and hold the EarthLink Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages including, but not limited to, direct, indirect and consequential damages, attorney’s fees and expenses that an EarthLink Party may sustain or incur by reason of your use or misuse of the Service or the use or misuse of the Service by anyone else through your account including, but not limited to, use or misuse of the Service (i) in violation of applicable laws or regulations or the terms of this Agreement or any other EarthLink agreement or policy; (ii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with such use or misuse; or (iii) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible property (including data).
15. ELECTRONIC COMMUNICATIONS AND PHONE COMMUNICATIONS
15.1 Electronic Communications
You consent to receive notices, documents, disclosures and other communications about your account or EarthLink Service from EarthLink (“Communications”) in an electronic format to your Contact Email Address and agree that the Communications provided to you by EarthLink electronically will be deemed a writing. If you do not want to receive Communications from EarthLink electronically or if you withdraw your consent to receive such Communications electronically, then you must stop using the Service. The withdrawal of your consent will not affect the legal validity and enforceability of any electronic Communications provided or business transacted between EarthLink and you prior to the time you withdraw your consent.
15 . 2 Phone Calling and Texting
In addition, you hereby agree that your use of the Service constitutes your express written consent to receive automated and manually dialed calls, text messages and pre-recorded messages at the phone number(s) that you provide EarthLink in connection with your subscription to or use of the Service. Consent to receiving autodialed calls, text messages, and/or pre-recorded messages from EarthLink is not required to purchase products or services from EarthLink.
15.3 Changing Your Contact Preferences
You may exercise your option not to receive any marketing communications from and/or automated or manually dialed calls, text messages and pre-recorded messages from EarthLink (i) for EarthLink Services, by going directly to https://myaccount.earthlink.net/cam/contactinfo.jsp or calling EarthLink customer service, or (ii) for the PeoplePC DSL Service, by going directly to https://myaccount.peoplepc.com/cam/contactinfo.jsp or calling PeoplePC customer service. You also may text STOP in response to any text message from EarthLink to stop receiving text messages from EarthLink .
16. CUSTOMER SERVICE AND TECHNICAL SUPPORT
For online customer support for your Service, including troubleshooting email, certain connection issues, billing issues, setting up your email, and online account maintenance, go to http://support.earthlink.net/ for the EarthLink Services or https://support.peoplepc.com/ for the PeoplePC Services. For specific billing questions, you also can login to myaccount at https://myaccount.earthlink.net/cam/whlogin.jsp .
To contact EarthLink Customer Service via telephone or live chat, go to http://www.earthlink.net/about/contact/ for the EarthLink Services and http://psc.peoplepc.com/contact/contact.php for the PeoplePC Services.
EarthLink may provide technical support for certain computer software configurations and browser setups for problems connecting to the Internet through laptops, notebooks and tablets, but not for smart phones. However, EarthLink may refer you to the manufacturer of any hardware or software for technical support.
17. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
18. DISPUTE RESOLUTION BY BINDING ARBITRATION (INCLUDING IMPORTANT INFORMATION FOR CALIFORNIA RESIDENTS)
18.1 Summary
Most subscriber concerns can be resolved by calling 1-800-EARTHLINK. If EarthLink is unable to resolve your complaint to your satisfaction (or if EarthLink has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed $75,000, EarthLink will pay all costs of the arbitration. Moreover, in arbitration you are entitled to recover attorneys’ fees from EarthLink to at least the same extent as you would be in court.
In addition, under certain circumstances (as explained below), EarthLink will pay you more than the amount of the arbitrator’s award and will pay your attorney (if any) his or her reasonable attorneys’ fees if the arbitrator awards you an amount that is greater than what EarthLink has offered you to settle the dispute.
18.2 Agreement to Arbitrate
EarthLink and you agree to resolve all disputes and claims between us through binding arbitration by the American Arbitration Association (“AAA”). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- Claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
- Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- Claims that may arise after the termination of this Agreement.
References to “EarthLink,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Service under this Agreement or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court rather than by arbitration if the claim qualifies for small claims court in a location where jurisdiction and venue over EarthLink and you is proper. This agreement to arbitrate does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.
You agree that, by entering into this Agreement, you and EarthLink are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this provision.
18.3 Informal Dispute Resolution Prior to Arbitration
18.3(1) Notice of Dispute
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). A Notice to EarthLink should be addressed to: EarthLink, LLC, 4001 Rodney Parham Rd., Little Rock, AR 72212, Mailstop B1F03-53A, Attn: Legal Department (Arbitration) (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). A Notice to you will be addressed to the billing address that EarthLink has on file for you.
18.3(2) Settlement Proposals
The amount of any settlement offer made by EarthLink or you will not be disclosed to the arbitrator in any arbitration between us until after the arbitrator determines the amount, if any, to which you or EarthLink is entitled.
18.3(3) Failure to Reach Resolution
If EarthLink and you do not reach an agreement to resolve the claim within 45 days after the Notice is received, you or EarthLink may commence an arbitration proceeding.
18.4 Commencement of Arbitration
You may initiate an arbitration by filing a claim form with the AAA and sending a copy of the claim form to EarthLink at the Notice Address. You can access a claim form and directions for filing at the website for AAA, https://www.adr.org. If EarthLink receives notice at the Notice Address that you have commenced arbitration and paid the filing fee to the AAA, it will promptly reimburse you for your payment of the filing fee by check to your address or by credit to your account unless your claim is for greater than $75,000. (The filing fee currently is $200 for claims under $10,000 but is subject to change by the arbitration provider. If you are unable to pay this fee, EarthLink will pay it directly upon receiving a written request from you to the Notice Address.)
18.5 Arbitration Procedures
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the AAA, as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at https://www.adr.org or by calling the AAA at 1-800-778-7879. One arbitrator, who is selected under the AAA Rules, will conduct the arbitration. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for a court to decide. Unless EarthLink and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. The right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
18.6 Appeal
If an award issued by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the AAA by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the AAA. The AAA will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel will be final and binding, except for any appellate right which exists under the FAA. If an award issued by the arbitrator does not exceed $75,000, any appeal rights from the award will be governed by the FAA.
18.7 Arbitration Fees
Except as otherwise provided for herein, EarthLink will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse EarthLink for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
18.8 Awards and Attorney’s Fees
If the arbitrator issues you an award that is greater than the value of EarthLink’s last written settlement offer made before an arbitrator was selected, or if the arbitrator issues you an award and EarthLink made no settlement offer, then EarthLink will pay you the amount of the award or $2,500 (“Alternative Payment”), whichever is greater, and pay your attorney, if any, the amount of attorney’s fees incurred, and reimburse any expenses (including expert witness fees and costs) that your attorney, if any, reasonably accrues and documents with specificity for investigating, preparing, and pursuing your claim in arbitration (“Attorney Fee Award”).
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the Alternative Payment and the Attorney Fee Award at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
The right to attorneys’ fees and expenses discussed in this Section 18.8 supplements any right to attorneys’ fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys’ fees or expenses. Although under some laws EarthLink may have the right to an award of attorney’s fees and expenses if it prevails in an arbitration, EarthLink agrees that it will not seek such an award.
18.9 Waiver of Class Actions; Limits of Scope of Arbitrator’s Authority
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND EARTHLINK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and EarthLink agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision will be null and void and all disputes will be heard by a court.
18.10 Future Changes to Agreement to Arbitrate
Notwithstanding any provision in this Agreement to the contrary, if EarthLink makes any future change to this arbitration provision (other than a change to the Notice Address) during the term of your subscription with EarthLink, you may reject any such change by sending us written notice to the Notice Address postmarked within 30 days of the date of the change. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language in this Section 18 of this Version dated September 15, 2016.
18.11 Notice to California Residents
California residents are entitled to the following information:
The Service is provided by EarthLink, LLC, 1439 Peachtree Street NE, Atlanta, Georgia 30309.
Charges may vary depending on the type of Service.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834 or by telephone at 1-800-952-5210.
18.12 Survival
This Section 18 will survive the termination of your Service with EarthLink.
19. REVISIONS TO THIS AGREEMENT
EarthLink may revise, amend, or modify this Agreement at any time by posting the revised version of this Agreement on the EarthLink Web Site located at www.earthlink.net which is also linked from www.peoplepc.com. The revised version will be effective on the date that it is posted as stated at the end of the revised version. The material changes to this Agreement will be noted in endnotes of the revised version. Your continued use of the Service after the date of the revised version constitutes your acceptance of all of the revisions. If you do not agree to the revisions in the revised version, your sole and exclusive remedy will be to terminate your account and use of the Service.
20. MISCELLANEOUS
You may not assign your rights or delegate any of your duties under this Agreement without the prior written consent of EarthLink, and any attempted assignment or delegation without such consent will be void. If one or more provisions of this Agreement are held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration provision in Section 18; if that prohibition is found to be unenforceable, the entire DISPUTE RESOLUTION BY BINDING ARBITRATION provision (but only the DISPUTE RESOLUTION BY BINDING ARBITRATION provision) will be null and void and the dispute will be heard by a court. EarthLink may amend or replace such unenforceable provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of EarthLink as reflected in the original provision. Nothing in this Agreement or in the understanding of the parties confers upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. EarthLink may subcontract any work, obligations or other performance required of EarthLink under this Agreement without your consent. EarthLink will not be liable for delays, damages or failures in performance because of causes beyond its reasonable control, including, but not limited to, acts of a government in its sovereign capacity, acts of war, terrorism, acts of a public enemy, fires, earthquakes, acts of God, labor disputes, strikes, work slow-downs or other labor-related activity.
Effective Date: September 30, 2017
The following endnote summarize the material revision made in this September 30, 2017 version of this Agreement compared to the September 15, 2016 version of this Agreement.
1 EarthLink address changes throughout the Agreement.
EARTHLINK DSL & HOME PHONE SERVICE AGREEMENT
READ THIS SERVICE AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE EARTHLINK DSL & HOME PHONE SERVICE.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. AGREEMENT
This EarthLink DSL & Home Phone Service Agreement (“Agreement”) governs your use of the EarthLink DSL and Home Phone Service (“Service”). This Agreement is between EarthLink, LLC and its related entities (“EarthLink”) and you. This Agreement consists of the terms and conditions below, the specific terms of your billing plan for the Service to which you subscribe.
By establishing an account with EarthLink or using the Service, you agree to be bound by this Agreement and to use the Service in compliance with the terms of this Agreement and all applicable federal, state and local laws, rules and regulations. This Agreement governs both the Service and the DSL modem and filters used in connection with the Service (“EarthLink Modem”).
2. TERM OF THIS AGREEMENT
The effective date of this Agreement is the date on which you subscribed to the Service. This Agreement continues until the date of termination of your Service. Sections 7, 8, 11, 12, 15, 16, 17, 19, 20 and 22 of this Agreement will survive the termination of this Agreement.
3. SUBSCRIPTION INFORMATION
To order and receive the Service, you acknowledge that you are 18 years of age or older, and you have legal authority to enter into this Agreement. You must provide EarthLink with (i) a valid credit or debit card or other EarthLink approved payment method for the Service, (ii) your billing address, and (iii) your shipping address, if different from your billing address, for shipping the EarthLink Modem. You represent that all information you provided during the subscription process is accurate and complete and that you will update such information with EarthLink should any of it change.
The Service must be available to your location. EarthLink may accept or reject any potential subscriber to the Service in its sole discretion. Even if EarthLink has accepted your order, EarthLink cannot guarantee that the Service can be provisioned to your address. EarthLink may accept or reject any potential subscriber to the Service in its sole discretion. EarthLink will send you a welcome email as written confirmation of your order. Even if EarthLink has accepted your order, EarthLink cannot guarantee that the Service can be provisioned to your address.
EarthLink reserves the right to verify the accuracy of the information you submit in connection with your subscription and your account and you consent to such verification. To understand how EarthLink handles and protects your personal information, please see the Privacy Policy.
4. USERNAMES AND PASSWORDS, SECURITY
Upon registration, you will receive a username, a password, and other account information. You are responsible for (i) maintaining the confidentiality of both your username and password, and (ii) the use of your Service by any person who uses your username and password to access the Service, whether or not you specifically authorize such person’s use. You must notify EarthLink immediately upon discovering any unauthorized use of your Service and other breaches of security. Usernames, passwords, email addresses and IP addresses are EarthLink’s property and EarthLink may alter or replace them at any time.
You are solely responsible for maintaining the security of (i) the device (such as a desktop, laptop, notebook, tablet or smart phone (“Device”) you will use in connection with the Service; (ii) any WI-FI network you will use in connection with the Service; (iii) your data; and (iv) your username and password. In addition, you are solely responsible for the encryption of any of your data and the back-up and restoration of your Device and data. EarthLink recommends that you use anti-virus, anti-spyware and firewall software and that you update this software, as recommended by the applicable provider.
5. GENERAL DESCRIPTION OF AND RESTRICTIONS ON THE SERVICES
The Service consists of the combination of DSL Internet access and phone service and DSL Internet access, with various other Internet-related services such as email and web space. You should use the EarthLink Modem for the DSL portion of the Service and your own equipment for the phone portion of the Service. EarthLink’s self-installation kit includes the software that you may use to access the Service (“EarthLink Access Software”). The minimum computer requirements for the EarthLink Access Software are located at www.earthlink.net.
The Service will be used in a fixed location in qualifying areas of the United States and is for residential purposes only. This is not a business service. You will not resell or transfer the Service or the EarthLink Modem to another party without the prior written consent of EarthLink. EarthLink reserves the right to immediately cancel or modify your Service if EarthLink determines, in its sole and absolute discretion that your use of the Service or the EarthLink Modem is, or at any time was, inconsistent with normal fixed residential usage patterns or for any other reason. You will use the Service and the EarthLink Modem only for lawful purposes.
The Service quality can vary depending on location, line quality, inside wiring, Internet traffic, and other factors beyond the control of EarthLink. EarthLink does not guarantee call quality or upload or download speeds and your sole remedy is to cancel the Service.
The Service may not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 711 and 911, which is provided for elsewhere in this Agreement) services in one or more (or all) service areas. If you obtained a phone number from EarthLink, it will not be listed in any phone directories. Phone numbers transferred from your local phone company may; however, be listed if they were listed prior to porting.
The Service may not be compatible with home security systems. You are responsible for contacting your alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.
You are solely responsible for determining if use of a particular dial-up number will cause you to incur long-distance, toll, or any other charges. EarthLink is not responsible for any long-distance, toll, or other charges you incur. EarthLink may change its POP numbers at any time. EarthLink reserves the right to direct you to use certain numbers to access the Service or to restrict use of specific access numbers. Usernames, passwords, email addresses and IP addresses are EarthLink’s property and EarthLink may alter or replace them at any time.
The Service also includes a dial-up connection to the Internet for up to 20 hours per monthly billing cycle. In calculating the 20 hours of usage, the dial-up usage of each Device logged into your EarthLink account to access the Internet is counted. For example, if you have two Devices logged in from 10:00 a.m. to 11:00 a.m., your total usage for that time period will be 2 hours of usage. If your dial-up connection usage exceeds 20 hours per month, you will be charged an additional $1.00 per hour (up to a maximum of $21.95 per month), pro-rated to the minute, through the end of the monthly billing cycle.
EarthLink reserves the right to change any of the features, content or applications of the Service at any time with or without notice to you.
6. EMERGENCY SERVICES DIALING 911
The Service supports E911 access to emergency services; however, there are important differences from traditional 911 services. You must give EarthLink the physical location where you will be using the Service for E911 service to function properly. You hereby acknowledge that registering your physical location where you will be using the Service is your responsibility.
Your 911 dialing feature (“EarthLink’s E911 Dialing”) may not be operational until you receive confirmation from EarthLink that your E911 has been activated.
EarthLink’s E911 Dialing will not function under any one of the following circumstances:
- Before the Service is activated by EarthLink and notice is sent;
- Service outages due to suspension or cancellation of your account; or
- Changing your number or adding or porting new numbers to your account without successfully registering your location of use for each changed, newly added or newly ported phone number.
There may be a greater possibility of network congestion and/or reduced speed in the routing of an EarthLink E911 Dialing call made utilizing the Service as compared to traditional 911 dialing over traditional public telephone networks.
7. E911 DISCLAIMER OF LIABILITY AND INDEMNIFICATION
EarthLink does not have any control over whether, or the manner in which, calls using EarthLink E911 Dialing are answered or addressed by any local emergency response center. EarthLink disclaims all responsibility for the conduct of local emergency response centers and the national emergency calling center. EarthLink disclaims any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither EarthLink nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to EarthLink’s E911 Dialing unless such claims or causes of action arose from EarthLink’s gross negligence, recklessness or willful misconduct. You will defend, indemnify, and hold harmless EarthLink, its officers, directors, employees, subsidiaries, affiliates, suppliers and agents and any other service provider who furnishes services to you in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys” fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including EarthLink’s E911 Dialing, incorrectly routed EarthLink’s E911 Dialing calls, and/or the inability of any user of the Service to be able to use EarthLink’s E911 Dialing or access emergency service personnel.
If you are not comfortable with the limitations of EarthLink’s E911 Dialing service, you should consider having an alternate means of accessing traditional 911 or other E911 services or canceling the Service.
8. SPECIFIC TERMS FOR THE EARTHLINK MODEM
In the event that an EarthLink customer service representative confirms that your DSL Modem is not technically feasible, EarthLink will ship a new EarthLink Modem to you.
If you are unable to perform self-installation, EarthLink may suggest an outside vendor to help install the new EarthLink Modem. You will be responsible for all costs and scheduling associated with the installation by a third party. You are also responsible for all inside wiring repair necessary to install the service. If you are not the owner of the premises, you warrant that you have obtained the consent of the owner for vendor personnel and/or its agents to enter the premises for installation. You will indemnify and hold EarthLink harmless from and against any claims of the owner of the premises arising out of the performance of this Agreement.
The installation, use, maintenance, inspection, repair and removal of an EarthLink Modem may result in damage to your computer or a service outage. You are solely responsible for backing up all of your existing computer files and data. You assume responsibility for impacts to or loss of any warranty associated with the opening of your computer for installation purposes.
9. BILLING AND PAYMENT
You are subscribing to the Service for the 12 Month Commitment period; and thereafter, the Service will be provided on a month to month basis until the Service is canceled in accordance with the terms of this Agreement.
If your billing plan is based on a monthly subscription fee, you agree to pay the recurring monthly fee in your billing plan due in advance of the month incurred. If your billing plan is based on usage, you will be billed each month based on usage. In addition, your bill will include (i) taxes, surcharges, and fees required by any applicable government entity; (ii) shipping and handling fees, if applicable; and (iii) method of payment charges, if applicable. Certain charges may not appear on the bill for the same period in which they were incurred.
If your billing plan is based on a monthly subscription fee, you will be billed a flat monthly fee. If your billing plan is based on usage, you will be billed each month based on usage. In addition, your bill will include (i) taxes, surcharges, and fees required by any applicable government entity and (ii) shipping and handling fees. All payments must be made in US dollars.
For monthly subscription billing plans, you will be able to use the Service for any consecutive monthly period that has been paid in advance as described in the acceptance materials that you received as part of you sales transaction or on your order confirmation. For example, if your billing cycle begins on the sixth day of the month, then your payment due date (i.e. the date that the amount of your full monthly Service fee, including any and all applicable taxes, must be received by EarthLink) will be on the fifth day of the next month and of each month thereafter.
Charges may be billed on or after your billing cycle date to your method of payment on file each month for the Service including any additional charges incurred (e.g. usage, taxes and fees). EarthLink is not responsible for any fees resulting from charges billed by EarthLink including, but not limited to, overdrawn accounts or exceeding credit card limits.
If you provided EarthLink with a valid credit or debit card, you agree to maintain valid and current credit or debit card information with EarthLink at all times. If you authorized EarthLink to automatically deduct (“ACH Debit“) your monthly Service fees and any other charges, fees, or taxes billed to you, from your checking or savings bank account, then you hereby reaffirm your agreement to the Recurring Automatic Bank Draft Authorization Agreement. You acknowledge and agree that you authorize EarthLink and that EarthLink does not need to obtain any additional authorization from you for any recurring payments or automatic billing options. In addition, if your credit or debit card company provides updated credit or debit card information to EarthLink, you acknowledge that EarthLink does not need to obtain authorization from you for EarthLink to use such information to update your credit or debit card.
If payment by check has been accepted by EarthLink, then payments by check must be received by EarthLink by the due date listed in your monthly paper invoice. EarthLink will charge a processing fee each time you pay your monthly billing invoice . When you pay your fees by check, you also authorize EarthLink to electronically process your payment. If your check is processed electronically, your checking account may be debited on the same day that EarthLink receives your check and neither your check nor a copy of your check will be included with your checking account statement. In addition to your monthly paper invoice, you may request that the monthly invoice also be sent to you via your Contact Email Address or if you designated a different billing email address , to such billing email address. EarthLink will charge you an account fee for each such paper invoice.
EarthLink will charge a fee for returned checks or returned bank drafts from your financial institution.
EarthLink will email an e-invoice to your primary EarthLink email address selected by or assigned to you during the subscription process (“Contact Email Address”) each month or if you designated a different billing email address, EarthLink will email the e-invoice to such billing email address each month. You may request through https://myaccount.earthlink.net/cam/billing_info.jsp or by calling EarthLink Customer Service that EarthLink mail a paper invoice to your billing mailing address each month. EarthLink will charge your account a fee for each paper invoice. If you elect to have EarthLink mail you your monthly invoice, you may request that EarthLink also email your monthly invoice your Contact Email Address or if you designated a different billing email address , to such billing email address. There is no charge for e-invoices.
Your account will be automatically inactivated if you put a stop payment on your account with your financial institution in connection with the payment of your monthly bill.
All charges are considered valid unless disputed in writing within 30 days of the billing date and mailed to1 :
EarthLink, LLC
Customer Service
1439 Peachtree Street NE
Atlanta, Georgia 30309
Adjustments will not be made for charges that are disputed more than 30 days after the billing date.
For fixed-location services for DSL, moving to another location will require the service to be re-provisioned at the new location. This may result in substantial interruption of the Service and will result in fees associated with cancellation and setting up a new account.
Delinquent accounts may be suspended or canceled at EarthLink’s sole discretion. If you pay your monthly Service fee to a third party provider, your account also may be suspended for non-payment if your account is delinquent. If your account is suspended, you may be charged reinstatement fees to reactivate your account.
In the event that you change to a different EarthLink service or change the speed of your existing Service, consult with an EarthLink representative how such change will affect your billing plan.
EarthLink reserves the right (i) to change the fees associated with your Service and institute new fees (e.g. equipment fees) upon email notice at least 30 days prior to the effective date of such new fee to your Contact Email Address and (ii) to change the fees associated with your account upon email notice at least 30 days prior to the effective date of such new fee to your Contact Email Address or your billing email address if different from your Contact Email address.
EarthLink may use various means to recover monies due. If EarthLink retains a collection agency or takes legal action to collect monies due on your account, you agree to pay all costs and expenses of collection incurred by EarthLink, which may include reasonable attorney’s fees and collection agency fees which may be based on a percentage of the amount owed, up to a maximum of 25%, where permitted by applicable law.
10. BILLING PLAN FEATURES (INCLUDING EMAIL STORAGE AND WEBSPACE)
The billing plans for some of the Service may vary by geographic location, phone carrier and cable provider. In the event that you change to a different Service, prior to changing Service consult with an EarthLink representative regarding how such change will affect your billing plan.
The email storage limits for your billing plan are posted on the EarthLink website located at www.earthlink.net. If your mailbox is approaching the storage limit for your Service, it will be noted visually on your web mail. EarthLink also will send email notices to this mailbox stating you are approaching your email storage limit. When your mailbox exceeds the allotted email storage space, you will receive a second email warning from EarthLink that your email storage is over quota and then EarthLink will stop transmitting email messages to your inbox. Any incoming emails will be bounced with an error message to the sender stating that your mailbox is full. After you delete some email messages to free up some space, new messages will be accepted again. You may purchase additional storage up to a fixed limit as described at https://myaccount.earthlink.net.
Certain billing plans may offer the ability to create your personal webspace. The maximum webspace available for such use is 10MB per email account. Limitations may include, but are not limited to, certain software and certain operating systems. In the event that one of your personal webspace exceeds 10 MB, no additional information can be uploaded to it. If the traffic on one of your personal webspace exceeds 1 GB of webspace in a calendar month, such personal webspace will be shut down until the next calendar month. If you want more space or bandwidth for your personal webspace, you can subscribe to the EarthLink Web Hosting Service.
11. CANCELLATION AND TERMINATION
You may cancel your Service only as follows:
- Telephone Cancellation: 1-888- 327-8454
- Fax Cancellation: 1-404-795-1034 *include your account number and current telephone number.
- Mail Cancellation: Send registered or certified mail, return receipt requested to:
EarthLink, LLC
Cancel DSL & Home Phone Service
1439 Peachtree Street NE
Atlanta, Georgia 30309
*Include your account number and current telephone number.
EarthLink does NOT accept cancellations by email.
Cancellation will be effective at the end of the current billing cycle.
EarthLink will issue a confirmation number to you by email as proof of cancellation of your Service. Accounts are set to close at the end of the current billing period. EarthLink does not grant refunds or credits for any prior use including partial use during the last month prior to cancellation. Certain charges, such as 411 and international calling charges, will be billed after the account cancellation date.
If you cancel by one of the prescribed methods listed above and are mistakenly billed for your Service after the end of the billing period, EarthLink will refund any erroneous charges upon proof of such cancellation.
In the event that you port out (transfer) your existing phone number to another carrier and you do not contact EarthLink that you are cancelling your Service, EarthLink will use such port out date as the date of your cancellation of the Service.
If you move your Service or change your local telephone company and EarthLink can provide the Service at the new location or on the new telephone line, you must pay a reactivation fee because this change requires a new installation.
On the inactivation date of your Service, without further notice to you, your Service will be terminated and you will no longer have Internet access which includes access to your email, files or other information on EarthLink’s servers.
Cancellation of your account at any time will not excuse you from paying all accrued and unpaid charges due under this Agreement. After your account cancellation date, you also will be responsible for any unbilled charges, such as international calling and directory assistance charges.
EarthLink may terminate your account for the Service at any time for any reason, including, without limitation, if (i) your account is delinquent because charges on your method of payment were refused for any reason, (ii) you failed to make payment when due or you did not provide EarthLink with your credit or debit card’s expiration date or expiration date of any other method of payment before the existing expiration date; (iii) EarthLink, in its sole discretion, believes you have breached this Agreement or any other EarthLink agreements or policies; or (iv) your use of the Service is prohibited by law . A termination notice will be sent to you via (i) your Contact Email Address or (ii) U.S. Mail to the billing address for your EarthLink account. If your account for the Service is cancelled by EarthLink due to non-payment and then it is reactivated at a later date, EarthLink will bill you an account reactivation fee.
12. NUMBER TRANSFER ON SERVICE INACTIVATION
Upon the inactivation date of your Service, EarthLink may, in its sole and absolute discretion, release to your new service provider the phone number that you ported (transferred or moved over) to EarthLink from your previous service provider and used in connection with your Service if:
- Such new service provider is able to accept such number;
- Your account has been properly canceled;
- Your account is completely current, including payment for all charges and applicable termination fees; and
- You request the transfer upon cancelling your account with EarthLink.
EarthLink’s number porting policies and procedures will be consistent with the applicable laws and regulations. If you want to keep your number, do NOT cancel the Service until you have made arrangements with another provider to transfer your number first.
13. USE OF THE SERVICE
You represent that when you transmit, upload, post or submit any content, images or data using the Service you have the legal right to do so and that your use of such content, image or data does not violate any law (including copyright or trademark laws) or any other third party rights. You agree that EarthLink has no responsibility for the accuracy, completeness, value or usefulness of any content, advice or opinions contained in any emails, third party web sites, message boards, chat rooms, social networks or online services. The Internet may contain material that is unsuitable for minors, and you agree to supervise and to accept sole responsibility and liability for any use of the Service by minors through your account.
EarthLink may take any legal and technical remedies to enforce or prevent the violation of this Agreement or any other EarthLink agreement or policy.
14. MONITORING THE SERVICE
EarthLink has no obligation to monitor the Service but may do so to (i) comply with laws, regulations, or governmental or legal requests; (ii) protect the overall integrity of the Service (including the EarthLink network); (iii) operate the technical aspects of the Service in a proper, effective, and reasonable manner; (iv) protect itself, its employees, or others as described in the Privacy Policy; and (v) to enforce or prevent breaches of this Agreement or other EarthLink agreements or policies.
EarthLink will only disclose information regarding your use of your Service in accordance with the Privacy Policy. EarthLink may immediately remove your material or information from EarthLink’s servers, in whole or in part, if EarthLink reasonably believes it infringes another’s property rights or other EarthLink agreements or policies, or any laws or regulations.
EarthLink will use commercially reasonable efforts to schedule any maintenance outages in a way that minimizes the impact on subscribers; however, EarthLink cannot guarantee that your Service will not be interrupted and cannot always provide advance notice of such outages.
15. GENERAL DISCLAIMERS AND WARRANTIES
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EARTHLINK AND ITS SUPPLIERS AND VENDORS DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. EARTHLINK AND ITS SUPPLIERS AND VENDORS MAKE NO EXPRESS WARRANTIES AND WAIVE ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EARTHLINK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND VENDORS (COLLECTIVELY “EARTHLINK PARTIES”) WILL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS IN CONNECTION WITH THE SERVICE AND THE EARTHLINK MODEM RESULTING FROM: (I) AVAILABILITY OR QUALITY WITHIN THE COVERAGE AREA REGARDLESS OF THE CAUSE(S) OF THE PROBLEM; (II) OTHER USERS ACCESSING YOUR DEVICE; (III) VARIATIONS IN THE SPEED OR BANDWIDTH AVAILABILITY TO EACH DEVICE CONNECTED TO THE EARTHLINK NETWORK; (IV) SECURITY BREACHES; (V) EAVESDROPPING; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (VI) YOUR RELIANCE ON OR USE OF THE SERVICE; (VII) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE), DELETION OF FILES, ERRORS, OR DEFECTS REGARDLESS OF WHETHER YOUR DATA IS MAINTAINED ON THE EARTHLINK SERVERS OR YOUR DEVICE(S); (VIII) DELAYS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE OF THE SERVICE; (IX) USE OF THE SERVICE BY YOU OR A THIRD PARTY THAT INFRINGES A THIRD PARTY’S COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET , CONFIDENTIALITY, PRIVACY, OTHER INTELLECTUAL PROPERTY, PROPRIETARY, OR CONTRACTUAL RIGHTS; OR (X) ACCURACY, COMPLETENESS, AND USEFULNESS OF ANY THIRD PARTY PRODUCTS, SERVICES OR INFORMATION OR THE MERCHANTABILITY OF SUCH ITEMS (INCLUDING ANY SUCH ITEMS OFFERED THROUGH CO-BRANDED WEB SITES LINKED FROM THE EARTHLINK WEB SITES).
THE EARTHLINK PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR (I) YOUR FAILURE TO PROPERLY INSTALL, USE OR OPERATE THE EARTHLINK MODEM OR (II) ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY OF YOUR DEVICES, SOFTWARE, FILES, DATA, PERIPHERALS OR PROPERTY DUE TO YOUR INSTALLATION, ATTEMPTED INSTALLATION, USE, REPAIR OR REMOVAL OF THE EARTHLINK MODEM.
THE FOREGOING LIMITATIONS APPLY TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF THE EARTHLINK PARTIES WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO THE CAUSE OF ACTION AGAINST ANY EARTHLINK PARTY IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE. YOUR EXCLUSIVE AND ONLY REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
THE CUMULATIVE LIABILITY OF ANY EARTHLINK PARTY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICE AND THE EARTHLINK MODEM WILL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM.
YOU MAY HAVE OTHER RIGHTS UNDER CERTAIN LAWS IN CERTAIN STATES WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.
16. INDEMNIFICATION
You agree to defend, indemnify and hold the EarthLink Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages including, but not limited to, direct, indirect and consequential damages, attorney’s fees and expenses that an EarthLink Party may sustain or incur by reason of your use or misuse of the Service or the use or misuse of the Service by anyone else through your account including, but not limited to, use or misuse of the Service (i) in violation of applicable laws or regulations or the terms of this Agreement or any other EarthLink agreement or policy; (ii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with such use or misuse; or (iii) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible property (including data).
In addition, if you are not the owner of the premises where you are going to install the EarthLink Modem, you warrant that you have obtained the consent of the owner for EarthLink or vendor personnel and/or agents to enter the premises for installation. You will indemnify, defend and hold the EarthLink Parties harmless from and against any claims of the owner of the premises in connection with the installation of the EarthLink Modem.
17. ELECTRONIC COMMUNICATIONS AND PHONE COMMUNICATIONS
17.1 Electronic Communications
You consent to receive notices, documents, disclosures and other communications from EarthLink about your account or the Service (“Communications”) in an electronic format to your Contact Email Address and agree that the Communications provided to you by EarthLink electronically will be deemed a writing. If you do not want to receive Communications from EarthLink electronically or if you withdraw your consent to receive such Communications electronically, then you must stop using the Service. The withdrawal of your consent will not affect the legal validity and enforceability of any electronic Communications provided or business transacted between EarthLink and you prior to the time you withdraw your consent.
17.2 Phone Calling and Texting
In addition, you hereby agree that your use of the Service constitutes your express written consent to receive automated and manually dialed calls, text messages and pre-recorded messages at the phone number(s) that you provide EarthLink in connection with your subscription to or use of the Service. Consent to receiving autodialed calls, text messages, and/or pre-recorded messages from EarthLink is not required to purchase products or services from EarthLink.
17.3 Changing Your Contact Preferences
You may exercise your option not to receive any marketing communications from and/or automated or manually dialed calls, text messages and pre-recorded messages from EarthLink by going directly to https://myaccount.earthlink.net/cam/contactinfo.jsp or calling EarthLink customer service. You also may text STOP in response to any text message from EarthLink to stop receiving text messages from EarthLink.
18. CUSTOMER SERVICE AND TECHNICAL SUPPORT
For online customer support for your Service, including troubleshooting email, certain connection issues, billing issues, setting up your email, and online account maintenance, go to http://support.earthlink.net/.
To contact EarthLink Customer Service via telephone or live chat, go to http://www.earthlink.net/about/contact/.
EarthLink may provide technical support for certain computer software configurations and browser setups for problems connecting to the Internet through laptops, notebooks and tablets, but not for smart phones. However, EarthLink may refer you to the manufacturer of any hardware or software for technical support.
To contact EarthLink Customer Service via telephone or live chat, go to http://www.earthlink.net/about/contact/.
19. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
20. DISPUTE RESOLUTION BY BINDING ARBITRATION (INCLUDING IMPORTANT INFORMATION FOR CALIFORNIA RESIDENTS)
20.1 Summary
Most subscriber concerns can be resolved by calling 1-800-EARTHLINK. If EarthLink is unable to resolve your complaint to your satisfaction (or if EarthLink has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed $75,000, EarthLink will pay all costs of the arbitration. Moreover, in arbitration you are entitled to recover attorneys’ fees from EarthLink to at least the same extent as you would be in court.
In addition, under certain circumstances (as explained below), EarthLink will pay you more than the amount of the arbitrator’s award and will pay your attorney (if any) his or her reasonable attorneys’ fees if the arbitrator awards you an amount that is greater than what EarthLink has offered you to settle the dispute.
20.2 Agreement to Arbitrate
EarthLink and you agree to resolve all disputes and claims between us through binding arbitration by the American Arbitration Association (“AAA”). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- Claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
- Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- Claims that may arise after the termination of this Agreement.
References to “EarthLink,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Services under this Agreement or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court rather than by arbitration if the claim qualifies for small claims court in a location where jurisdiction and venue over EarthLink and you is proper. This agreement to arbitrate does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.
You agree that, by entering into this Agreement, you and EarthLink are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this provision.
20.3 Informal Dispute Resolution Prior to Arbitration
20.3(1) Notice of Dispute
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). A Notice to EarthLink should be addressed to: EarthLink, LLC, 4001 Rodney Parham Rd., Little Rock, AR 72212, Mailstop B1F03-53A, Attn: Legal Department (Arbitration) (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). A Notice to you will be addressed to the billing address that EarthLink has on file for you.
20.3(2) Settlement Proposals
The amount of any settlement offer made by EarthLink or you will not be disclosed to the arbitrator in any arbitration between us until after the arbitrator determines the amount, if any, to which you or EarthLink is entitled.
20.3(3) Failure to Reach Resolution
If EarthLink and you do not reach an agreement to resolve the claim within 45 days after the Notice is received, you or EarthLink may commence an arbitration proceeding.
20.4 Commencement of Arbitration
You may initiate an arbitration by filing a claim form with the AAA and sending a copy of the claim form to EarthLink at the Notice Address. You can access a claim form and directions for filing at the website for AAA, https://www.adr.org. If EarthLink receives notice at the Notice Address that you have commenced arbitration and paid the filing fee to the AAA, it will promptly reimburse you for your payment of the filing fee by check to your address or by credit to your account unless your claim is for greater than $75,000. (The filing fee currently is $200 for claims under $10,000 but is subject to change by the arbitration provider. If you are unable to pay this fee, EarthLink will pay it directly upon receiving a written request from you to the Notice Address.)
20.5 Arbitration Procedures
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the AAA, as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at https://www.adr.org, or by calling the AAA at 1-800-778-7879. One arbitrator, who is selected under the AAA Rules, will conduct the arbitration. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for a court to decide. Unless EarthLink and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. The right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
20.6 Appeal
If an award issued by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the AAA by a written notice of appeal filed within 30 days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the AAA. The AAA will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel will be final and binding, except for any appellate right which exists under the FAA. If an award issued by the arbitrator does not exceed $75,000, any appeal rights from the award will be governed by the FAA.
20.7 Arbitration Fees
Except as otherwise provided for herein, EarthLink will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse EarthLink for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
20.8 Awards and Attorney’s Fees
If the arbitrator issues you an award that is greater than the value of EarthLink’s last written settlement offer made before an arbitrator was selected, or if the arbitrator issues you an award and EarthLink made no settlement offer, then EarthLink will pay you the amount of the awardor $2,500 (“Alternative Payment”), whichever is greater, and pay your attorney, if any, the amount of attorney’s fees incurred, and reimburse any expenses (including expert witness fees and costs) that your attorney, if any, reasonably accrues and documents with specificity for investigating, preparing, and pursuing your claim in arbitration (“Attorney Fee Award”).
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the Alternative Payment and the Attorney Fee Award at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
The right to attorneys’ fees and expenses discussed in this Section 20.8 supplements any right to attorneys’ fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys’ fees or expenses. Although under some laws EarthLink may have the right to an award of attorney’s fees and expenses if it prevails in an arbitration, EarthLink agrees that it will not seek such an award.
20.9 Waiver of Class Actions; Limits of Scope of Arbitrator’s Authority
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND EARTHLINK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and EarthLink agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision will be null and void and all disputes will be heard by a court.
20.10 Changes to Agreement to Arbitrate
Notwithstanding any provision in this Agreement to the contrary, if EarthLink makes any future change to this arbitration provision (other than a change to the Notice Address) during the term of your subscription with EarthLink, you may reject any such change by sending us written notice to the Notice Address postmarked within 30 days of the date of the change. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language in this Section 20 of this Version dated September 15, 2016.
20.11 Notice to California Residents
California residents are entitled to the following information:
The Service is provided by EarthLink, LLC, 1439 Peachtree Street NE, Atlanta, Georgia 30309.
Charges may vary depending on the type of Service.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834 or by telephone at 1-800-952-5210.
20.12 Survival
This Section 20 will survive the termination of your Service with EarthLink.
21. REVISIONS TO THIS AGREEMENT
EarthLink may revise, amend, or modify this Agreement at any time by posting the revised version of this Agreement on the EarthLink Web Site located at www.earthlink.net. The revised version will be effective on the date that it is posted as stated at the end of the revised version. The material changes to this Agreement will be noted in endnotes of the revised version. Your continued use of the Service after the date of the revised version constitutes your acceptance of all of the revisions. If you do not agree to the revisions in the revised version, your sole and exclusive remedy will be to terminate your account and use of the Service.
22. MISCELLANEOUS
You may not assign your rights or delegate any of your duties under this Agreement without the prior written consent of EarthLink, and any attempted assignment or delegation without such consent will be void. If one or more provisions of this Agreement are held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration provision in Section 20; if that prohibition is found to be unenforceable, the entire DISPUTE RESOLUTION BY BINDING ARBITRATION provision (but only the DISPUTE RESOLUTION BY BINDING ARBITRATION provision) will be null and void and the dispute will be heard by a court. EarthLink may amend or replace such unenforceable provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of EarthLink as reflected in the original provision. Nothing in this Agreement or in the understanding of the parties confers upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. EarthLink may subcontract any work, obligations or other performance required of EarthLink under this Agreement without your consent. EarthLink will not be liable for delays, damages or failures in performance because of causes beyond its reasonable control, including, but not limited to, acts of a government in its sovereign capacity, acts of war, terrorism, acts of a public enemy, fires, earthquakes, acts of God, labor disputes, strikes, work slow-downs or other labor-related activity.
Effective Date: September 30, 2017
The following endnote summarizes the material revision made in this September 30, 2017 version of this Agreement compared to the September 15, 2016 version of this Agreement.
1 EarthLink address changes throughout the Agreement.
EARTHLINK EMAIL BETA PROGRAM SERVICE AGREEMENT
READ THIS AGREEMENT BEFORE PARTICIPATING IN THE EARTHLINK EMAIL BETA PROGRAM.
This Email Beta Program Service Agreement (“Agreement”) is between EarthLink, LLC and its related entities (“EarthLink”) and you as a participant in the EarthLink Email Beta Program and governs your participation in the EarthLink Email Beta Program (“Beta Program”). This Agreement consists of the terms and conditions below.
By signing up or using the Beta Program, you agree to be bound by this Agreement and to use the Beta Program in compliance with the terms of this Agreement and all applicable federal, state and local laws, rules and regulations.
1. THE BETA PROGRAM
The Beta Program is a trial environment for EarthLink to test new code for email features and functionalities. EarthLink provides EarthLink subscribers who participate in the Beta Program with 1 gigabyte of email storage in consideration for their participation in the Beta Program. The standard EarthLink email accounts have 100 megabytes. Participation in the Beta Program is by invitation only. You must be at least 18 years of age to participate in the Beta Program.
The effective date of this Agreement commences when you agree to participate in the Beta Program and continues until the termination of your participation in the Beta Program. During the period that you participate in the Beta Program, you will continue to pay your monthly fees for your EarthLink access service to EarthLink.
Sections 4, 5, 6, 7, 8 and 10 will survive the termination of this Agreement.
2. FEEDBACK
You can provide comments and suggestions about the Beta Program by clicking on the “Feedback” link in your email inbox. EarthLink will own the rights to any information that you give us as part of the Beta Program and some of the information that you provide to EarthLink may become public information.
3. CANCELLATION OF THE BETA PROGRAM
You may cancel your participation in the Beta Program through http://www.earthlink.net/offers/mailtrial/unjoin . Please note that you will not be allowed to cancel the Beta Program until you modify your email account so that it does not take advantage of the Beta Program’s expanded email storage. For example, because the Beta Program email account has a 1 gigabyte email box and a standard account has a 100 megabyte email box, you cannot cancel your participation in the Beta Program until you trim your email box back down to 100 megabytes or less.
EarthLink may modify, suspend or discontinue or cancel your participation in the Beta Program at any time for any reason. If EarthLink cancels your participation in the Beta Program, a termination notice will be sent to you via (i) email to the primary EarthLink email address selected by or assigned to you during the registration process (“Contact Email Address”) or (ii) U.S. Mail to the mailing address on file.
4. GENERAL DISCLAIMERS AND WARRANTIES
THE BETA PROGRAM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EARTHLINK AND ITS SUPPLIERS AND VENDORS DO NOT WARRANT THAT (I) THE BETA PROGRAM WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. EARTHLINK AND ITS SUPPLIERS AND VENDORS MAKE NO EXPRESS WARRANTIES AND WAIVE ALL IMPLIED WARRANTIES REGARDING THE BETA PROGRAM INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EARTHLINK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND VENDORS (COLLECTIVELY “EARTHLINK PARTIES”) WILL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS, IN CONNECTION WITH THE BETA PROGRAM RESULTING FROM: (I) AVAILABILITY OR QUALITY, REGARDLESS OF THE CAUSE(S) OF THE PROBLEMS; (II) OTHER USERS ACCESSING YOUR BETA PROGRAM; (III) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE), DELETION OF FILES, ERRORS, OR DEFECTS; (IV) DELAYS OR ERRORS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE; (V) SECURITY BREACHES; (VI) EAVESDROPPING; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (VII) YOUR RELIANCE ON OR USE OF THE BETA PROGRAM; (VIII) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE), DELETION OF FILES, ERRORS, OR DEFECTS REGARDLESS OF WHETHER YOUR DATA IS MAINTAINED ON THE EARTHLINK SERVERS OR YOUR DEVICE(S); (IX) DELAYS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE OF THE BETA PROGRAM; (X) USE OF THE BETA PROGRAM BY YOU OR A THIRD PARTY THAT INFRINGES A THIRD PARTY’S COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET , CONFIDENTIALITY, PRIVACY, OTHER INTELLECTUAL PROPERTY, PROPRIETARY, OR CONTRACTUAL RIGHTS; OR (XI) ACCURACY, COMPLETENESS, AND USEFULNESS OF ANY THIRD PARTY PRODUCTS, SERVICES OR INFORMATION OR THE MERCHANTABILITY OF SUCH ITEMS (INCLUDING ANY SUCH ITEMS OFFERED THROUGH CO-BRANDED WEB SITES LINKED FROM THE EARTHLINK WEB SITES).
THE FOREGOING LIMITATIONS APPLY TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF THE EARTHLINK PARTIES WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO THE CAUSE OF ACTION AGAINST ANY EARTHLINK PARTY IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE. YOUR EXCLUSIVE AND ONLY REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
THE CUMULATIVE LIABILITY OF ANY EARTHLINK PARTY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE BETA PROGRAM WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID FOR YOUR EARTHLINK ACCESS SERVICE DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM.
YOU MAY HAVE OTHER RIGHTS UNDER CERTAIN LAWS IN CERTAIN STATES WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.
5. INDEMNIFICATION
You agree to defend, indemnify and hold the EarthLink Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages including, but not limited to, direct, indirect and consequential damages, attorney’s fees and expenses that an EarthLink Party may sustain or incur by reason of your use or misuse of the Beta Program by the use or misuse of the Beta Program by anyone else through your account including, but not limited to, use of misuse of the Beta Program (i) in violation of applicable laws or regulations or the terms of this Agreement or any other EarthLink agreement or policy; (ii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with such use or misuse; or (iii) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible property (including data).
6. ELECTRONIC COMMUNICATIONS AND PHONE COMMUNICATIONS
6.1 Electronic Communications
You consent to receive notices, documents, disclosures and other communications from EarthLink about your account or the Service (“Communications”) in an electronic format to your Contact Email Address and agree that the Communications provided to you by EarthLink electronically will be deemed a writing. If you do not want to receive Communications from EarthLink electronically or if you withdraw your consent to receive such Communications electronically, then you must stop using the Service. The withdrawal of your consent will not affect the legal validity and enforceability of any electronic Communications provided or business transacted between EarthLink and you prior to the time you withdraw your consent.
6.2 Phone Calling and Texting
In addition, you hereby agree that your use of the Service constitutes your express written consent to receive automated and manually dialed calls, text messages and pre-recorded messages at the phone number(s) that you provide EarthLink in connection with your subscription to or use of the Service. Consent to receiving autodialed calls, text messages, and/or pre-recorded messages from EarthLink is not required to purchase products or services from EarthLink.
6.3 Changing Your Contact Preferences
You may exercise your option not to receive any marketing communications from and/or automated or manually dialed calls, text messages and pre-recorded messages from EarthLink by going directly to https://myaccount.earthlink.net/cam/contactinfo.jsp or calling EarthLink customer service. You also may text STOP in response to any text message from EarthLink to stop receiving text messages from EarthLink.
7. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
8. DISPUTE RESOLUTION BY BINDING ARBITRATION (INCLUDING IMPORTANT INFORMATION FOR CALIFORNIA RESIDENTS)
8.1 Summary
Most subscriber concerns can be resolved by calling 1-800-EARTHLINK. If EarthLink is unable to resolve your complaint to your satisfaction (or if EarthLink has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed $75,000, EarthLink will pay all costs of the arbitration. Moreover, in arbitration you are entitled to recover attorneys’ fees from EarthLink to at least the same extent as you would be in court.
In addition, under certain circumstances (as explained below), EarthLink will pay you more than the amount of the arbitrator’s award and will pay your attorney (if any) his or her reasonable attorneys’ fees if the arbitrator awards you an amount that is greater than what EarthLink has offered you to settle the dispute.
8.2 Agreement to Arbitrate
EarthLink and you agree to resolve all disputes and claims between us through binding arbitration by the American Arbitration Association (“AAA”). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- Claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
- Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- Claims that may arise after the termination of this Agreement.
References to “EarthLink,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Beta Program under this Agreement or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court rather than by arbitration if the claim qualifies for small claims court in a location where jurisdiction and venue over EarthLink and you is proper. This agreement to arbitrate does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.
You agree that, by entering into this Agreement, you and EarthLink are each waiving the right to a trial by jury or to participate in a class action . This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this provision.
8.3 Informal Dispute Resolution Prior to Arbitration
8.3(1) Notice of Dispute
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). A Notice to EarthLink should be addressed to: EarthLink, LLC, 4001 Rodney Parham Rd., Little Rock, AR 72212, Mailstop B1F03-53A, Attn: Legal Department (Arbitration) (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). A Notice to you will be addressed to the billing address that EarthLink has on file for you.
8.3(2) Settlement Proposals
The amount of any settlement offer made by EarthLink or you will not be disclosed to the arbitrator in any arbitration between us until after the arbitrator determines the amount, if any, to which you or EarthLink is entitled.
8.3(3) Failure to Reach Resolution
If EarthLink and you do not reach an agreement to resolve the claim within 45 days after the Notice is received, you or EarthLink may commence an arbitration proceeding.
8.4 Commencement of Arbitration
You may initiate an arbitration by filing a claim form with the AAA and sending a copy of the claim form to EarthLink at the Notice Address. You can access a claim form and directions for filing at the website for AAA, https://www.adr.org. If EarthLink receives notice at the Notice Address that you have commenced arbitration and paid the filing fee to the AAA, it will promptly reimburse you for your payment of the filing fee by check to your address or by credit to your account unless your claim is for greater than $75,000. (The filing fee currently is $200 for claims under $10,000 but is subject to change by the arbitration provider. If you are unable to pay this fee, EarthLink will pay it directly upon receiving a written request from you to the Notice Address.)
8.5 Arbitration Procedures
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the AAA, as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at https://www.adr.org or by calling the AAA at 1-800-778-7879. One arbitrator, who is selected under the AAA Rules, will conduct the arbitration. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for a court to decide. Unless EarthLink and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. The right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
8.6 Appeal
If an award issued by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the AAA by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the AAA. The AAA will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel will be final and binding, except for any appellate right which exists under the FAA. If an award issued by the arbitrator does not exceed $75,000, any appeal rights from the award will be governed by the FAA.
8.7 Arbitration Fees
Except as otherwise provided for herein, EarthLink will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse EarthLink for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
8.8 Awards and Attorney’s Fees
If the arbitrator issues you an award that is greater than the value of EarthLink’s last written settlement offer made before an arbitrator was selected, or if the arbitrator issues you an award and EarthLink made no settlement offer, then EarthLink will pay you the amount of the awardor $2,500 (“Alternative Payment”), whichever is greater, and pay your attorney, if any, the amount of attorney’s fees incurred, and reimburse any expenses (including expert witness fees and costs) that your attorney, if any, reasonably accrues and documents with specificity for investigating, preparing, and pursuing your claim in arbitration (“Attorney Fee Award”).
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the Alternative Payment and the Attorney Fee Award at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
The right to attorneys’ fees and expenses discussed in this Section 8.8 supplements any right to attorneys’ fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys’ fees or expenses. Although under some laws EarthLink may have the right to an award of attorney’s fees and expenses if it prevails in an arbitration, EarthLink agrees that it will not seek such an award.
8.9 Waiver of Class Actions; Limits of Scope of Arbitrator’s Authority
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND EARTHLINK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and EarthLink agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision will be null and void and all disputes will be heard by a court.
8.10 Future Changes to Agreement to Arbitrate
Notwithstanding any provision in this Agreement to the contrary, if EarthLink makes any future change to this arbitration provision (other than a change to the Notice Address) during the term of your subscription with EarthLink, you may reject any such change by sending us written notice to the Notice Address postmarked within 30 days of the date of the change. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language in this Section 8 of this Version dated September 15, 2016.
8.11 Notice to California Residents
California residents are entitled to the following information:
The Beta Program is provided by EarthLink, LLC, 1439 Peachtree Street NE, Atlanta, Georgia 303091.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834 or by telephone at 1-800-952-5210.
8.12 Survival
This Section 8 will survive the termination of your participation in the Beta Program.
9. REVISIONS TO THIS AGREEMENT
EarthLink may revise, amend, or modify this Agreement at any time by posting the revised version of this Agreement on the EarthLink Web Site located at www.earthlink.net . The revised version will be effective on the date that it is posted as stated at the end of the revised version. The material changes to this Agreement will be noted in endnotes of the revised version. Your continued use of the Beta Program after the date of the revised version constitutes your acceptance of all of the revisions. If you do not agree to the revisions in the revised version, your sole and exclusive remedy will be to terminate your account and use of the Beta Program.
10. MISCELLANEOUS
You may not assign your rights or delegate any of your duties under this Agreement without the prior written consent of EarthLink, and any attempted assignment or delegation without such consent will be void. If one or more provisions of this Agreement are held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration provision in Section 8; if that prohibition is found to be unenforceable, the entire DISPUTE RESOLUTION BY BINDING ARBITRATION provision (but only the DISPUTE RESOLUTION BY BINDING ARBITRATION provision) will be null and void and the dispute will be heard by a court. EarthLink may amend or replace such unenforceable provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of EarthLink as reflected in the original provision. Nothing in this Agreement or in the understanding of the parties confers upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. EarthLink may subcontract any work, obligations or other performance required of EarthLink under this Agreement without your consent. EarthLink will not be liable for delays, damages or failures in performance because of causes beyond its reasonable control, including, but not limited to, acts of a government in its sovereign capacity, acts of war, terrorism, acts of a public enemy, fires, earthquakes, acts of God, labor disputes, strikes, work slow-downs or other labor-related activity.
Effective Date: September 30, 2017
The following endnote summarizes the material revision made in this September 30, 2017 version of this Agreement compared to the September 15, 2016 version of this Agreement.
1 EarthLink address changes throughout the Agreement.
READ THIS HIGH-SPEED INTERNET SERVICE AGREEMENT CAREFULLY BEFORE USING THE EARTHLINK RESIDENTIAL DSL INTERNET SERVICES, THE EARTHLINK FREESTANDING RESIDENTIAL DSL INTERNET SERVICES, THE EARTHLINK HYPERLINK HIGH SPEED INTERNET SERVICES OR THE PEOPLEPC RESIDENTIAL DSL INTERNET SERVICES.
THIS HIGH-SPEED INTERNET AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1 . AGREEMENT
This High-Speed Internet Service Agreement (“Agreement”) is between EarthLink, LLC and its related entities (“EarthLink”) and you and applies to your use of the EarthLink Residential DSL Internet service, the EarthLink Freestanding Residential DSL Internet service, the EarthLink HyperLink High Speed Internet service, and the PeoplePC Residential DSL Internet services, and the EarthLink and PeoplePC software and tools including those described at http://www.earthlink.net/software/ (collectively referred to as “Service”) except for EarthLink Home Networking and EarthLink Online Backup which have their own Service Agreements.
This Agreement consists of the terms and conditions below, the specific terms of your billing plan for the Service(s) to which you subscribe.
By establishing an account for the Service or using the Service, you agree to be bound by this Agreement and to use the Service in compliance with the terms of this Agreement and all applicable federal, state and local laws, rules and regulations.
2. TERM OF THIS AGREEMENT
The effective date of this Agreement is the date on which you subscribed to the Service. This Agreement continues until the date of termination of your Service. Sections 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20 and 22 of this Agreement will survive the termination of this Agreement.
3. SUBSCRIPTION INFORMATION
To order and receive the Service, you acknowledge that you are 18 years of age or older, and you have legal authority to enter into this Agreement.
The EarthLink Residential DSL Internet service (“EarthLink DSL Service”), the EarthLink Freestanding Residential DSL Internet service (“Freestanding Service) and the PeoplePC Residential DSL Internet service (“PeoplePC DSL Service”) require a modem to access the Internet. The EarthLink HyperLink High Speed Internet service (“HyperLink Service”) requires special hyperlink equipment that EarthLink will arrange to be installed in your home (“HyperLink Equipment”). You must provide EarthLink with (i) a valid credit or debit card or other EarthLink approved payment method for the Service; (ii) your billing address; and (iii) your shipping address, if different from your billing address, if applicable. If you subscribe to the EarthLink HyperLink Service, you must provide the address where you will use the Service (“Service Address”) if different from your billing address so that EarthLink can schedule the installation of the HyperLink Equipment at your Service Address.
You represent that all information you provided during the subscription process is accurate and complete and that you will update such information with EarthLink should any of it change.
EarthLink reserves the right to verify the accuracy of the information you submit in connection with your subscription to the Service and you consent to such verification. EarthLink also reserves the right to validate the payment method information you provide at subscription and account updates, including attempting up to a $1.00 authorization to your credit or debit card which is not actually billed. To understand how EarthLink handles and protects your personal information, please see the EarthLink Privacy Policy.
The Service must be available to your location. EarthLink may accept or reject any potential subscriber to the Service in its sole discretion. EarthLink will send you a welcome email as written confirmation of your order. Even if EarthLink has accepted your order, EarthLink cannot guarantee that the Service can be provisioned to your address.
4. USERNAMES AND PASSWORDS, SECURITY
Upon registration, you will receive a username, a password, and other account information. You are responsible for (i) maintaining the confidentiality of both your username and password, and (ii) the use of your Service by any person who uses your username and password to access the Service, whether or not you specifically authorize such person’s use. You must notify EarthLink immediately upon discovering any unauthorized use of your Service and other breaches of security. Usernames, passwords, email addresses and IP addresses are EarthLink’s property and EarthLink may alter or replace them at any time.
You are solely responsible for the device (such as a desktop, laptop, notebook, tablet or smart phone) (“Device”) and any software on your Device necessary to use the Service, including responsibility for (i) maintaining the security of the Device and data including protection of your username and password, (ii) the encryption of data, (iii) back-up of your Device and data, and (iv) any WI-FI network you use in connection with the Service. EarthLink recommends that you use anti-virus, anti-spyware and firewall software and that you update this software as recommended by the applicable provider.
5. GENERAL DESCRIPTION OF AND RESTRICTIONS ON THE SERVICE
The Service speed may vary depending on location, line quality, inside wiring, Internet traffic, and other factors beyond the control of EarthLink. EarthLink does not guarantee upload or download speeds. Some line stabilization may be necessary for the Service. Stabilization could include the lowering of provisioned line speed. Should this occur, EarthLink will NOT be able to increase the line speed once the connection is stabilized. Some of the Services may only work using certain telephone carriers or non-PBX (including rollover/party line) phone systems. Some of the Services may require the use of specific hardware and/or software and may be limited by specific geographic location.
The EarthLink DSL Service and the PeoplePC DSL Service (collectively, “DSL Service”) require telephone or cable service with an active telephone number in your house in order to work. You are responsible for charges for such telephone or cable service in connection with these Service. Please note that changing such telephone carriers or cable providers may result in substantial interruption of the DSL Service which may result in fees associated with cancellation and setting up a new account. T he Freestanding Service and the HyperLink Service only require a telephone line to your house. The Freestanding Service will not work on an active telephone line. The HyperLink Service can work with an active or inactive telephone line to your house.
EarthLink reserves the right to change, with or without notice to you, of (i) any of the features, content or applications of the Service or (ii) any of the features of the DSL modem provided by EarthLink (“EarthLink DSL Modem”), the modem provided by AT&T (“Freestanding DSL Modem Provided by AT&T”) for certain Freestanding Service subscribers as described in Sections 10 and 11 or the HyperLink Equipment as described in Section 12 (collectively, referred to as the “Equipment”).
Because of the complex nature of Internet service, availability, and the underlying infrastructure, it may not be possible to provide the Service to everyone. In its sole discretion, EarthLink may cancel the installation process and refund any money that you have paid. EarthLink will notify you of its intent to cancel as soon as reasonably possible.
The Services include a dial-up connection to the Internet for up to 20 hours per monthly billing cycle. In calculating the 20 hours of usage, the dial-up usage of each Device logged into your account to access the Internet is counted. For example, if you have two Devices logged in from 10:00 a.m. to 11:00 a.m., your total usage for that time period will be 2 hours of usage. If your dial-up connection usage exceeds 20 hours per month, you will be charged an additional $1.00 per hour (up to a maximum of $21.95 per month), pro-rated to the minute, through the end of the monthly billing cycle.
6. LOCAL TELEPHONE, TOLL AND LONG DISTANCE CHARGES
EarthLink will provide you with a dial-up access number to access the Service (“POP Number”). When using the Service, you are solely responsible for determining if use of a particular POP Number will cause you to incur long-distance, toll, or any other charges, EarthLink does not guarantee that any POP Number that EarthLink provides will be a local call from your location. EarthLink is not responsible for any long-distance, toll, or other charges you incur.
EarthLink may change its POP numbers at any time. EarthLink reserves the right to direct you to use certain POP Numbers to access the Service or to restrict use of specific POP Numbers.
7. BILLING PLAN FEATURES (INCLUDING EMAIL STORAGE AND WEBSPACE)
The billing plans for some of the Services may vary by geographic location, phone carrier or cable provider. In the event that you change to a different Service, prior to changing Service consult with an EarthLink representative regarding how such change will affect your billing plan.
If you signed up for a pre-paid billing plan, you will receive the applicable Service for the duration of your subscription term without further monthly Service fees. Depending on the terms of your pre-paid billing plan, your subscription may convert to either a monthly or a fixed period subscription at the end of the initial fixed pre-paid subscription term. Pricing will be subject to the rates in effect at that time for that Service. If you cancel your subscription before the end of the fixed term or if EarthLink terminates your subscription before the end of the fixed term for violation of this Agreement or other applicable EarthLink agreements or policies, EarthLink will not refund, in whole or in part, the amount you have paid for your subscription.
The email storage limits for your billing plan are posted on the EarthLink website located at www.earthlink.net or the PeoplePC website located at www.peoplepc.com. If your mailbox is approaching the storage limit for your Service, it will be noted visually on your web mail. EarthLink also will send email notices to this mailbox stating you are approaching your email storage limit. When your mailbox exceeds the allotted email storage space, you will receive a second email warning from EarthLink that your email storage is over quota and then EarthLink will stop transmitting email messages to your inbox. Any incoming emails will be bounced with an error message to the sender stating that your mailbox is full. After you delete some email messages to free up some space, new messages will be accepted again. You may purchase additional storage up to a fixed limit as described at https://myaccount.earthlink.net or https://myacount.peoplepc.com.
Certain billing plans may offer the ability to create your personal webspace. The maximum webspace available for such use is 10MB per account. Limitations may include, but are not limited to, certain software and certain operating systems. In the event that one of your personal webspace exceeds 10 MB, no additional information can be uploaded to it. If the traffic on one of your personal webspace exceeds 1 GB of webspace in a calendar month, such personal webspace will be shut down until the next calendar month. If you want more space or bandwidth for your personal webspace, you can subscribe to the EarthLink Web Hosting Service.
Changes to your billing plan in months two through twelve may result in an early termination fee. Such changes may include (i) cancellation of your Service, (ii) downgrading or changing your Service to another EarthLink service or PeoplePC service, or (iii) if you move the Service to a new location, change your local telephone company within the same location or discontinue your local telephone service within the same location. Please check your billing plan details for more information.
8. BILLING AND PAYMENT POLICIES
You agree to pay the recurring monthly fee in your billing plan due in advance of the month incurred. In addition, your bill will include (i) taxes, surcharges, and fees required by any applicable government entity; (ii) shipping and handling fees, if applicable; (iii) the Installation Charge for the HyperLink Equipment, if applicable, and (iv) the method of payment fees, if applicable. All payments must be made in US dollars.
You will be able to use the Service for any consecutive monthly period that has been paid in advance as described in the acceptance materials that you received as part of you sales transaction or on your order confirmation. For example, if your billing cycle begins on the sixth day of the month, then your payment due date (i.e. the date that the amount of your full monthly Service fee, including any and all applicable taxes, must be received by EarthLink) will be on the fifth day of the next month and of each month thereafter.
The billing start date for the DSL Service and the Freestanding Service will begin on the date that you first use it (“DSL Billing Start Date”). The billing start date for the HyperLink Service will begin on the date that the installation of the HyperLink Equipment has been completed.
You must provide accurate billing information including legal name, address, telephone number, and credit or debit card number and expiration date and report all changes to this information promptly to EarthLink.
Charges may be billed on or after your billing cycle date to your method of payment on file each month for the Service including any additional charges incurred (e.g. usage, taxes and fees). EarthLink is not responsible for any fees resulting from charges billed by EarthLink including, but not limited to, overdrawn accounts or exceeding credit card limits.
If you provided EarthLink with a valid credit or debit card, you agree to maintain valid and current credit or debit card information with EarthLink at all times. If you authorized EarthLink to automatically deduct (” ACH Debit”) your monthly Service fees and any other charges, fees, or taxes billed to you, from your checking or savings bank account, then you hereby reaffirm your agreement to the Recurring Automatic Bank Draft Authorization Agreement. You acknowledge and agree that you authorize EarthLink and that EarthLink does not need to obtain any additional authorization from you for any recurring payments or automatic billing options. In addition, if your credit or debit card company provides updated credit or debit card information to EarthLink, you acknowledge that EarthLink does not need to obtain authorization from you for EarthLink to use such information to update your credit or debit card.
If payment by check has been accepted by EarthLink, then payments by check must be received by EarthLink by the due date listed in your monthly paper invoice. EarthLink will charge a processing fee each time you pay your monthly billing invoice . When you pay your fees by check, you also authorize EarthLink to electronically process your payment. If your check is processed electronically, your checking account may be debited on the same day that EarthLink receives your check and neither your check nor a copy of your check will be included with your checking account statement.
EarthLink will charge a fee for returned checks or returned bank drafts from your financial institution.
EarthLink will email an e-invoice to your primary EarthLink or PeoplePC email address selected by or assigned to you during the subscription process (“Contact Email Address”) each month or if you designated a different billing email address, EarthLink will email the e-invoice to such billing email address each month. You may request through https://myaccount.earthlink.net/cam/billing_info.jsp or by calling EarthLink Customer Service that EarthLink mail a paper invoice to your billing mailing address each month. EarthLink will charge your account a fee for each paper invoice. If you elect to have EarthLink mail you your monthly invoice, you may request that EarthLink also email your monthly invoice your Contact Email Address or if you designated a different billing email address , to such billing email address. There is no charge for e-invoices.
Your account will be automatically inactivated if you put a stop payment on your account with your financial institution in connection with the payment of your monthly bill.
All charges are considered valid unless disputed in writing within 30 days of the billing date and mailed to:
EarthLink, LLC
Customer Service
1170 Peachtree Street, Suite 900
Atlanta, Georgia 30309
Adjustments will not be made for charges that are disputed more than 30 days after the billing date.
EarthLink reserves the right (i) to change the fees associated with your Service and institute new fees (e.g. equipment fees) upon email notice at least 30 days prior to the effective date of such new fee to your Contact Email Address and (ii) to change the fees associated with your account upon email notice at least 30 days prior to the effective date of such new fee to your Contact Email Address or your billing email address if different from your Contact Email address.
EarthLink may use various means to recover monies due. If EarthLink retains a collection agency or takes legal action to collect monies due on your account, you agree to pay all costs and expenses of collection incurred by EarthLink, which may include reasonable attorney’s fees and collection agency fees which may be based on a percentage of the amount owed, up to a maximum of 25%, where permitted by applicable law.
9. CANCELLATION AND TERMINATION OF YOUR SERVICE
You may cancel (i) the EarthLink DSL Service, the Freestanding Service, and the HyperLink Service (collectively, “EarthLink Services”) and (ii) the PeoplePC DSL Service only as follows:
Telephone Cancellation for the EarthLink Services: toll free number at 1-888-327-8454
Telephone Cancellation for the PeoplePC DSL Service: toll free number at 1-866-772-6277
Fax Cancellation for both EarthLink Services and PeoplePC DSL Service: Please include your account number and current telephone number and fax to 404-795-1034.
Mail Cancellation for both EarthLink Services and PeoplePC DSL Service: Send registered or certified mail, return receipt requested to:
EarthLink, LLC
Cancel (write Name of Service)
1170 Peachtree Street, Suite 900
Atlanta, Georgia 30309
*Include your account number and current telephone number.
EarthLink does NOT accept cancellations by email.
EarthLink will issue a confirmation number to you by email as proof of cancellation of your Service. Accounts are set to close at the end of the current billing period. EarthLink does not grant refunds or credits for any prior use including partial use during the last month prior to cancellation. If you cancel by one of the prescribed methods listed above and are mistakenly billed for your Service after the end of the billing period, EarthLink will refund any erroneous charges upon proof of such cancellation.
EarthLink may terminate your account for the Service at any time for any reason, including, without limitation, if (i) your account is delinquent because charges on your method of payment were refused for any reason, (ii) you failed to make payment when due or you did not provide EarthLink with your credit or debit card’s expiration date or expiration date of any other method of payment before the existing expiration date; (iii) EarthLink, in its sole discretion, believes you have breached this Agreement or any other EarthLink agreements or policies; or (iv) your use of the Service is prohibited by law . A termination notice will be sent to you via (i) your Contact Email Address or (ii) U.S. Mail to the billing address for your EarthLink account. If your account for the Service is cancelled by EarthLink due to non-payment and then it is reactivated at a later date, EarthLink will bill you an account reactivation fee.
If your Service is canceled by you or by EarthLink prior to the end of the fixed period in your billing plan and your billing plan includes an early termination fee, EarthLink will charge the early termination fee set forth in your billing plan to your account. In certain situations, EarthLink may waive the early termination fee, at its discretion, if (i) EarthLink no longer provides the Service to your current location, (ii) you live in an area currently deemed a weather or war disaster area, or (iii) you were deployed for active military service. Your Service will close at the end of the current billing period in which notice of cancellation is received or in which EarthLink canceled your Service.
Sections 10, 11 and 12 set forth the specific cancellation policies for the EarthLink DSL Modem, Freestanding DSL Modem Provided by AT&T and the HyperLink Equipment. EarthLink will credit any refunds from cancellation during the remorse periods to your account on file with EarthLink. In the event that your EarthLink account is inactive, EarthLink will credit the refund to your credit card on file with EarthLink.
On the inactivation date of your Service, without further notice to you, your Service will be terminated and you will no longer have Internet access which includes access to your email, files or other information on EarthLink’s servers.
If you move your EarthLink DSL Service or PeoplePC DSL Service or if you change your local telephone company and EarthLink can provide these Service at the new location or on the new telephone line, EarthLink will bill you a re-provisioning fee because this change requires a new installation. If EarthLink cannot provide the EarthLink DSL Service of the PeoplePC DSL Service in your new location or on your new telephone line during the term commitment of your EarthLink DSL Service or PeoplePC DSL Service, you will be charged the early termination fee.
10. SPECIFIC INSTALLATION, WARRANTY AND CANCELLATION TERMS FOR THE EARTHLINK DSL MODEM
EarthLink encourages subscribers to the DSL Service to order the EarthLink DSL Modem because although other modems may be used with the DSL Service to access the Internet, EarthLink only guarantees technical support of the EarthLink DSL Modem.
Customers who subscribe to the Freestanding Service on or after February 11, 2016 and whose Service Address is located in one of the following states in the former SBC Communications region can only use their Freestanding Service with the Freestanding DSL Modem provided by AT&T (“Freestanding DSL Modem Provided by AT&T”): Arkansas, California, Illinois, Indiana, Kansas, Michigan, Missouri, Nevada, Ohio, Oklahoma, Texas or Wisconsin (collectively, ” Former SBC Coverage Area” .) EarthLink will handle the ordering process, billing, technical support, and customer service for the Freestanding DSL Modem Provided by AT&T. Section 11 sets forth the terms associated with the Freestanding DSL Modem Provided by AT&T.
The Freestanding Service subscribers who subscribed to the Freestanding Service prior to February 11, 2016 may continue to use the EarthLink DSL Modem to access the Internet. Customers who subscribe to the Freestanding Service on or after February 11, 2016 and whose Service Address is located in states outside of the Former SBC Coverage Area also may use the EarthLink DSL Modem.
Upon receiving the order for the EarthLink DSL Modem, EarthLink will ship the EarthLink DSL Modem self-installation kit (“EarthLink DSL Modem Self-Installation Kit”) to you. The EarthLink DSL Modem Self-Installation Kit will include an EarthLink DSL Modem, a power supply, an Ethernet cable, a telephone cord, phone jack filters, an installation guide and a packing slip (“EarthLink DSL Modem Install Guide”). The EarthLink DSL Modem will be either a new or a fully inspected and tested refurbished unit. T he shipment date (“Original Shipment Date”) of the EarthLink DSL Modem will be stated on the packing slip.
If you have any problems with the installation of the EarthLink DSL Modem, you can contact EarthLink technical support for assistance. EarthLink may suggest an outside vendor to help install the EarthLink DSL Modem. You will be responsible for all costs and scheduling associated with the installation of the EarthLink DSL Modem. You are also responsible for all inside wiring repair necessary for such installation.
The EarthLink DSL Modem may operate with other DSL Internet access services.
10.2 Warranty for the EarthLink DSL Modem
EarthLink provides a warranty for the EarthLink DSL Modem against defects in material and workmanship under ordinary consumer use. The EarthLink DSL Modem warranty does not cover defects resulting from (i) your installation of the EarthLink DSL Modem contrary to the setup instructions in the EarthLink DSL Modem Install Guide or (ii) repair or modification of the EarthLink DSL Modem by you or any party other than EarthLink. This warranty applies to the original subscriber and is not transferable. This warranty gives you specific legal rights, and you may also have other rights that vary from state to state.
The warranty for an EarthLink DSL Modem shipped on or after February 11, 2016 (i) under the Monthly Equipment Fee Plan c ontinues for as long as your account for the Monthly Equipment Fee Plan is in good standing and (ii) under the One-Time Equipment Charge Plan continues for as long as your account for your DSL Service is in good standing.1 The warranty procedures for such EarthLink DSL Modems include the following policies:
- You must contact EarthLink Technical Support via telephone or chat support about your defective EarthLink DSL Modem.
- If EarthLink Technical Support confirms that your EarthLink DSL Modem is defective, EarthLink, upon your request, will ship to you a replacement EarthLink DSL Modem.
- EarthLink will not charge shipping or handling fees for shipping the replacement modem except if you upgrade the shipping method to overnight delivery.
- The package with the replacement modem will include a packing slip with its shipment date and a prepaid shipping label for you to use to ship your defective EarthLink DSL Modem back to EarthLink. In order for the return to be processed correctly, you must use the EarthLink provided prepaid shipping label. If your defective EarthLink DSL Modem is not shipped back to EarthLink with the prepaid shipping label to be received by EarthLink within 30 days from the shipment date of the replacement modem, EarthLink will charge a non-returned equipment fee (“Non-Returned Equipment Fee”) to your account. This process is referred to below as the “EarthLink Warranty Shipping Policy”.
Please Note:The warranty for an EarthLink DSL Modem shipped prior to February 11, 2016 is 365 days (“One Year Warranty Period”) from the Original Shipment Date (as defined above) and includes the following policies:
- If EarthLink Technical Support confirms during the One Year Warranty Period that your EarthLink DSL Modem is defective, EarthLink will ship to you a replacement EarthLink DSL Modem and you will ship the defective EarthLink DSL Modem to EarthLink in accordance with the EarthLink Warranty Shipping Policy.
- If EarthLink Technical Support confirms after the One Year Warranty Period that your EarthLink DSL Modem is defective, upon your request, EarthLink will send you and charge you for a replacement EarthLink DSL Modem plus shipping and handling fees or you can opt to subscribe to the Monthly Equipment Fee Plan. You will not need to ship back the defective EarthLink DSL Modem.
The replacement EarthLink DSL Modem will be either a new or a fully inspected and tested refurbished unit.
10.3 Specific Terms regarding Cancellation of the DSL Service
The cancellation policy of the Monthly Equipment Fee Plan for the DSL Service requires you to ship your EarthLink DSL Modem to EarthLink. EarthLink will mail you a package with a letter with instructions for shipping the DSL Modem to EarthLink and a prepaid shipping label for you to use to ship the EarthLink DSL Modem to be received by EarthLink within 30 days of the date listed in the letter. In order for the return of the EarthLink DSL Modem to be processed correctly, you will need to use the EarthLink provided prepaid shipping label. If you do not ship the EarthLink DSL Modem to EarthLink in accordance with these procedures within the required time period, EarthLink will charge a Non-Returned Equipment Fee to your account. This process is known below as the “EarthLink Cancellation Shipping Policy”.
Refunds resulting from cancellations will be credited to your EarthLink account on file if it is still active or to your method of payment on file if your account is not active.
In addition, the Monthly Equipment Fee Plan’s cancellation policies include the following:
- If you cancel your Service and the Monthly Equipment Fee Plan within 30 days of the Original Shipment Date (“DSL Remorse Period”),EarthLink will refund the monthly recurring fee for the Service and the Monthly Equipment Fee. If you cancel before the EarthLink DSL Modem was shipped, EarthLink also will refund the shipping and handling fees.
- If you cancel your Service and the Monthly Equipment Fee Plan after the DSL Remorse Period but during the term of your Service (“Term Commitment”), there will be no refunds and EarthLink will charge you the applicable early termination fee.
- If you cancel your Service and the Monthly Equipment Fee Plan after the DSL Remorse Period and after the Term Commitment, there will be no refunds and no early termination fee.
- If you cancel only the Monthly Equipment Fee Plan (and not the DSL Service) during the DSL Remorse Period, EarthLink will refund the first month’s Monthly Equipment Fee.
If you cancel only your DSL Service, your Monthly Equipment Fee Plan will automatically be cancelled.
The One-Time Equipment Charge Plan’s cancellation policies include the following:
- If you cancel your Service and the One-Time Equipment Charge Plan during the DSL Remorse Period, EarthLink will credit to your account the monthly recurring fee for the DSL Service and the One-Time Equipment Charge that you paid. You must ship the EarthLink DSL Modem to EarthLink in accordance with the EarthLink Cancellation Shipping Policy.
- If you cancel your Service and the One-Time Equipment Charge Plan after the DSL Remorse Period but during your Term Commitment, there will be no refunds and EarthLink will charge the early termination fee. You will not need to ship your EarthLink DSL Modem to EarthLink.
- If you cancel your Service or the One-Time Equipment Charge Plan after the DSL Remorse Period and after your Term Commitment, there will be no refunds and you will not need to ship your EarthLink DSL Modem to EarthLink.
- If you cancel only the One-Time Equipment Charge Plan (and not the Service) during the DSL Remorse Period, EarthLink will refund the One-Time Equipment Charge. You must ship the EarthLink DSL Modem to EarthLink in accordance with the EarthLink Cancellation Shipping Policy .
11. SPECIFIC INSTALLATION, WARRANTY AND CANCELLATION TERMS FOR THE FREESTANDING DSL MODEM PROVIDED BY AT&T
Subscribers who subscribe to the EarthLink Freestanding DSL Service on or after February 11, 2016 and whose Service Address in located in the Former SBC Coverage Area will be shipped a Freestanding Modem Provided by AT&T for use with their EarthLink Freestanding DSL Service.
EarthLink will charge subscribers for the Freestanding DSL ModemsProvided by AT&Tunder two payment plans: (i) a Monthly Equipment Fee Plan for the length of the subscription or (ii) a One-Time Equipment Charge Plan.
11.1 Self-Installation of the Freestanding DSL Modem Provided by AT&T
EarthLink will coordinate with AT&T for AT&T to ship the Freestanding DSL Modem Provided by AT&T self-installation guide (“Freestanding Installation Kit”) to your shipping address on file. The Freestanding Self-Installation Kit will include the Freestanding DSL ModemProvided by AT&T, filters, necessary cables to get connected, power supply and the installation guide (“Freestanding Install Guide”). The Original Shipment Date of the Freestanding DSL Modem Provided by AT&T is stated on the packing slip or your confirmation letter in the Freestanding Installation Kit. You can only connect to the Internet after 2:00 p.m. on the date specified on your confirmation letter or packing slip.
If you have any problems with installing the Freestanding DSL Modem Provided by AT&T, you can contact EarthLink technical support for assistance. EarthLink may suggest an outside vendor to help install it. You will be responsible for all costs and scheduling associated with the installation of the Freestanding DSL Modem Provided by AT&T. You are also responsible for all inside wiring repair necessary for such installation.
11.2 Warranty for the Freestanding DSL Modems Provided by AT&T
EarthLink provides a warranty for the Freestanding DSL Modems Provided by AT&T against defects in material and workmanship under ordinary consumer use. The Freestanding DSL Modems Provided by AT&T warranty does not cover defects resulting from (i) your installation of the Freestanding DSL Modems Provided by AT&T contrary to the setup instructions in the Freestanding Install Guide or (ii) repair or modification of the Freestanding DSL Modems Provided by AT&T by you or any party other than EarthLink. This warranty applies to the original subscriber and is not transferable. This warranty gives you specific legal rights, and you may also have other rights that vary from state to state.
The warranty under the Monthly Equipment Fee Plan continues for as long as your account for the Monthly Equipment Fee Plan is in good standing. T he warranty under the One-Time Equipment Charge Plan is 365 days from the Original Shipment Date (“One-Time Equipment Charge One Year Warranty Period”).
The warranty procedures under the Monthly Equipment Fee Plan include the following:
- You must contact EarthLink Technical Support via telephone or chat support about your defective Freestanding DSL Modem Provided by AT&T.
- If EarthLink Technical Support confirms that your Freestanding DSL Modem Provided by AT&T is defective, EarthLink, upon your request, will arrange for AT&T to ship to you a replacement Freestanding DSL Modem Provided by AT&T. EarthLink will not charge shipping or handling fees for shipping the replacement modem except if you upgrade the shipping method to overnight delivery.
The warranty procedures under the One-Time Equipment Charge Plan include the following procedures:
- You must contact EarthLink Technical Support via telephone or chat support about your defective Freestanding DSL Modem Provided by AT&T.
- If EarthLink Technical Support confirms during the One-Time Equipment Charge Plan’s One Year Warranty Period that your modem is defective, upon your request, EarthLink will arrange for AT&T to ship a replacement modem to you. EarthLink will not charge shipping or handling fees for shipping the replacement modem except if you upgrade the shipping method to overnight delivery.
- If EarthLink Technical Support confirms after the One-Time Equipment Charge Plan’s One Year Warranty Period that your modem is defective, upon your request, EarthLink will arrange for AT&T to ship a replacement modem to you. You will have the option to (i) pay the One-Time Equipment Charge plus shipping and handling fees or (ii) you can opt to subscribe to the Monthly Equipment Fee Plan.
The replacement Freestanding DSL Modem Provided by AT&T will be either a new or a fully inspected and tested refurbished unit.
You will not need to ship back the defective Freestanding DSL Modem Provided by AT&T under any of the above scenarios. The Freestanding DSL Modem Provided by AT&T may work with some DSL freestanding services of other providers that require authentication.
You agree to only use the Freestanding DSL Modem Provided by AT&T for its intended use with the EarthLink Freestanding DSL Service. The Freestanding Service in the Former SBC Coverage Area will not function with any other modem.
11.3 Specific Terms regarding Cancellation of the Freestanding DSL Modem Provided by AT&T
The Freestanding DSL Modem Provided by AT&T Monthly Equipment Fee Plan’s cancellation policies include the
Following:
- If you cancel your Freestanding DSL Modem Provided by AT&T and the Monthly Equipment Fee Plan prior to theDSL Billing Start Date, EarthLink will refund the monthly recurring fee for the Freestanding DSL Modem Provided by AT&T and the Monthly Equipment Fee. If you cancel before the Freestanding DSL Modem Provided by AT&T was shipped, EarthLink also will refund the shipping and handling fees.
- If you cancel your Freestanding DSL Modem Provided by AT&T and the Monthly Equipment Fee Plan within 30 days after the DSL Billing Start Date (“Freestanding DSL Modem Provided by AT&T Remorse Period”), EarthLink will refund the monthly recurring fee for the Freestanding DSL Modem Provided by AT&T and the Monthly Equipment Fee.
- If you cancel your Freestanding DSL Modem Provided by AT&T and the Monthly Equipment Fee Plan after the Freestanding DSL Modem Provided by AT&T Remorse Period but during the term of your Freestanding DSL Modem Provided by AT&T (“Term Commitment”), there will be no refunds and EarthLink will charge you the applicable early termination fee.
- If you cancel your Freestanding DSL Modem Provided by AT&T and the Monthly Equipment Fee Plan after the Freestanding DSL Modem Provided by AT&T Remorse Period and after the Term Commitment, there will be no refunds and no early termination fee.
- If you cancel the Monthly Equipment Fee Plan at any time but you want to keep the Freestanding DSL Modem Provided by AT&T, you will have to pay the One-Time Equipment Charge.
If you cancel your Freestanding DSL Modem Provided by AT&T, your Monthly Equipment Fee Plan will automatically be cancelled.
The Freestanding DSL Modem Provided by AT&T’s One-Time Equipment Charge Plan’s cancellation policies include the following:
- If you cancel your Freestanding DSL Modem Provided by AT&T during the Freestanding DSL Modem Provided by AT&T Remorse Period, EarthLink will credit the monthly recurring fee for the Freestanding DSL Modem Provided by AT&T and the One-Time Equipment Charge that you paid.
- If you cancel your Freestanding DSL Modem Provided by AT&T after the Freestanding DSL Modem Provided by AT&T Remorse Period but during your Term Commitment, there will be no refunds and EarthLink will charge you the early termination fee.
- If you cancel your Freestanding DSL Modem Provided by AT&T after the Freestanding DSL Modem Provided by AT&T Remorse Period and after your Term Commitment, there will be no refunds.
12. SPECIFIC INSTALLATION, WARRANTY AND CANCELLATION TERMS FOR THE HYPERLINK SERVICE
EarthLink offers two payment plans to pay for the HyperLink Equipment: (i) the monthly recurring equipment fee plan for the length of the subscription (“Monthly Equipment Fee Plan”) or (ii) the one-time equipment charge plan. (” One-Time Equipment Charge Plan”).
EarthLink will charge you an upfront installation charge to your account (“Installation Charge”). EarthLink will coordinate with you to schedule the date of the installation of the HyperLink Equipment by an AT&T technician (“Technician”) at your Service Address. EarthLink will send you an email notifying you of the installation date and the two hour arrival time (“Arrival Window”). On the day of install, the Technician will call you on the telephone number that you provided to inform you that he or she is on his or her way to your location.
If you need to reschedule the installation, you must call EarthLink at least 48 hours before your installation date. This 48 hour time period includes weekends. If you miss your scheduled appointment, EarthLink will charge a missed appointment fee to your EarthLink account after the HyperLink Equipment is installed on the second scheduled installation date. In the event that you miss the appointment on the second scheduled Arrival Window without rescheduling in accordance with the rescheduling procedures set forth above, EarthLink will charge a second missed appointment fee after the HyperLink Equipment is installed on the second rescheduled Arrival Window.
The Technician will determine the most appropriate installation location for the HyperLink Equipment to support your HyperLink Service. If you prefer a different installation location in your premises from where the Technician recommended, additional charges may apply. If you cannot agree on the installation location for the HyperLink Equipment, or you do not want to pay additional charges, you may cancel the Hyperlink Service while the Technician is still in your home. You also must contact EarthLink to cancel the HyperLink Service. All charges incurred will be refunded to your EarthLink account or if your EarthLink account is inactive, EarthLink will refund the charges paid to your credit card on file.
If existing wiring does not meet AT&T standards, additional charges may apply for a wiring upgrade. If you request additional wiring, charges may also apply. After the HyperLink Equipment has been installed, if you wish to move the HyperLink Equipment to a different location in your premises but additional wiring is needed to install the HyperLink Equipment to this new location, you will be responsible for contacting a third party vendor to install the appropriate wiring to the location of your choosing. EarthLink also may charge you for the Technician’s visit to move the HyperLink Equipment to the new location in your premises.
If you do not own your premises and need to obtain permission from any necessary party, such as a landlord or building manager, to allow AT&T to use the wiring inside of your unit or house and to make alternation to the property that AT&T deems appropriate in order to install the HyperLink Equipment, you must obtain such permission prior to installation.
The installation of the HyperLink Equipment and the first use of the HyperLink Service may interfere with the normal operation of a monitored alarm or emergency response system. Therefore, it is essential that all customers with monitored alarm systems test their alarms immediately following installation of the HyperLink Equipment. In no event will EarthLink be responsible for any claims or damages, of any nature whatsoever, resulting from any failure or malfunction of any alarm systems, whether or not caused bay any interference with or from the HyperLink Service.
In some cases, the HyperLink Equipment installation may require the inactivation of your current landline home phone service, if applicable, to complete the HyperLink Equipment installation. After the installation is complete, it will be your responsibility to cancel your landline telephone service with your provider so that you will not continue to be billed for this landline home phone service.
Your Internet access will be down for a short period of time during the installation.
12.2 Warranty of the HyperLink Equipment
The warranty under the Monthly Equipment Fee Plan continues for as long as your account for the Monthly Equipment Fee Plan is in good standing. T he warranty under the One-Time Equipment Charge Plan is 365 days from the Original Shipment Date (“One-Time Equipment Charge One Year Warranty Period”).
The warranty procedures under the Monthly Equipment Fee Plan include the following:
- You must contact EarthLink Technical Support via telephone or chat support about your defective HyperLink Equipment .
- If EarthLink Technical Support confirms that HyperLink Equipment is defective, EarthLink, upon your request, will arrange for a Technician to come to your premises to install the replaced HyperLink Equipment.
- EarthLink will not charge Installation Charges to install the new HyperLink Equipment unless you miss your appointment without contacting EarthLink in advance.
The warranty procedures under the One-Time Equipment Charge Plan include the following:
- You must contact EarthLink Technical Support via telephone or chat support about your defective HyperLink Equipment .
- If EarthLink Technical Support confirms that HyperLink Equipment is defective during the One-Time Equipment Charge One Year Warranty Period , upon your request, EarthLink will arrange for a Technician to come to your premises to install the replaced HyperLink Equipment at no charge. EarthLink will not charge Installation Charges to install the replaced HyperLink Equipment unless you miss your appointment without contacting EarthLink in advance.
- If EarthLink Technical Support confirms that HyperLink Equipment is defective after the One-Time Equipment Charge One Year Warranty Period , upon your request, EarthLink will arrange for AT&T to install the replaced HyperLink Equipment. EarthLink will charge the One-Time Charge and Installation Charge to your account for the replaced HyperLink Equipment
The replacement HyperLink Equipment will be either a new or a fully inspected and tested refurbished unit.
The HyperLink Equipment requires electrical power from your premises which you are responsible for providing. The HyperLink Equipment will not function in the event of a loss of power. You will be responsible for any backup battery solution. You may purchase battery backup for the HyperLink Equipment from third party manufacturers or retailers. You also are solely responsible for replacing and recycling used batteries. You agree to read and follow the manufacturer’s or vendor’s instructions for replacing and recycling backup batteries.
You agree to only use the HyperLink Equipment for its intended use with the HyperLink Service .
12.3 Specific Terms for the HyperLink Service with Apple TV
EarthLink also offers the HyperLink Service with Apple TV (“HyperLink Service with Apple TV”) includes one Apple TV device (“Apple TV Device”). You cannot order additional Apple TV Devices from EarthLink.
If you place an order for the HyperLink Service with Apple TV offer, you cannot change it to any other HyperLink offer after your original order has been placed. Likewise, if you placed an order for only the HyperLink Service offer, you cannot change it to the HyperLink Service with Apple TV offer after your original order has been placed.
The Apple TV Device will be shipped to you by Apple after (i) the HyperLink Equipment installation and processing fee has been paid in full, (ii) the HyperLink Equipment has been installed, and (iii) a monthly invoice has been paid in full. You cannot return the Apple TV Device for a refund. Apple’s policies and agreements will govern your use of Apple TV. The warranty for the Apple TV Device can be found at http://www.apple.com/legal/warranty/products/ios-warranty-document-us.html.
The instructions in the package containing the Apple TV Device will explain how to install the Apple TV Device and how to use Apple TV. If you have any problems with the installing the Apple TV Device or other questions regarding Apple TV, you can contact Apple Technical Support at https://getsupport.apple.com/.
12.4 Specific Terms regarding Cancellation of the HyperLink Service
This Section 12.4 applies to both the HyperLink Service without Apple TV and the HyperLink Service with Apple TV.
The Monthly Equipment Fee Plan’s cancellation policies include the following:
- If you cancel your HyperLink Service and the Monthly Equipment Fee Plan prior to thescheduled installation date, EarthLink will refund the monthly recurring fee for the HyperLink Service, the Monthly Equipment Fee and the Installation Charge.
- If you cancel your HyperLink Service and the Monthly Equipment Fee Plan within 30 days after the HyperLink Equipment has been installed (“HyperLink Remorse Period”), EarthLink will refund the monthly recurring fee for the HyperLink Service and the Monthly Equipment Fee.
- If you cancel your HyperLink Service and the Monthly Equipment Fee Plan after the HyperLink Remorse Period but during the term of your HyperLink Service (“Term Commitment”), there will be no refunds and EarthLink will charge you the applicable early termination fee.
- If you cancel your HyperLink Service and the Monthly Equipment Fee Plan after the HyperLink Remorse Period and after the Term Commitment, there will be no refunds and no early termination fee.
- If you cancel the Monthly Equipment Fee Plan at any time but you want to keep the HyperLink Service, you will have to pay the One-Time Equipment Charge.
If you cancel your HyperLink Service, your Monthly Equipment Fee Plan will automatically be cancelled.
The cancellation policies for the One-Time Equipment Charge include the following:
- If you cancel your HyperLink Service prior to theInstallation, EarthLink will refund the monthly recurring fee for the HyperLink Service, the One-Time Equipment Charge, and the Installation Charge.
- If you cancel your HyperLink Service during the HyperLink Remorse Period, EarthLink will credit to your account the monthly recurring fee for the HyperLink Service and the One-Time Equipment Charge that you paid.
- If you cancel your HyperLink Service after the HyperLink Remorse Period but during your Term Commitment, there will be no refunds and EarthLink will charge you the early termination fee.
- If you cancel your HyperLink Service after the HyperLink Remorse Period and after your Term Commitment, there will be no refunds.
No matter when you cancel your HyperLink Service, you do not need to return the HyperLink Equipment. If you ordered the HyperLink Service with Apple TV and cancel within your Term Commitment, EarthLink requires you to ship your Apple TV Device to EarthLink. EarthLink will mail you a letter with instructions for shipping the Apple TV Device to EarthLink and a prepaid shipping label for you to use to ship the Apple TV Device to be received by EarthLink within 30 days of the date listed in the letter. In order for the return of the Apple TV Device to be processed correctly, you will need to use the EarthLink provided prepaid shipping label. If you do not ship the Apple TV Device to EarthLink in accordance with these procedures within the required time period, EarthLink will charge a Non-Returned Equipment Fee to your account. If you cancel the HyperLink Service with Apple TV after the Term Commitment, then you do not need to return the Apple TV Device to EarthLink.
13. USE OF THE SERVICE
You represent that when you transmit, upload, post or submit any content, images or data using the Service you have the legal right to do so and that your use of such content, image or data does not violate any law (including copyright or trademark laws) or any other third party rights. You agree that EarthLink has no responsibility for the accuracy, completeness, value or usefulness of any content, advice or opinions contained in any emails, third party web sites, message boards, chat rooms, social networks or online services. The Internet may contain material that is unsuitable for minors, and you agree to supervise and to accept sole responsibility and liability for any use of the Service by minors through your account. Your use of the Service is also governed by the Privacy Policy.
EarthLink may take any legal and technical remedies to enforce or prevent the violation of this Agreement or any other EarthLink agreement or policy.
14. MONITORING THE SERVICE
EarthLink has no obligation to monitor the Service but may do so to (i) comply with laws, regulations, or governmental or legal requests; (ii) protect the overall integrity of the Service (including the EarthLink network); (iii) operate the technical aspects of the Service in a proper, effective, and reasonable manner; (iv) protect itself, its employees, or others as described in the Privacy Policy; and (v) enforce or prevent breaches of this Agreement or other EarthLink agreements or policies.
EarthLink will only disclose information regarding your use of your Service in accordance with the Privacy Policy. EarthLink may immediately remove your material or information from EarthLink’s servers, in whole or in part, if EarthLink reasonably believes it infringes another’s property rights or violates other EarthLink agreements or policies, or any laws or regulations. EarthLink will use commercially reasonable efforts to schedule any maintenance outages in a way that minimizes the impact on subscribers; however, EarthLink cannot guarantee that your Service will not be interrupted and cannot always provide advance notice of such outages.
EarthLink’s tools and methods to manage EarthLink’s network, including network congestion, and to address security concerns and harmful online activities (e.g. spamming and phishing) in connection with Residential DSL Internet Service are specifically addressed in the Residential Broadband Network Management Information.
15. GENERAL DISCLAIMERS AND WARRANTIES
THE SERVICE AND THE EQUIPMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EARTHLINK AND ITS SUPPLIERS AND VENDORS DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EARTHLINK AND ITS SUPPLIERS AND VENDORS MAKE NO EXPRESS WARRANTIES REGARDING THE SERVICE AND THE EQUIPMENT AND WAIVE ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EARTHLINK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND VENDORS (COLLECTIVELY “EARTHLINK PARTIES”) WILL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS IN CONNECTION WITH THE SERVICE AND THE EQUIPMENT RESULTING FROM: (I) AVAILABILITY OR QUALITY WITHIN THE COVERAGE AREA REGARDLESS OF THE CAUSE(S) OF THE PROBLEM; (II) OTHER USERS ACCESSING YOUR DEVICE; (III) VARIATIONS IN THE SPEED OR BANDWIDTH AVAILABILITY TO EACH DEVICE CONNECTED TO THE EARTHLINK NETWORK; (IV) SECURITY BREACHES; (V) EAVESDROPPING; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (VI) YOUR RELIANCE ON OR USE OF THE SERVICE; (VII) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE), DELETION OF FILES, ERRORS, OR DEFECTS REGARDLESS OF WHETHER YOUR DATA IS MAINTAINED ON THE EARTHLINK SERVERS OR YOUR DEVICE(S); (VIII) DELAYS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE OF THE SERVICE; (IX) USE OF THE SERVICE BY YOU OR A THIRD PARTY THAT INFRINGES A THIRD PARTY’S COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OTHER INTELLECTUAL PROPERTY, PROPRIETARY, OR CONTRACTUAL RIGHTS; OR (X) ACCURACY, COMPLETENESS, AND USEFULNESS OF ANY THIRD PARTY PRODUCTS, SERVICES OR INFORMATION OR THE MERCHANTABILITY OF SUCH ITEMS (INCLUDING ANY SUCH ITEMS OFFERED THROUGH CO-BRANDED WEB SITES LINKED FROM THE EARTHLINK WEB SITES).
THE EARTHLINK PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR (I) YOUR FAILURE TO PROPERLY INSTALL, USE OR OPERATE THE EQUIPMENT OR (II) ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY OF YOUR DEVICES, SOFTWARE, FILES, DATA, PERIPHERALS OR PROPERTY DUE TO YOUR INSTALLATION, ATTEMPTED INSTALLATION, USE, REPAIR OR REMOVAL OF THE EQUIPMENT.
THE FOREGOING LIMITATIONS APPLY TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF THE EARTHLINK PARTIES WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO THE CAUSE OF ACTION AGAINST ANY EARTHLINK PARTY IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE. YOUR EXCLUSIVE AND ONLY REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
THE CUMULATIVE LIABILITY OF ANY EARTHLINK PARTY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE Service AND THE EQUIPMENT WILL NOT EXCEED THE TOTAL AMOUNT OF Service FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM.
YOU MAY HAVE OTHER RIGHTS UNDER CERTAIN LAWS IN CERTAIN STATES WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.
16. INDEMNIFICATION
You agree to defend, indemnify and hold the EarthLink Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages including, but not limited to, direct, indirect and consequential damages, attorney’s fees and expenses that an EarthLink Party may sustain or incur by reason of your use or misuse of the Service or the Equipment or the use or misuse of the Service of the Equipment by anyone else through your account including, but not limited to, use or misuse of the Service of Equipment (i) in violation of applicable laws or regulations or the terms of this Agreement or any other EarthLink agreement or policy; (ii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with such use or misuse; (iii) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible property (including data); or (iv) any claims of the owner of your premises in connection with the installation of the Equipment including the use of wiring inside your unit for installation of the HyperLink Equipment.
17. ELECTRONIC COMMUNICATIONS AND PHONE COMMUNICATIONS
17.1 Electronic Communications
You consent to receive notices, documents, disclosures and other communications from EarthLink about your account or Service (“Communications”) in an electronic format to your Contact Email Address and agree that the Communications provided to you by EarthLink electronically will be deemed a writing. If you do not want to receive Communications from EarthLink electronically or if you withdraw your consent to receive such Communications electronically, then you must stop using the Service. The withdrawal of your consent will not affect the legal validity and enforceability of any electronic Communications provided or business transacted between EarthLink and you prior to the time you withdraw your consent.
17.2 Phone Calling and Texting
In addition, you hereby agree that your use of the Service constitutes your express written consent to receive automated and manually dialed calls, text messages and pre-recorded messages at the phone number(s) that you provide EarthLink in connection with your subscription to or use of the Service. Consent to receiving autodialed calls, text messages, and/or pre-recorded messages from EarthLink is not required to purchase products or services from EarthLink.
17.3 Changing Your Contact Preferences
You may exercise your option not to receive any marketing communications from and/or automated or manually dialed calls, text messages and pre-recorded messages from EarthLink (i) for EarthLink Services, by going directly to https://myaccount.earthlink.net/cam/contactinfo.jsp or calling EarthLink customer service, or (ii) for the PeoplePC DSL Service, by going directly to https://myaccount.peoplepc.com/cam/contactinfo.jsp or calling PeoplePC customer service . You also may text STOP in response to any text message from EarthLink to stop receiving text messages from EarthLink.
18. CUSTOMER SERVICE AND TECHNICAL SUPPORT
For online customer support for your Service, including troubleshooting email, certain connection issues, billing issues, setting up your email, and online account maintenance, go to http://support.earthlink.net/ for the EarthLink Services or https://support.peoplepc.com/ for the PeoplePC Services . For specific billing questions, you also can login to myaccount at https://myaccount.earthlink.net/cam/whlogin.jsp.
To contact EarthLink Customer Service via telephone or live chat, go to http://www.earthlink.net/about/contact/ for the EarthLink Services and http://psc.peoplepc.com/contact/contact.php for the PeoplePC Services.
EarthLink may provide technical support for certain computer software configurations and browser setups for problems connecting to the Internet through laptops, notebooks and tablets, but not for smart phones. However, EarthLink may refer you to the manufacturer of any hardware or software for technical support.
19. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
20. DISPUTE RESOLUTION BY BINDING ARBITRATION (INCLUDING IMPORTANT INFORMATION FOR CALIFORNIA RESIDENTS)
20.1 Summary
Most subscriber concerns can be resolved by calling 1-800-EARTHLINK. If EarthLink is unable to resolve your complaint to your satisfaction (or if EarthLink has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed $75,000, EarthLink will pay all costs of the arbitration. Moreover, in arbitration you are entitled to recover attorneys’ fees from EarthLink to at least the same extent as you would be in court.
In addition, under certain circumstances (as explained below), EarthLink will pay you more than the amount of the arbitrator’s award and will pay your attorney (if any) his or her reasonable attorneys’ fees if the arbitrator awards you an amount that is greater than what EarthLink has offered you to settle the dispute.
20.2 Agreement to Arbitrate
EarthLink and you agree to resolve all disputes and claims between us through binding arbitration by the American Arbitration Association (“AAA”). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- Claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
- Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- Claims that may arise after the termination of this Agreement.
References to “EarthLink,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Service under this Agreement or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court rather than by arbitration if the claim qualifies for small claims court in a location where jurisdiction and venue over EarthLink and you is proper. This agreement to arbitrate does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.
You agree that, by entering into this Agreement, you and EarthLink are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this provision.
20.3 Informal Dispute Resolution Prior to Arbitration
20.3(1) Notice of Dispute
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). A Notice to EarthLink should be addressed to: General Counsel (Arbitration), EarthLink, LLC, 1170 Peachtree Street, Suite 900, Atlanta, Georgia 30309 (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). A Notice to you will be addressed to the billing address that EarthLink has on file for you.
20.3(2) Settlement Proposals
The amount of any settlement offer made by EarthLink or you will not be disclosed to the arbitrator in any arbitration between us until after the arbitrator determines the amount, if any, to which you or EarthLink is entitled.
20.3(3) Failure to Reach Resolution
If EarthLink and you do not reach an agreement to resolve the claim within 45 days after the Notice is received, you or EarthLink may commence an arbitration proceeding.
20.4 Commencement of Arbitration
You may initiate an arbitration by filing a claim form with the AAA and sending a copy of the claim form to EarthLink at the Notice Address. You can access a claim form and directions for filing at the website for AAA, https://www.adr.org. If EarthLink receives notice at the Notice Address that you have commenced arbitration and paid the filing fee to the AAA, it will promptly reimburse you for your payment of the filing fee by check to your address or by credit to your account unless your claim is for greater than $75,000. (The filing fee currently is $200 for claims under $10,000 but is subject to change by the arbitration provider. If you are unable to pay this fee, EarthLink will pay it directly upon receiving a written request from you to the Notice Address.)
20.5 Arbitration Procedures
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the AAA, as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at https://www.adr.org or by calling the AAA at 1-800-778-7879. One arbitrator, who is selected under the AAA Rules, will conduct the arbitration. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for a court to decide. Unless EarthLink and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. The right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
20.6 Appeal
If an award issued by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the AAA by a written notice of appeal filed within 30 days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the AAA. The AAA will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel will be final and binding, except for any appellate right which exists under the FAA. If an award issued by the arbitrator does not exceed $75,000, any appeal rights from the award will be governed by the FAA.
20.7 Arbitration Fees
Except as otherwise provided for herein, EarthLink will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse EarthLink for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
20.8 Awards and Attorney’s Fees
If the arbitrator issues you an award that is greater than the value of EarthLink’s last written settlement offer made before an arbitrator was selected, or if the arbitrator issues you an award and EarthLink made no settlement offer, then EarthLink will pay you the amount of the awardor $2,500 (“Alternative Payment”), whichever is greater, and pay your attorney, if any, the amount of attorney’s fees incurred, and reimburse any expenses (including expert witness fees and costs) that your attorney, if any, reasonably accrues and documents with specificity for investigating, preparing, and pursuing your claim in arbitration (“Attorney Fee Award”).
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the Alternative Payment and the Attorney Fee Award at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
The right to attorneys’ fees and expenses discussed in this Section 20.8 supplements any right to attorneys’ fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys’ fees or expenses. Although under some laws EarthLink may have the right to an award of attorney’s fees and expenses if it prevails in an arbitration, EarthLink agrees that it will not seek such an award.
20.9 Waiver of Class Actions; Limits of Scope of Arbitrator’s Authority
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND EARTHLINK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and EarthLink agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision will be null and void and all disputes will be heard by a court.
20.10 Future Changes to Agreement to Arbitrate
Notwithstanding any provision in this Agreement to the contrary, if EarthLink makes any future change to this arbitration provision (other than a change to the Notice Address) during the term of your subscription with EarthLink, you may reject any such change by sending us written notice to the Notice Address postmarked within 30 days of the date of the change. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language in this Section 20 of this Version dated March 1, 2017.
20.11 Notice to California Residents
California residents are entitled to the following information:
The Service is provided by EarthLink, LLC, 1170 Peachtree Street, Suite 900, Atlanta, Georgia 30309.
Charges may vary depending on the type of Service.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834 or by telephone at 1-800-952-5200.
20.12 Survival
This Section 20 will survive the termination of your Service with EarthLink.
21. REVISIONS TO THIS AGREEMENT
EarthLink may revise, amend, or modify this Agreement at any time by posting the revised version of this Agreement on the EarthLink Web Site located at www.earthlink.net which is also linked from www.peoplepc.com. The revised version will be effective on the date that it is posted as stated at the end of the revised version. The material changes to this Agreement will be noted in endnotes of the revised version. Your continued use of the Service after the date of the revised version constitutes your acceptance of all of the revisions. If you do not agree to the revisions in the revised version, your sole and exclusive remedy will be to terminate your account and use of the Service.
22. MISCELLANEOUS
You may not assign your rights or delegate any of your duties under this Agreement without the prior written consent of EarthLink, and any attempted assignment or delegation without such consent will be void. If one or more provisions of this Agreement are held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration provision in Section 20; if that prohibition is found to be unenforceable, the entire DISPUTE RESOLUTION BY BINDING ARBITRATION provision (but only the DISPUTE RESOLUTION BY BINDING ARBITRATION provision) will be null and void and the dispute will be heard by a court. EarthLink may amend or replace such unenforceable provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of EarthLink as reflected in the original provision. Nothing in this Agreement or in the understanding of the parties confers upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. EarthLink may subcontract any work, obligations or other performance required of EarthLink under this Agreement without your consent. EarthLink will not be liable for delays, damages or failures in performance because of causes beyond its reasonable control, including, but not limited to, acts of a government in its sovereign capacity, acts of war, terrorism, acts of a public enemy, fires, earthquakes, acts of God, labor disputes, strikes, work slow-downs or other labor-related activity.
Effective Date: March 1, 2017
The following endnote summarizes the material revision made in this March 1, 2017 version of this Agreement compared to the December 13, 2016 version of this Agreement.
1 The first sentence in the second paragraph was revised to expand the duration of the warranty for the EarthLink DSL Modem shipped on or after February 11, 2016 under the One-Time Equipment Fee from two years to as long your account for your DSL Service is in good standing.
EARTHLINK HOME NETWORKING SERVICE AGREEMENT
READ THIS HOME NETWORKING SERVICE AGREEMENT CAREFULLY BEFORE USING THE EARTHLINK HOME NETWORKING SERVICE.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. AGREEMENT
This Home Networking Service Agreement (“Agreement”) governs your use of the EarthLink Home Networking Service (“Service”). This Agreement is between EarthLink, LLC and its related entities (“EarthLink”) and you and applies to the Service and any routers or adopters you purchase through the EarthLink web site in connection with the Service (“EarthLink-provided Equipment”). This Agreement consists of the terms and conditions below, the specific terms of your billing plan for the Service and the Privacy Policy.
By establishing an account for the Service or using the Service, you agree to be bound by this Agreement and to use the Service in compliance with the terms of this Agreement and all applicable federal, state and local laws, rules and regulations.
2. TERM OF THIS AGREEMENT
The effective date of this Agreement is the date on which you subscribed to the Service. This Agreement continues until the date of termination of your Service. Sections 6, 7, 8, 9, 10, 11, 13, 14 and 16 of this Agreement will survive the termination of this Agreement.
3. SUBSCRIPTION INFORMATION
To order and receive the Service, you acknowledge that you are 18 years of age or older, and you have legal authority to enter into this Agreement. You must provide EarthLink with (i) a valid credit or debit card or other EarthLink approved payment method for the Service; (ii) your billing address; and (iii) your shipping address, if different from your billing address. You represent that all information you provided during the subscription process is accurate and complete and that you will update such information with EarthLink should any of it change.
EarthLink reserves the right to verify the accuracy of the information you submit in connection with your subscription to the Service and you consent to such verification. EarthLink also reserves the right to validate the payment method information you provide at subscription and account updates, including attempting up to a $1.00 authorization to your credit or debit card which is not actually billed. To understand how EarthLink handles and protects your personal information, please see the Privacy Policy.
To receive the Service, you must have an active broadband connection. You are responsible for charges for the Service regardless of the status of your broadband connection. You are responsible for making sure that your computer’s operating system and browser meets the minimum system requirements as set forth at http://www.earthlink.net/software/stayconnected.faces?tab=homenetworking&p=start before signing up for the Service. EarthLink may accept or reject any potential subscriber for the Service in its sole discretion.
4. GENERAL DESCRIPTION OF AND RESTRICTIONS ON THE SERVICE
The Service provides a way to link and protect computers and peripherals (such as printers, scanners, and disk drives) in your home. The Service includes configuration of your home networking by the EarthLink home networking specialists and ongoing technical support for a single home network that meets certain system requirements. You have the option to purchase EarthLink-provided Equipment or you can provide your own routers and/or adapters.
The Service term is 12 months. After the initial 12 month term, the Service will continue on a month-to-month basis until you cancel your Service or EarthLink terminates your Service account. From time to time EarthLink may impose reasonable rules and regulations regarding the use of the Service. EarthLink does not guarantee upload, download, or network speeds or quality.
EarthLink also reserves the right to change any of the features, content or applications of the Service at any time with or without notice to you.
5. INSTALLATION OF EARTHLINK-PROVIDED EQUIPMENT
If you purchased EarthLink-provided Equipment in connection with the Service, the EarthLink Home Networking specialists will assist you over the telephone to install the EarthLink-provided Equipment. You are solely responsible for backing up all of your existing computer files and data prior to installation of the EarthLink-provided Equipment. The installation, use, inspection, maintenance, repair, and removal of the EarthLink-provided Equipment may result in service outage or potential damage to your computer. You assume responsibility for impacts to or loss of any warranty associated with the opening of your computer for installation purposes.
You are also responsible for all inside wiring repair necessary to install the EarthLink-provided Equipment. If you are not the owner of the premises, you warrant that you have obtained the consent of the owner for vendor personnel and/or its agents to enter the premises for installation. You will indemnify and hold EarthLink, its officers, directors, employees, subsidiaries, affiliates, agents, suppliers and contractors harmless from and against any claims of the owner of the premises arising out of the performance of this Agreement.
6. BILLING AND PAYMENT
The charges for the Service can be found at www.earthlink.net/software/stayconnected.faces?tab=homenetworking&p=start. You agree to pay the recurring monthly fee in your billing plan due in advance of the month incurred. In addition, your bill will include (i) taxes, surcharges, and fees required by any applicable government entity; (ii) shipping and handling fees, if applicable; and (iii) method of payment fees, if applicable. All payments must be made in US dollars.
You will be able to use the Service for any consecutive monthly period that has been paid in advance as described in the acceptance materials that you received as part of you sales transaction or on your order confirmation. For example, if your billing cycle begins on the sixth day of the month, then your payment due date (i.e. the date that the amount of your full monthly Service fee, including any and all applicable taxes, must be received by EarthLink) will be on the fifth day of the next month and of each month thereafter. If you subscribe to an EarthLink broadband access service, the Service fees are in addition to your monthly access fee. EarthLink may charge for shipping, taxes, billing fees, postage and handling and other applicable fees.
Charges may be billed on or after your billing cycle date to your method of payment on file each month for the Service including any additional charges incurred (taxes and fees). EarthLink is not responsible for any fees resulting from charges billed by EarthLink including, but not limited to, overdrawn accounts or exceeding credit or debit card limits.
If you provided EarthLink with a valid credit or debit card, you agree to maintain valid and current credit or debit card information with EarthLink at all times. If you authorized EarthLink to automatically deduct (“ACH Debit“) your monthly Service fees and any other charges, fees, or taxes billed to you, from your checking or savings bank account, then you hereby reaffirm your agreement to the Recurring Automatic Bank Draft Authorization Agreement. You acknowledge and agree that you authorize EarthLink and that EarthLink does not need to obtain any additional authorization from you for any recurring payments or automatic billing options. In addition, if your credit or debit card company provides updated credit or debit card information to EarthLink, you acknowledge that EarthLink does not need to obtain authorization from you for EarthLink to use such information to update your credit or debit card.
If payment by check has been accepted by EarthLink, then payments by check must be received by EarthLink by the due date listed in your monthly paper invoice. EarthLink will charge a processing fee each time you pay your monthly billing invoice . When you pay your fees by check, you also authorize EarthLink to electronically process your payment. If your check is processed electronically, your checking account may be debited on the same day that EarthLink receives your check and neither your check nor a copy of your check will be included with your checking account statement.
EarthLink will charge a fee for returned checks or returned bank drafts from your financial institution.
EarthLink will email an e-invoice to your primary EarthLink email address selected by or assigned to you during the subscription process (“Contact Email Address”) each month or if you designated a different billing email address, EarthLink will email the e-invoice to such billing email address each month. You may request through https://myaccount.earthlink.net/cam/billing_info.jsp or by calling EarthLink Customer Service that EarthLink mail a paper invoice to your billing mailing address each month. EarthLink will charge your account a fee for each paper invoice. If you elect to have EarthLink mail you your monthly invoice, you may request that EarthLink also email your monthly invoice your Contact Email Address or if you designated a different billing email address , to such billing email address. There is no charge for e-invoices.
Your account will be automatically inactivated if you put a stop payment on your account with your financial institution in connection with the payment of your monthly bill.
All charges are considered valid unless disputed in writing within 30 days of the billing date and mailed to1:
EarthLink, LLC
Customer Service
1439 Peachtree Street NE
Atlanta, Georgia 30309
Adjustments will not be made for charges that are disputed more than 30 days after the billing date.
EarthLink reserves the right to change the fees and institute new fees (e.g. equipment fees) associated with the Service at any time with at least 30 days written notice prior to the effective date of such change or new fee. Such written notice may include a letter sent via U.S. mail, a notice on your monthly bill or an email sent to your Contact Email Address.
EarthLink may use various means to recover monies due. If EarthLink retains a collection agency or takes legal action to collect monies due on your account, you agree to pay all costs and expenses of collection incurred by EarthLink, which may include reasonable attorney’s fees and collection agency fees which may be based on a percentage of the amount owed, up to a maximum of 25%, where permitted by applicable law.
7. CANCELLATION AND TERMINATION
You may cancel your Service only as follows:
- Telephone Cancellation: EarthLink toll-free number at 1- 888-327-8454
- Fax Cancellation: Please include your account number and a current telephone phone number. and fax to 404-795-1034
- Mail Cancellation: Send registered or certified mail, return receipt requested to:
EarthLink, LLC
Cancel Home Networking Service
1439 Peachtree Street NE
Atlanta, Georgia 30309
EarthLink does NOT accept cancellations by email.
EarthLink will issue a confirmation number to you by email as proof of cancellation of your Service. Accounts are set to close at the end of the current billing period. EarthLink does not grant refunds or credits for any prior use including partial use during the last month prior to cancellation. If you cancel by one of the prescribed methods listed above and are mistakenly billed for your Service after the end of the billing period, EarthLink will refund any erroneous charges upon proof of such cancellation.
EarthLink may terminate your account for the Service at any time for any reason, including, without limitation, if (i) your account is delinquent because charges on your method of payment were refused for any reason, (ii) you failed to make payment when due or you did not provide EarthLink with your credit or debit card’s expiration date or expiration date of any other method of payment before the existing expiration date; (iii) EarthLink, in its sole discretion, believes you have breached this Agreement or any other EarthLink agreements or policies; or (iv) your use of the Service is prohibited by law . A termination notice will be sent to you via (i) your Contact Email Address or (ii) U.S. Mail to the billing address for your EarthLink account.
If your Service is canceled by you or by EarthLink prior to the end of the fixed period in your billing plan and your billing plan includes an early termination fee, EarthLink will bill you the early termination fee set forth in your billing plan. In certain situations, EarthLink may waive the early termination fee, at its discretion, if (i) EarthLink no longer provides the Service to your current location, (ii) you live in an area currently deemed a weather or war disaster area, or (iii) you were deployed for active military service.
The Service will close at the end of the current billing period in which notice of cancellation is received or in which EarthLink canceled your Service.
If you ordered EarthLink-provided equipment, EarthLink requires that you pay any past due balance with EarthLink prior to EarthLink shipping the EarthLink-provided equipment.
8. EARTHLINK-PROVIDED EQUIPMENT RETURN POLICY
If you purchased EarthLink-provided Equipment, the following applies: All EarthLink-provided Equipment returns must have an EarthLink-provided shipping label and the original packaging (or equivalent). If you cancel your account and return all EarthLink-provided Equipment within 30 days of your shipping date (the date EarthLink mails your EarthLink-provided Equipment), EarthLink will refund all fees incurred to date, excluding postage and handling. EarthLink will not refund any fees after 30 days of your shipping date. EarthLink will mail you a shipping label upon cancellation and will not accept returns without an EarthLink-supplied shipping label.
EarthLink, in its discretion, may replace EarthLink-provided Equipment due to manufacturer’s defect at no cost to you under the following circumstances: you call the EarthLink Technical Support Department within one year of your original shipping date; the EarthLink Technical Support Department certifies that a defect has occurred; and you return the EarthLink-provided Equipment in the original packaging (or equivalent) using an EarthLink-provided shipping label within 30 days of certification. Upon certification, EarthLink will ship replacement EarthLink-provided Equipment to you. Failure to return the certified EarthLink-provided Equipment within 30 days of certification will result in a charge for the new EarthLink-provided Equipment. EarthLink will not accept the return of EarthLink-provided Equipment without EarthLink Technical Support Department certification and shipping label after 30 days from the original shipping date. EarthLink will not replace any EarthLink-provided Equipment, including replacements, after one year from your original shipping date.
9. General DISCLAIMERS AND WARRANTIES
THE SERVICE AND THE EARTHLINK-PROVIDED EQUIPMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EARTHLINK AND ITS SUPPLIERS AND VENDORS DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. EARTHLINK AND ITS SUPPLIERS AND VENDORS MAKE NO EXPRESS WARRANTIES AND WAIVE ALL IMPLIED WARRANTIES REGARDING THE SERVICE AND THE EARTHLINK-PROVIDED EQUIPMENT INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EARTHLINK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND VENDORS (COLLECTIVELY “EARTHLINK PARTIES”) WILL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS IN CONNECTION WITH THE SERVICE OR THE EARTHLINK-PROVIDED EQUIPMENT ARISING OR RESULTING FROM : (I) SERVICE AVAILABILITY OR QUALITY, REGARDLESS OF THE CAUSE(S) OF THE PROBLEM(S); (II) OTHER USERS ACCESSING YOUR SERVICE; (III) THE INSTALLATION, REPAIR, USE OR REMOVAL OF THE EARTHLINK-PROVIDED EQUIPMENT BY YOU OR BY A THIRD PARTY; (IV) AVAILABILITY OR QUALITY OF SERVICE REGARDLESS OF THE CAUSE(S) OF THE PROBLEM(S); (V) SECURITY BREACHES; (VI) EAVESDROPPING; (VII) YOUR RELIANCE ON OR USE OF THE SERVICE; ( VIII) MISTAKES, OMISSIONS, INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE), DELETION OF FILES OR DATA (INCLUDING PERSONALLY IDENTIFIABLE INFORMATION); (IX) DELAYS OR ERRORS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE OF THE SERVICE; (X) CLAIMS BY THE OWNER OF THE PREMISES FROM AND AGAINST ANY CLAIMS IN CONNECTION WITH THE INSTALLATION OF THE EARTHLINK-PROVIDED EQUIPMENT; (XI) YOUR RELIANCE ON OR USE OF THE SERVICE; OR (XII) THE USE OF THE SERVICE BY YOU OR A THIRD PARTY THAT INFRINGES A THIRD PARTY’S COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, INTELLECTUAL PROPERTY OR CONTRACTUAL RIGHTS.
THE EARTHLINK PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR (I) YOUR FAILURE TO PROPERLY INSTALL, USE OR OPERATE THE EARTHLINK-PROVIDED EQUIPMENT OR (II) ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY OF YOUR DEVICES, SOFTWARE, FILES, DATA, PERIPHERALS OR PROPERTY DUE TO YOUR INSTALLATION, ATTEMPTED INSTALLATION, USE, REPAIR OR REMOVAL OF THE EARTHLINK-PROVIDED EQUIPMENT.
THE FOREGOING LIMITATIONS APPLY TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF THE EARTHLINK PARTIES WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO THE CAUSE OF ACTION AGAINST ANY EARTHLINK PARTY IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE. YOUR EXCLUSIVE AND ONLY REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
THE CUMULATIVE LIABILITY OF ANY EARTHLINK PARTY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICE AND THE EARTHLINK-PROVIDED EQUIPMENT WILL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM.
YOU MAY HAVE OTHER RIGHTS UNDER CERTAIN LAWS IN CERTAIN STATES WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.
10. INDEMNIFICATION
You agree to defend, indemnify and hold the EarthLink Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages including, but not limited to, direct, indirect and consequential damages, attorney’s fees and expenses that an EarthLink Party may sustain or incur by reason of your use or misuse of the Service or the use or misuse of the Service by anyone else through your account including, but not limited to, use or misuse of the Service (i) in violation of applicable laws or regulations or the terms of this Agreement or any other EarthLink agreement or policy; (ii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with such use or misuse; or (iii) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible property (including data).
11. ELECTRONIC COMMUNICATIONS AND PHONE COMMUNICATIONS
11.1 Electronic Communications
You consent to receive notices, documents, disclosures and other communications about your account or EarthLink Service from EarthLink (“Communications”) in an electronic format to your Contact Email Address and agree that the Communications provided to you by EarthLink electronically will be deemed a writing. If you do not want to receive Communications from EarthLink electronically or if you withdraw your consent to receive such Communications electronically, then you must stop using the Service. The withdrawal of your consent will not affect the legal validity and enforceability of any electronic Communications provided or business transacted between EarthLink and you prior to the time you withdraw your consent.
11.2 Phone Calling and Texting
In addition, you hereby agree that your use of the Service constitutes your express written consent to receive automated and manually dialed calls, text messages and pre-recorded messages at the phone number(s) that you provide EarthLink in connection with your subscription to or use of the Service. Consent to receiving autodialed calls, text messages, and/or pre-recorded messages from EarthLink is not required to purchase products or services from EarthLink.
11.3 Changing Your Contact Preferences
You may exercise your option not to receive any marketing communications from and/or automated or manually dialed calls, text messages and pre-recorded messages from EarthLink by going directly to https://myaccount.earthlink.net/cam/contactinfo.jsp or calling EarthLink customer service. You also may text STOP in response to any text message from EarthLink to stop receiving text messages from EarthLink.
12. CUSTOMER SERVICE AND TECHNICAL SUPPORT
For online customer support for your Service including billing issues and online account maintenance, go to http://support.earthlink.net/.
To contact the EarthLink Home Networking specialists via telephone call 888-327-8454 and by live chat, go to http://www.earthlink.net/about/contact/.
EarthLink may provide technical support for the home networking configurations. EarthLink limits support to EarthLink-provided Equipment or equipment on the system requirements list. In certain circumstances, it may be necessary to refer you to the manufacturer of any hardware or software for technical support.
Specifically, EarthLink will not be able to provide technical support for the following:
- Network fax machines, scanners, or printers
- Inter-operating-system file sharing (i.e., does not support NT <-> 9x, 9x <-> MAC, MAC <-> NT
- “Traveling” network machines, Local LAN support only (users should record their Home Network settings for their “traveling” laptops, as settings to use other networks will usually be different)
- Internet server support (ftp, pop, smtp, http)
- VPN or other remote access support
- Interference to a wireless LAN due to other products transmitting energy in the same frequency range (i.e., microwaves, multiple wireless LANs, etc.)
13. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
14. DISPUTE RESOLUTION BY BINDING ARBITRATION (INCLUDING IMPORTANT INFORMATION FOR CALIFORNIA RESIDENTS)
14.1 Summary
Most subscriber concerns can be resolved by calling 1-800-EARTHLINK. If EarthLink is unable to resolve your complaint to your satisfaction (or if EarthLink has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed $75,000, EarthLink will pay all costs of the arbitration. Moreover, in arbitration you are entitled to recover attorneys’ fees from EarthLink to at least the same extent as you would be in court .
In addition, under certain circumstances (as explained below), EarthLink will pay you more than the amount of the arbitrator’s award and will pay your attorney (if any) his or her reasonable attorneys’ fees if the arbitrator awards you an amount that is greater than what EarthLink has offered you to settle the dispute.
14.2 Agreement to Arbitrate
EarthLink and you agree to resolve all disputes and claims between us through binding arbitration by the American Arbitration Association (“AAA”). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- Claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
- Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- Claims that may arise after the termination of this Agreement.
References to “EarthLink,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Services under this Agreement or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court rather than by arbitration if the claim qualifies for small claims court in a location where jurisdiction and venue over EarthLink and you is proper. This agreement to arbitrate does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.
You agree that, by entering into this Agreement, you and EarthLink are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this provision.
14.3 Informal Dispute Resolution Prior to Arbitration
14.3(1) Notice of Dispute
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). A Notice to EarthLink should be addressed to: EarthLink, LLC, 4001 Rodney Parham Rd., Little Rock, AR 72212, Mailstop B1F03-53A, Attn: Legal Department (Arbitration) (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). A Notice to you will be addressed to the billing address that EarthLink has on file for you.
14.3(2) Settlement Proposals
The amount of any settlement offer made by EarthLink or you will not be disclosed to the arbitrator in any arbitration between us until after the arbitrator determines the amount, if any, to which you or EarthLink is entitled.
14.3(3) Failure to Reach Resolution
If EarthLink and you do not reach an agreement to resolve the claim within 45 days after the Notice is received, you or EarthLink may commence an arbitration proceeding.
14.4 Commencement of Arbitration
You may initiate an arbitration by filing a claim form with the AAA and sending a copy of the claim form to EarthLink at the Notice Address. You can access a claim form and directions for filing at the website for AAA, https://www.adr.org. If EarthLink receives notice at the Notice Address that you have commenced arbitration and paid the filing fee to the AAA, it will promptly reimburse you for your payment of the filing fee by check to your address or by credit to your account unless your claim is for greater than $75,000. (The filing fee currently is $200 for claims under $10,000 but is subject to change by the arbitration provider. If you are unable to pay this fee, EarthLink will pay it directly upon receiving a written request from you to the Notice Address.)
14.5 Arbitration Procedures
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the AAA, as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at http://www.adr.org, or by calling the AAA at 1-800-778-7879. One arbitrator, who is selected under the AAA Rules, will conduct the arbitration. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for a court to decide. Unless EarthLink and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. The right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
14.6 Appeal
If an award issued by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the AAA by a written notice of appeal filed within 30 days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the AAA. The AAA will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within 120 days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel will be final and binding, except for any appellate right which exists under the FAA. If an award issued by the arbitrator does not exceed $75,000, any appeal rights from the award will be governed by the FAA.
14.7 Arbitration Fees
Except as otherwise provided for herein, EarthLink will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse EarthLink for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
14.8 Awards and Attorney’s Fees
If the arbitrator issues you an award that is greater than the value of EarthLink’s last written settlement offer made before an arbitrator was selected, or if the arbitrator issues you an award and EarthLink made no settlement offer, then EarthLink will pay you the amount of the awardor $2,500 (“Alternative Payment”), whichever is greater, and pay your attorney, if any, the amount of attorney’s fees incurred, and reimburse any expenses (including expert witness fees and costs) that your attorney, if any, reasonably accrues and documents with specificity for investigating, preparing, and pursuing your claim in arbitration (“Attorney Fee Award”).
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the Alternative Payment and the Attorney Fee Award at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
The right to attorneys’ fees and expenses discussed in this Section 14.8 supplements any right to attorneys’ fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys’ fees or expenses. Although under some laws EarthLink may have the right to an award of attorney’s fees and expenses if it prevails in an arbitration, EarthLink agrees that it will not seek such an award.
14.9 Waiver of Class Actions; Limits of Scope of Arbitrator’s Authority
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND EARTHLINK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and EarthLink agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision will be null and void and all disputes will be heard by a court.
14.10 Changes to Agreement to Arbitrate
Notwithstanding any provision in this Agreement to the contrary, if EarthLink makes any future change to this arbitration provision (other than a change to the Notice Address) during the term of your subscription with EarthLink, you may reject any such change by sending us written notice to the Notice Address postmarked within 30 days of the date of the change. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language in this Section 14 of this Version dated September 15, 2016.
14.11 Notice to California Residents
California residents are entitled to the following information:
The Service is provided by EarthLink, LLC, 1439 Peachtree Street NE, Atlanta, Georgia 30309.
Charges may vary depending on the type of Service.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834 or by telephone at 1-800-952-5210.
14.12 Survival
This Section 14 will survive the termination of your Service with EarthLink.
15. REVISIONS TO THIS AGREEMENT
EarthLink may revise, amend, or modify this Agreement at any time by posting the revised version of this Agreement on the EarthLink Web Site located at www.earthlink.net. The revised version will be effective on the date that it is posted as stated at the end of the revised version. The material changes to this Agreement will be noted in endnotes of the revised version. Your continued use of the Service after the date of the revised version constitutes your acceptance of all of the revisions. If you do not agree to the revisions in the revised version, your sole and exclusive remedy will be to terminate your account and use of the Service.
16. MISCELLANEOUS
You may not assign your rights or delegate any of your duties under this Agreement without the prior written consent of EarthLink, and any attempted assignment or delegation without such consent will be void. If one or more provisions of this Agreement are held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration provision in Section 14; if that prohibition is found to be unenforceable, the entire DISPUTE RESOLUTION BY BINDING ARBITRATION provision (but only the DISPUTE RESOLUTION BY BINDING ARBITRATION provision) will be null and void and the dispute will be heard by a court. EarthLink may amend or replace such unenforceable provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of EarthLink as reflected in the original provision. Nothing in this Agreement or in the understanding of the parties confers upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. EarthLink may subcontract any work, obligations or other performance required of EarthLink under this Agreement without your consent. EarthLink will not be liable for delays, damages or failures in performance because of causes beyond its reasonable control, including, but not limited to, acts of a government in its sovereign capacity, acts of war, terrorism, acts of a public enemy, fires, earthquakes, acts of God, labor disputes, strikes, work slow-downs or other labor-related activity.
Effective Date: September 30, 2017
The following endnote summarizes the material revision made in this September 30, 2017 version of this Agreement compared to the September 15, 2016 version of this Agreement.
1 EarthLink address changes throughout the Agreement.
EARTHLINK ONLINE BACKUP TERMS OF SERVICE
READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING AND USING EARTHLINK ONLINE BACKUP SOFTWARE.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
This Online Backup License Agreement (“Agreement”) governs your use of the Online Backup Service (“Service”). This Agreement is between EarthLink, LLC and its related entities (“EarthLink”) and you and applies to t he terms and conditions below and the specific terms of your billing plan. You agree to be bound by this Agreement and to use the Service in compliance with the terms of this Agreement and all applicable federal, state and local laws, rules and regulations.
IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT OR YOU CANNOT COMPLY WITH THESE TERMS AND CONDITIONS, THEN YOU SHOULD NOT USE THE SERVICE, AND YOU SHOULD CLICK THE CANCEL BUTTON; THE REGISTRATION PROCESS WILL NOT CONTINUE AND YOU WILL STOP ALL USE OF THE SERVICE AND WILL HAVE NO AUTHORITY TO USE THE SERVICE.
IF YOU ARE DEEMED TO HAVE REGISTERED FOR THE SERVICE, EARTHLINK’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON THE ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS.
IMPORTANT NOTE: The Service may be used to reproduce and store materials. It is licensed to you only for reproduction and storage of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. The Service may also be used for remote access to materials for usage between computers. Remote access of copyrighted material is only provided for lawful personal use or as otherwise legally permitted. If you are uncertain about your right to copy or permit access to any material you should contact your legal advisor.
1. TERM OF THIS AGREEMENT
The effective date of this Agreement is the date on which you subscribed to the Service. This Agreement continues until the date of termination of your Service. Sections 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 17 of this Agreement will survive the termination of this Agreement.
2. SUBSCRIPTION INFORMATION
To order and receive the Service, you acknowledge that you are 18 years of age or older, and you have legal authority to enter into this Agreement. You must provide EarthLink with a valid credit or debit card or other EarthLink approved payment methods for the Service and your billing address. You represent that all information you provided during the subscription process is accurate and complete and that you will update such information with EarthLink should any of it change.
EarthLink may accept or reject any potential subscriber to the Service in its sole discretion.
EarthLink reserves the right to verify the accuracy of the information you submit in connection with your subscription to the Service and you consent to such verification. EarthLink also reserves the right to validate the payment method information you provide at subscription and account updates, including attempting up to a $1.00 authorization to your credit or debit card which is not actually billed. To understand how EarthLink handles and protects your personal information, please see the Privacy Policy.
3. GENERAL DESCRIPTION OF THE SERVICE
Subject to EarthLink’s acceptance of your subscription to the Service, and your compliance with the terms and conditions of this Agreement, EarthLink will license the software to you that will automatically backup and store your data from your computer (“Software”) provided you successfully installed and configured the Software. EarthLink will allow you to retrieve your data files from the Service up to a maximum amount of data which can be downloaded from your account per each 24-hour period as determined by EarthLink (“Download Limit”). Your “Download Limit” is set by EarthLink, at its sole discretion, and is currently calculated by the number of bytes downloaded over the course of a 24-hour period according to the local time of EarthLink’s servers or its providers’ servers. EarthLink reserves the right to change the Download Limit calculation method without further notice. From time to time, EarthLink may offer promotions to increase your Download Limit. In the event that you desire or attempt to download more than your Download Limit through EarthLink’s servers or its providers’ servers, EarthLink reserves the right, but will have no obligation, to offer and, upon your acceptance, provide to you a higher Download Limit as part of the Service (or other EarthLink additional services and products that may be offered from time to time).
You represent that when you transmit, upload, post or submit any content, images or data using the Service you have the legal right to do so and that your use of such data or content does not violate any law (including copyright or trademark laws), any other third party rights. You are solely responsible for the content of all data you store or retrieve from, or attempt to store or retrieve from your Service account, and the Service in general, and for all transmission by you from and to your Service account. You agree that EarthLink has no responsibility for the accuracy, completeness, value or usefulness of any of your content. You agree to supervise and to accept sole responsibility and liability for any use of the Service by minors through your account. In addition, you will not download nor cause to be downloaded data in excess of your Download Limit.
You are responsible for obtaining and maintaining all computer hardware and communications equipment needed to access the Service, and for paying all third party access fees incurred while using the Service. You will use your EarthLink username and password to access the Service. You will be responsible for use of the Service by any person who uses your username and password to access the Service, whether or not you specifically authorize such person’s use or actions, including maintaining the confidentiality of your username and password. You must notify EarthLink immediately upon discovering any unauthorized use of your account information. Usernames, passwords, email addresses and IP addresses are EarthLink’s property and EarthLink may alter or replace them at any time.
EarthLink makes no guarantees as to the continuous availability of the Service or any specific feature(s) of the Service. EarthLink also reserves the right to change any of the features, content or applications of the Service at any time with or without notice to you.
4. OWNERSHIP
You acknowledge that the Service may include information, communications, code, the Software, photos, text, video, graphics, sounds, images, logos and other material and services that are owned, provided and maintained by EarthLink or its providers (“EarthLink Content”). You agree and acknowledge that notwithstanding that EarthLink may permit access to and use of the EarthLink Content and that the EarthLink Content is protected by copyrights, trademarks and proprietary rights. You may not copy, reproduce, distribute, or create derivative works from, the Content, unless expressly authorized by EarthLink.
5. LEGAL COMPLIANCE
You are solely responsible for (i) obtaining sufficient rights to the content of all data and files stored by you on EarthLink’s or its providers’ servers and (ii) ensuring that such content does not violate the Privacy Policy.
EarthLink may take any legal and technical remedies to prevent the violation of this Agreement. EarthLink and its providers have no obligation to review, inspect, edit or monitor any content, data or files stored by you on the Service or any other user of the Service, including, without limitation, for viruses, worms, “Trojan horses” or any other similar contaminating or destructive features, but may do so at any time with or without notice to you to (i) comply with laws, regulations, or governmental or legal requests; (ii) protect the overall integrity of the Service (including the EarthLink network); (iii) operate the technical aspects of the Service in a proper, effective, and reasonable manner; (iv) protect itself, its employees, or others as described in the Privacy Policy; and (v) to enforce or prevent breaches of this Agreement or other EarthLink agreements or policies.
EarthLink will only disclose information regarding your use of the Service in accordance with the Privacy Policy. EarthLink or its providers may immediately refuse, remove or disable access to any data or files stored on EarthLink’s or its providers’ servers that EarthLink or its providers reasonably believe may be illegal, may violate other EarthLink agreements or policies, or any laws or regulations, may violate the rights of any third party or otherwise may be reasonably objectionable with or without notice to you.
If you believe that, your copyright in any material, has been infringed by an EarthLink Online Backup account holder, please notify EarthLink as set forth in the Digital Millennium Copyright Act Policy.
EarthLink will comply with its obligation to report evidence of child pornography offenses to the appropriate law enforcement authorities pursuant to the Protection of Children from Sexual Predators Act. Any such materials will be forwarded to the appropriate law enforcement authorities upon discovery and public access will be disabled.
6. PROTECTION OF FILES
You are solely responsible for protecting the information on your computer such as by installing anti-virus software, updating your applications, password protecting your files, and not permitting third party access to your computer. The Service may backup files that are no longer usable due to corruption from viruses, software malfunctions or other causes that may result in you restoring files that are no longer usable.
7. DELETION OF BACKUP DATA
The Software saves a copy of each file you designate to a server operated by EarthLink or its providers. The Software scans for changes or additions to these files and then periodically creates a copy of modified or newly designated file. You will not be able to restore files that EarthLink has not completed copying or files that have been changed but not yet been backed up or not eligible for backup.
If your account for the Service expires, is terminated, is not renewed, or is otherwise discontinued for any reason, EarthLink and its providers may, without notice, delete or deny you access to any of your backup data that may remain in their possession or control.
You agree that if you mark a file to no longer be backed up, delete a file from your computer, or terminate or allow your trial or license to terminate, non-renew, or otherwise lapse for any reason, that these files may not be available to you should you wish to restore them.
You agree that EarthLink and its providers may retain (but will have no obligation to retain) your backup data for a period after your trial or license has been terminated, expired, or otherwise lapsed, as part of EarthLink’s marketing to you the opportunity to purchase, renew, or extend a license.
8. PROVISIONING, BILLING AND PAYMENT
You agree to pay the monthly fees in your billing plan for the Service (“Fees”) and to pay any applicable taxes. All payments must be made in US dollars.
You will be able to use the Service for any consecutive monthly period that has been paid in advance as described in the acceptance materials that you received as part of you sales transaction or on your order confirmation. For example, if your billing cycle begins on the sixth day of the month, then your payment due date (i.e. the date that the amount of your full monthly Service fee, including any and all applicable taxes, must be received by EarthLink) will be on the fifth day of the next month and of each month thereafter.
Charges may be billed on or after your billing cycle date to your method of payment on file each month for the Service including any additional charges incurred (e.g. usage, taxes and fees). EarthLink is not responsible for any fees resulting from charges billed by EarthLink including, but not limited to, overdrawn accounts or exceeding credit card limits.
If you provided EarthLink with a valid credit or debit card, you agree to maintain valid and current credit or debit card information with EarthLink at all times. If you authorized EarthLink to automatically deduct (“ACH Debit“) your monthly Service fees and any other charges, fees, or taxes billed to you, from your checking or savings bank account, then you hereby reaffirm your agreement to the Recurring Automatic Bank Draft Authorization Agreement . You acknowledge and agree that you authorize EarthLink and that EarthLink does not need to obtain any additional authorization from you for any recurring payments or automatic billing options. In addition, if your credit or debit card company provides updated credit or debit card information to EarthLink, you acknowledge that EarthLink does not need to obtain authorization from you for EarthLink to use such information to update your credit or debit card.
If payment by check has been accepted by EarthLink, then payments by check must be received by EarthLink by the due date listed in your monthly paper invoice. EarthLink will charge a processing fee each time you pay your monthly billing invoice. When you pay your fees by check, you also authorize EarthLink to electronically process your payment. If your check is processed electronically, your checking account may be debited on the same day that EarthLink receives your check and neither your check nor a copy of your check will be included with your checking account statement. In addition to your monthly paper invoice, you may request that the monthly invoice also be sent to you via your Contact Email Address or if you designated a different billing email address, to such billing email address. EarthLink will charge you an account fee for each such paper invoice.
EarthLink will charge a fee for returned checks or returned bank drafts from your financial institution.
EarthLink will email an e-invoice to your primary EarthLink or PeoplePC email address selected by or assigned to you during the subscription process (“Contact Email Address”) each month or if you designated a different billing email address, EarthLink will email the e-invoice to such billing email address each month. You may request through https://myaccount.earthlink.net/cam/billing_info.jsp or by calling EarthLink Customer Service that EarthLink mail a paper invoice to your billing mailing address each month. EarthLink will charge your account a fee for each paper invoice. If you elect to have EarthLink mail you your monthly invoice, you may request that EarthLink also email your monthly invoice your Contact Email Address or if you designated a different billing email address , to such billing email address. There is no charge for e-invoices.
Your account will be automatically inactivated if you put a stop payment on your account with your financial institution in connection with the payment of your monthly bill.
All charges are considered valid unless disputed in writing within 30 days of the billing date and mailed to1:
EarthLink, LLC
Customer Service
1439 Peachtree Street NE
Atlanta, Georgia 30309
Adjustments will not be made for charges that are disputed more than 30 days after the billing date.
EarthLink reserves the right (i) to change the fees associated with your Service and institute new fees upon email notice at least 30 days prior to the effective date of such new fee to your Contact Email Address and (ii) to change the fees associated with your account upon email notice at least 30 days prior to the effective date of such new fee to your Contact Email Address or your billing email address if different from your Contact Email address.
EarthLink may use various means to recover monies due. If EarthLink retains a collection agency or takes legal action to collect monies due on your account, you agree to pay all costs and expenses of collection incurred by EarthLink, which may include reasonable attorney’s fees and collection agency fees which may be based on a percentage of the amount owed, up to a maximum of 25%, where permitted by applicable law.
9. CANCELLATION AND TERMINATION
You may cancel your Service only as follows:
Telephone Cancellation for EarthLink accounts: 1-888- 327-8454
Telephone Cancellation for PeoplePC accounts: 1-866-772-6277
Fax Cancellation for both EarthLink and PeoplePC accounts: 1-404-795-1034 include your account number and current telephone number.
Mail Cancellation for both EarthLink and PeoplePC accounts: Send registered or certified mail, return receipt requested to:
EarthLink, LLC
Cancel EarthLink Online Backup Service
1439 Peachtree Street NE
Atlanta, Georgia 30309
*Include your account number and current telephone number.
EarthLink does NOT accept cancellations by email.
EarthLink will issue a confirmation number to you by email as proof of cancellation of your Service. Accounts are set to close at the end of the current billing period. EarthLink does not grant refunds or credits for any prior use including partial use during the last month prior to cancellation. If you cancel by one of the prescribed methods listed above and are mistakenly billed for your Service after the end of the billing period, EarthLink will refund any erroneous charges upon proof of such cancellation.
EarthLink may terminate your account for the Service at any time for any reason, including, without limitation, if (i) your account is delinquent because charges on your method of payment were refused for any reason, (ii) you failed to make payment when due or you did not provide EarthLink with your credit or debit card’s expiration date or expiration date of any other method of payment before the existing expiration date; (iii) EarthLink, in its sole discretion, believes you have breached this Agreement or any other EarthLink agreements or policies; or (iv) your use of the Service is prohibited by law. A termination notice will be sent to you via (i) your Contact Email Address or (ii) U.S. Mail to the billing address for your EarthLink account. On the inactivation date of your Service, without further notice to you, your Service will be terminated.
Upon expiration or termination, you will immediately cease all use of the Service and any documentation. Termination is not an exclusive remedy and all other remedies will be available whether or not the license is terminated.
If you cancel your account for the Service, you will be able to use the Service until the day before your next billing date unless you specified a closing date prior to the day before your next billing period. After such date, access to the Service will no longer be possible, any files you stored through the Service will be deleted and any unused storage remaining will be forfeited.
EarthLink does not offer refunds for unused time or storage. EarthLink does not grant refunds or credits for any prior use including partial use of the Service during the last month prior to cancellation.
10. WARRANTY DISCLAIMER
THE SERVICE IS PROVIDED “ON AN AS IS” AND “AS AVAILABLE” BASIS. EARTHLINK, ITS PROVIDERS AND SUPPLIERS DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. EARTHLINK, ITS PROVIDERS AND ITS SUPPLIERS MAKE NO EXPRESS WARRANTIES REGARDING THE SERVICE AND WAIVE ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EARTHLINK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND VENDORS (COLLECTIVELY “EARTHLINK PARTIES”) WILL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS IN CONNECTION WITH THE SERVICE RESULTING FROM: (I) AVAILABILITY OR QUALITY WITHIN THE COVERAGE AREA REGARDLESS OF THE CAUSE(S) OF THE PROBLEM; (II) OTHER USERS ACCESSING YOUR DEVICE; (III) VARIATIONS IN THE SPEED OR BANDWIDTH AVAILABILITY TO EACH DEVICE CONNECTED TO THE EARTHLINK NETWORK; (IV) SECURITY BREACHES; (V) EAVESDROPPING; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (VI) YOUR RELIANCE ON OR USE OF THE SERVICE ; (VII) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE), DELETION OF FILES, ERRORS, OR DEFECTS REGARDLESS OF WHETHER YOUR DATA IS MAINTAINED ON THE EARTHLINK SERVERS OR YOUR DEVICE(S); (VIII) DELAYS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE OF THE SERVICE ; (IX) USE OF THE SERVICE BY YOU OR A THIRD PARTY THAT INFRINGES A THIRD PARTY’S COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET , CONFIDENTIALITY, PRIVACY, OTHER INTELLECTUAL PROPERTY, PROPRIETARY, OR CONTRACTUAL RIGHTS; OR (X) ACCURACY, COMPLETENESS, AND USEFULNESS OF ANY THIRD PARTY PRODUCTS, SERVICES OR INFORMATION OR THE MERCHANTABILITY OF SUCH ITEMS (INCLUDING ANY SUCH ITEMS OFFERED THROUGH CO-BRANDED WEB SITES LINKED FROM THE EARTHLINK WEB SITES).
THE FOREGOING LIMITATIONS APPLY TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF THE EARTHLINK PARTIES WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO THE CAUSE OF ACTION AGAINST ANY EARTHLINK PARTY IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE. YOUR EXCLUSIVE AND ONLY REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
THE CUMULATIVE LIABILITY OF ANY EARTHLINK PARTY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICE AND THE EARTHLINK MODEM WILL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM.
YOU MAY HAVE OTHER RIGHTS UNDER CERTAIN LAWS IN CERTAIN STATES WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.
11. INDEMNIFICATION
You agree to defend, indemnify and hold the EarthLink Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages including, but not limited to, direct, indirect and consequential damages, attorney’s fees and expenses that an EarthLink Party may sustain or incur by reason of your use or misuse of the Service or the use or misuse of the Service by anyone else through your account including, but not limited to, use or misuse of the Service (i) in violation of applicable laws or regulations or the terms of this Agreement or any other EarthLink agreement or policy; (ii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with such use or misuse; or (iii) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible property (including data).
12. ELECTRONIC COMMUNICATIONS AND PHONE COMMUNICATIONS
12.1 Electronic Communications
You consent to receive notices, documents, disclosures and other communications about your account or EarthLink Service from EarthLink (“Communications”) in an electronic format to your Contact Email Address and agree that the Communications provided to you by EarthLink electronically will be deemed a writing. If you do not want to receive Communications from EarthLink electronically or if you withdraw your consent to receive such Communications electronically, then you must stop using the Service. The withdrawal of your consent will not affect the legal validity and enforceability of any electronic Communications provided or business transacted between EarthLink and you prior to the time you withdraw your consent.
12 . 2 Phone Calling and Texting
In addition, you hereby agree that your use of the Service constitutes your express written consent to receive automated and manually dialed calls, text messages and pre-recorded messages at the phone number(s) that you provide EarthLink in connection with your subscription to or use of the Service. Consent to receiving autodialed calls, text messages, and/or pre-recorded messages from EarthLink is not required to purchase products or services from EarthLink.
12.3 Changing Your Contact Preferences
You may exercise your option not to receive any marketing communications from and/or automated or manually dialed calls, text messages and pre-recorded messages from EarthLink (i) for EarthLink Services, by going directly to https://myaccount.earthlink.net/cam/contactinfo.jsp or calling EarthLink customer service, or (ii) for the PeoplePC DSL Service, by going directly to https://myaccount.peoplepc.com/cam/contactinfo.jsp or calling PeoplePC customer service . You also may text STOP in response to any text message from EarthLink to stop receiving text messages from EarthLink .
13. CUSTOMER SERVICE AND TECHNICAL SUPPORT
To contact EarthLink Customer Service via telephone or live chat, go to http://www.earthlink.net/about/contact/ for the EarthLink Services and http://psc.peoplepc.com/contact/contact.php for the PeoplePC Services.
For online customer support in connection with billing issues, go to https://support.earthlink.net/ if you have an EarthLink account or go to https://support.peoplepc.com/ if you have a PeoplePC account.
To contact Customer Service about a billing issue via telephone or live chat, go to http://www.earthlink.net/about/contact/ if you have an EarthLink account or https://support.peoplepc.com/contact/contact.php if you have a PeoplePC account.
EarthLink does not provide telephone technical support. For customer support in connection with the use of the Service other than billing issues, EarthLink will provide support services for the Service and associated software via e-mail. EarthLink does not have any obligation to provide hard-copy documentation, upgrades, enhancements, or modifications.
14. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
15. DISPUTE RESOLUTION BY BINDING ARBITRATION (INCLUDING IMPORTANT INFORMATION FOR CALIFORNIA RESIDENTS)
15.1 Summary
Most subscriber concerns can be resolved by calling 1-800-EARTHLINK. If EarthLink is unable to resolve your complaint to your satisfaction (or if EarthLink has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed $75,000, EarthLink will pay all costs of the arbitration. Moreover, in arbitration you are entitled to recover attorneys’ fees from EarthLink to at least the same extent as you would be in court.
In addition, under certain circumstances (as explained below), EarthLink will pay you more than the amount of the arbitrator’s award and will pay your attorney (if any) his or her reasonable attorneys’ fees if the arbitrator awards you an amount that is greater than what EarthLink has offered you to settle the dispute.
15.2 Agreement to Arbitrate
EarthLink and you agree to resolve all disputes and claims between us through binding arbitration by the American Arbitration Association (“AAA”). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- Claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
- Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- Claims that may arise after the termination of this Agreement.
References to “EarthLink,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Service under this Agreement or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court rather than by arbitration if the claim qualifies for small claims court in a location where jurisdiction and venue over EarthLink and you is proper. This agreement to arbitrate does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.
You agree that, by entering into this Agreement, you and EarthLink are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this provision.
15.3 Informal Dispute Resolution Prior to Arbitration
15.3(1) Notice of Dispute
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). A Notice to EarthLink should be addressed to: EarthLink, LLC, 4001 Rodney Parham Rd., Little Rock, AR 72212, Mailstop B1F03-53A, Attn: Legal Department (Arbitration) (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). A Notice to you will be addressed to the billing address that EarthLink has on file for you. s
15.3(2) Settlement Proposals
The amount of any settlement offer made by EarthLink or you will not be disclosed to the arbitrator in any arbitration between us until after the arbitrator determines the amount, if any, to which you or EarthLink is entitled.
15.3(3) Failure to Reach Resolution
If EarthLink and you do not reach an agreement to resolve the claim within 45 days after the Notice is received, you or EarthLink may commence an arbitration proceeding.
15.4 Commencement of Arbitration
You may initiate an arbitration by filing a claim form with the AAA and sending a copy of the claim form to EarthLink at the Notice Address. You can access a claim form and directions for filing at the website for AAA, https://www.adr.org. If EarthLink receives notice at the Notice Address that you have commenced arbitration and paid the filing fee to the AAA, it will promptly reimburse you for your payment of the filing fee by check to your address or by credit to your account unless your claim is for greater than $75,000. (The filing fee currently is $200 for claims under $10,000 but is subject to change by the arbitration provider. If you are unable to pay this fee, EarthLink will pay it directly upon receiving a written request from you to the Notice Address.)
15.5 Arbitration Procedures
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the AAA, as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at https://www.adr.org, or by calling the AAA at 1-800-778-7879. One arbitrator, who is selected under the AAA Rules, will conduct the arbitration. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for a court to decide. Unless EarthLink and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. The right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
15.6 Appeal
If an award issued by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the AAA by a written notice of appeal filed within 30 days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the AAA. The AAA will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within 120 days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel will be final and binding, except for any appellate right which exists under the FAA. If an award issued by the arbitrator does not exceed $75,000, any appeal rights from the award will be governed by the FAA.
15.7 Arbitration Fees
Except as otherwise provided for herein, EarthLink will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse EarthLink for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
15.8 Awards and Attorney’s Fees
If the arbitrator issues you an award that is greater than the value of EarthLink’s last written settlement offer made before an arbitrator was selected, or if the arbitrator issues you an award and EarthLink made no settlement offer, then EarthLink will pay you the amount of the award or $2,500 (“Alternative Payment”), whichever is greater, and pay your attorney, if any, the amount of attorney’s fees incurred, and reimburse any expenses (including expert witness fees and costs) that your attorney, if any, reasonably accrues and documents with specificity for investigating, preparing, and pursuing your claim in arbitration (“Attorney Fee Award”).
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the Alternative Payment and the Attorney Fee Award at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
The right to attorneys’ fees and expenses discussed in this Section 18.8 supplements any right to attorneys’ fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys’ fees or expenses. Although under some laws EarthLink may have the right to an award of attorney’s fees and expenses if it prevails in an arbitration, EarthLink agrees that it will not seek such an award.
15.9 Waiver of Class Actions; Limits of Scope of Arbitrator’s Authority
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND EARTHLINK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and EarthLink agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision will be null and void and all disputes will be heard by a court.
15.10 Changes to Agreement to Arbitrate
Notwithstanding any provision in this Agreement to the contrary, if EarthLink makes any future change to this arbitration provision (other than a change to the Notice Address) during the term of your subscription with EarthLink, you may reject any such change by sending us written notice to the Notice Address postmarked within 30 days of the date of the change. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language in this Section 15 of this Version dated September 15, 2016.
15.11 Notice to California Residents
California residents are entitled to the following information:
The Service is provided by EarthLink, LLC, 1439 Peachtree Street NE, Atlanta, Georgia 30309.
Charges may vary depending on the type of Service.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834 or by telephone at 1-800-952-5210.
15.12 Survival
This Section 15 will survive the termination of your Service with EarthLink.
16. REVISIONS TO THIS AGREEMENT
EarthLink may revise, amend, or modify this Agreement at any time by posting the revised version of this Agreement on the EarthLink Web Site located at www.earthlink.net which is also linked from www.peoplepc.com. The revised version will be effective on the date that it is posted as stated at the end of the revised version. The material changes to this Agreement will be noted in endnotes of the revised version. Your continued use of the Service after the date of the revised version constitutes your acceptance of all of the revisions. If you do not agree to the revisions in the revised version, your sole and exclusive remedy will be to terminate your account and use of the Service.
17. MISCELLANEOUS
You may not assign your rights or delegate any of your duties under this Agreement without the prior written consent of EarthLink, and any attempted assignment or delegation without such consent will be void. If one or more provisions of this Agreement are held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration provision in Section 15; if that prohibition is found to be unenforceable, the entire DISPUTE RESOLUTION BY BINDING ARBITRATION provision (but only the DISPUTE RESOLUTION BY BINDING ARBITRATION provision) will be null and void and the dispute will be heard by a court. EarthLink may amend or replace such unenforceable provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of EarthLink as reflected in the original provision. Nothing in this Agreement or in the understanding of the parties confers upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. EarthLink may subcontract any work, obligations or other performance required of EarthLink under this Agreement without your consent. EarthLink will not be liable for delays, damages or failures in performance because of causes beyond its reasonable control, including, but not limited to, acts of a government in its sovereign capacity, acts of war, terrorism, acts of a public enemy, fires, earthquakes, acts of God, labor disputes, strikes, work slow-downs or other labor-related activity.
Effective Date: September 30, 2017
The following endnote summarizes the material revision made in this September 30, 2017 version of this Agreement compared to the September 15, 2016 version of this Agreement.
1 EarthLink address changes throughout the Agreement.
EARTHLINK TRUEVOICE SERVICE AGREEMENT
READ THIS SERVICE AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE EARTHLINK TRUEVOICE SERVICE.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. AGREEMENT
This trueVoice Service Agreement (“Agreement”) governs your use of the EarthLink trueVoice Service (“Service”). This Agreement is between EarthLink, LLC and its related entities (“EarthLink”). This Agreement consists of the terms and conditions below, the specific terms of your billing plan for the Service.
By establishing an account for the Service or using the Service, you agree to be bound by this Agreement and to use the Service in compliance with the terms of this Agreement and all applicable federal, state and local laws, rules and regulations. This Agreement governs both the Service and the analog telephone adapter or any other IP connection device (“trueVoice Device”) used in conjunction with the Service.
You represent that all information you provided during the subscription process for the Service is accurate and complete and that you will update such information with EarthLink should it change.
2. TERM OF THIS AGREEMENT
The effective date of this Agreement is the date on which you subscribed to the Service. This Agreement continues until the date of termination of your Service. Sections 7, 8, 10, 11, 12, 14, 15 and 17 of this Agreement will survive the termination of this Agreement.
3 . SUBSCRIPTION INFORMATION
To order and receive the Service, you acknowledge that you are 18 years of age or older, and you have legal authority to enter into this Agreement. You must provide EarthLink with (i) a valid credit or debit card or other EarthLink approved payment method for the Service; (ii) your billing address; and (iii) your shipping address, if different from your billing address. You represent that all information you provided during the subscription process is accurate and complete and that you will update such information with EarthLink should any of it change.
The Service must be available to your location. EarthLink may accept or reject any potential subscriber to the Service in its sole discretion. Even if EarthLink has accepted your order, EarthLink cannot guarantee that the Service can be provisioned to your address.
EarthLink reserves the right to verify the accuracy of the information you submit in connection with your subscription to the Service and you consent to such verification. EarthLink also reserves the right to validate the payment method information you provide at subscription and account updates, including attempting up to a $1.00 authorization to your credit or debit card which is not actually billed. To understand how EarthLink handles and protects your personal information, please see the Privacy Policy.
4. EMERGENCY SERVICES DIALING 911
The Service supports E911 access to emergency services however there are important differences from traditional 911 services. You must give EarthLink the physical location where you will be using the Service for E911 service to function properly. If you move the trueVoice Device to a new location, you must register the new location with EarthLink for E911 service to function properly. You hereby acknowledge that registering your current physical location is your responsibility.
Your 911 Dialing feature may not be operational until you receive confirmation from EarthLink that E911 has been activated.
E911 will not function under any one of the following circumstances:
- Before the Service is activated by EarthLink and notice is sent.
- In the event of a power failure or disruption. Following a power failure or disruption, you may need to reset or reconfigure the trueVoice Device prior to utilizing the Service.
- Service outages or suspensions or terminations of service by your broadband provider or ISP.
- Service outages due to suspension or termination of your account for the Service.
- Your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service.
- Other Service Outages that occur for a variety of reasons.
- Changing your number or adding or porting new numbers to your account without successfully registering your location of use for each changed, newly added or newly ported phone number.
There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Service as compared to traditional 911 dialing over traditional public telephone networks.
EarthLink does not have any control over whether, or the manner in which, calls using EarthLink’s 911 Dialing service are answered or addressed by any local emergency response center. EarthLink disclaims all responsibility for the conduct of local emergency response centers and the national emergency calling center. EarthLink disclaims any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither EarthLink nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to EarthLink’s 911 Dialing service unless such claims or causes of action arose from EarthLink’s gross negligence, recklessness or willful misconduct.
You will defend, indemnify, and hold harmless EarthLink, its officers, directors, employees, subsidiaries, affiliates, suppliers and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys’ fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel.
If you are not comfortable with the limitations of the 911 Dialing service, you should consider having an alternate means of accessing traditional 911 or E911 services or terminating the Service.
5. GENERAL DESCRIPTION OF AND RESTRICTIONS ON THE SERVICE
The current prices and features of the Service may be obtained by calling (888) 327-8454.
The Service will be used in a fixed location in certain areas of the United States. The Service is for residential use only. The Service should not be used as a mobile, business or international voice service. You will not resell or transfer the Service or the trueVoice Device to another party without EarthLink’s prior written consent. EarthLink reserves the right to immediately terminate or modify your Service if EarthLink determines, in its sole and absolute discretion that your use of the Service or the trueVoice Device is, or at any time was, inconsistent with normal fixed residential usage patterns. You will use the Service and the trueVoice Device only for lawful purposes. From time to time EarthLink may impose reasonable rules and regulations regarding the use of the Service.
The Service quality can vary depending on location, line quality, inside wiring, and other factors beyond the control of EarthLink. EarthLink does not guarantee call quality and your sole remedy is to cancel the Service.
The Service may not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911 which is provided for elsewhere in this Agreement) services in one or more (or all) service areas. The phone numbers you obtain from us will not be listed in any telephone directories. Phone numbers transferred from your local phone company may, however, be listed. As a result, someone with your phone number may not be able to utilize a reverse directory to lookup your address.
The Service may not be compatible with home security systems. You may be required to maintain a telephone connection through your local exchange carrier in order to use any alarm monitoring functions for any security system installed in your home or business. You are responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.
EarthLink also reserves the right to change any of the features, content or applications of the Service at any time with or without notice to you.
In the event that the trueVoice Device for the Service does not operate properly, contact EarthLink at (888) 327-8454. EarthLink will ship a new trueVoice Device to you. EarthLink will only charge you for the shipping fees for the trueVoice Device.
6. BILLING AND PAYMENT
You agree to pay the recurring monthly fees in your billing plan due in advance of the month incurred. Your bill also will include (i) taxes, surcharges, and fees required by any applicable government entity (ii) shipping and handling fees, if applicable; and (iii) the method of payment fees, if applicable. All payments must be made in US dollars.
Charges may be billed on or after your billing cycle date to your method of payment on file each month for the Service including any additional charges incurred, taxes and fees. EarthLink is not responsible for any fees resulting from charges billed by EarthLink including, but not limited to, overdrawn accounts or exceeding credit card limits.
If you provided EarthLink with a valid credit or debit card, you agree to maintain valid and current credit or debit card information with EarthLink at all times. If you authorized EarthLink to automatically deduct (“ACH Debit“) your monthly Service fees and any other charges, fees, or taxes billed to you, from your checking or savings bank account, then you hereby reaffirm your agreement to the Recurring Automatic Bank Draft Authorization Agreement. You acknowledge and agree that you authorize EarthLink and that EarthLink does not need to obtain any additional authorization from you for any recurring payments or automatic billing options. In addition, if your credit or debit card company provides updated credit or debit card information to EarthLink, you acknowledge that EarthLink does not need to obtain authorization from you for EarthLink to use such information to update your credit or debit card.
If payment by check has been accepted by EarthLink, then payments by check must be received by EarthLink by the due date listed in your monthly paper invoice. EarthLink will charge a processing fee each time you pay your monthly billing invoice . When you pay your fees by check, you also authorize EarthLink to electronically process your payment. If your check is processed electronically, your checking account may be debited on the same day that EarthLink receives your check and neither your check nor a copy of your check will be included with your checking account statement.
EarthLink will charge a fee for returned checks or returned bank drafts from your financial institution.
EarthLink will email an e-invoice to your primary EarthLink email address selected by or assigned to you during the subscription process (“Contact Email Address”) each month or if you designated a different billing email address, EarthLink will email the e-invoice to such billing email address each month. You may request through https://myaccount.earthlink.net/cam/billing_info.jsp or by calling EarthLink Customer Service that EarthLink mail a paper invoice to your billing mailing address each month. EarthLink will charge your account a fee for each paper invoice. If you elect to have EarthLink mail you your monthly invoice, you may request that EarthLink also email your monthly invoice your Contact Email Address or if you designated a different billing email address , to such billing email address. There is no charge for e-invoices.
Your account will be automatically inactivated if you put a stop payment on your account with your financial institution in connection with the payment of your monthly bill.
All charges are considered valid unless disputed in writing within 30 days of the billing date and mailed to :
EarthLink, LLC
Customer Service
1439 Peachtree Street NE
Atlanta, Georgia 30309
Adjustments will not be made for charges that are disputed more than 30 days after the billing date.
EarthLink reserves the right (i) to change the fees associated with your Service and institute new fees (e.g. equipment fees) upon email notice at least 30 days prior to the effective date of such new fee to your Contact Email Address and (ii) to change the fees associated with your account upon email notice at least 30 days prior to the effective date of such new fee to your Contact Email Address or your billing email address if different from your Contact Email address.
EarthLink may use various means to recover monies due. If EarthLink retains a collection agency or takes legal action to collect monies due on your account, you agree to pay all costs and expenses of collection incurred by EarthLink, which may include reasonable attorney’s fees and collection agency fees which may be based on a percentage of the amount owed, up to a maximum of 25%, where permitted by applicable law.
7. CANCELLATION AND TERMINATION
You may cancel your Service only as follows:
Telephone Cancellation: 1-888-327-8454
Fax Cancellation: 1- 404-795-1034. Please include your account number and a current phone number.
Mail Cancellation: Send registered or certified mail, return receipt requested to:
EarthLink, LLC
Cancel trueVoice
1439 Peachtree Street NE
Atlanta, Georgia 30309
EarthLink does not accept cancellations by email. You can specify the date you want your Service canceled.
In the event that you port out (transfer) your existing telephone number to another carrier and you do not contact EarthLink that you are cancelling your Service, EarthLink will use such port out date as the date of your cancellation of the Service.
EarthLink will issue a confirmation number to you by email as proof of cancellation of your Service. Accounts are set to close at the end of the current billing period. EarthLink does not grant refunds or credits for any prior use including partial use during the last month prior to cancellation. If you cancel by one of the prescribed methods listed above and are mistakenly billed for your Service after the end of the billing period, EarthLink will refund any erroneous charges upon proof of such cancellation.
EarthLink may terminate your account for the Service at any time for any reason, including, without limitation, if (i) your account is delinquent because charges on your method of payment were refused for any reason, (ii) you failed to make payment when due or you did not provide EarthLink with your credit or debit card’s expiration date or expiration date of any other method of payment before the existing expiration date; (iii) EarthLink, in its sole discretion, believes you have breached this Agreement or any other EarthLink agreements or policies; or (iv) your use of the Service is prohibited by law . A t ermination notice will be sent to you via (i) your Contact Email Address or (ii) U.S. Mail to the billing address for your EarthLink account. Accounts are set to close at the end of the current billing period. If your account for the Service is cancelled by EarthLink due to non-payment and then your Service is reactivated at a later date, EarthLink will bill you an account reactivation fee.
8. NUMBER TRANSFER ON SERVICE TERMINATION
On the inactivation date of your Service, EarthLink may, in its sole and absolute discretion, release to your new service provider the telephone number that you ported (transferred or moved over) to EarthLink from your previous service provider and used in connection with your Service if:
- such new service provider is able to accept such number;
- your account has been properly terminated;
- your account is completely current, including payment for all charges and applicable termination fees; and
- you request the transfer upon terminating your account with EarthLink.
9. MONITORING THE SERVICE
EarthLink has no obligation to monitor the Service but may do so to (i) comply with laws, regulations, or governmental or legal requests; (ii) protect the overall integrity of the Service (including the EarthLink network); (iii) operate the technical aspects of the Service in a proper, effective, and reasonable manner; (iv) protect itself, its employees, or others as described in the Privacy Policy; and (v) enforce or prevent breaches of this Agreement or other EarthLink agreements or policies.
EarthLink will use commercially reasonable efforts to schedule any maintenance outages in a way that minimizes the impact on subscribers; however, EarthLink cannot guarantee that your Service will not be interrupted and cannot always provide advance notice of such outages.
10. GENERAL DISCLAIMERS AND WARRANTIES
CERTAIN TRUEVOICE DEVICES MAY BE SUBJECT TO THIRD PARTY WARRANTIES, WHICH MAY BE PASSED THROUGH EARTHLINK TO YOU AT NO ADDITIONAL CHARGE. EARTHLINK WILL COMPLY WITH ALL REASONABLE REQUIREMENTS NECESSARY TO AFFECT THE PASS-THROUGH OF THE WARRANTY TO YOU. AT ITS SOLE OPTION WITHIN THE INITIAL TERM OF YOUR BILLING PLAN, EARTHLINK OR ITS AGENT MAY REPLACE A DEFECTIVE HARDWARE ON BEHALF OF THE MANUFACTURER, PROVIDED YOU FOLLOW ALL APPLICABLE PROCEDURES AND OBTAIN A RETURN MATERIALS AUTHORIZATION (RMA) NUMBER. THIS WARRANTY DOES NOT COVER DEFECTS RESULTING FROM ACTS OUTSIDE OF EARTHLINK’S CONTROL, USE CONTRARY TO SPECIFICATIONS OR INSTRUCTIONS, OR REPAIR OR MODIFICATION BY ANYONE OTHER THAN EARTHLINK OR ITS CONTRACTOR. EARTHLINK RESERVES THE RIGHT TO MODIFY THIS WARRANTY AT ANY TIME. EARTHLINK WILL NOT BE RESPONSIBLE FOR ANY TRUEVOICE DEVICE DAMAGED BY ANY NATURALLY OCCURRING EVENT SUCH AS LIGHTNING, FLOOD, OR EARTHQUAKE OR OTHER EVENTS OUT OF EARTHLINK’S CONTROL SUCH AS FIRE, POWER SURGES, TERRORISM OR THE OTHER ACTS OF THIRD PARTIES. YOU ACKNOWLEDGE THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EARTHLINK AND ITS SUPPLIERS AND VENDORS DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS.
EARTHLINK AND ITS SUPPLIERS AND VENDORS MAKE NO EXPRESS WARRANTIES REGARDING THE SERVICE AND WAIVE ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EARTHLINK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND VENDORS (COLLECTIVELY “EARTHLINK PARTIES”) WILL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS IN CONNECTION WITH THE SERVICE RESULTING FROM: ( I) SERVICE AVAILABILITY OR QUALITY, REGARDLESS OF THE CAUSES OF THE PROBLEMS; (II) OTHER USERS ACCESSING YOUR SERVICE; (III) SECURITY BREACHES; (IV) EAVESDROPPING; (V) DELAYS OR ERRORS IN OPERATION, TRANSMISSIONS, OR ANY FAILURE OF PERFORMANCE OF THE SERVICE; (VI) YOUR RELIANCE ON OR USE OF THE SERVICE; OR (VII) THE USE OF THE SERVICE OR THE TRUEVOICE DEVICE BY YOU OR A THIRD PARTY THAT INFRINGES A THIRD PARTY’S COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OTHER INTELLECTUAL PROPERTY, PROPRIETARY, OR CONTRACTUAL RIGHTS .
THE FOREGOING LIMITATIONS APPLY TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF THE EARTHLINK PARTIES WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO THE CAUSE OF ACTION AGAINST ANY EARTHLINK PARTY IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE. YOUR EXCLUSIVE AND ONLY REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
THE CUMULATIVE LIABILITY OF ANY EARTHLINK PARTY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM.
YOU MAY HAVE OTHER RIGHTS UNDER CERTAIN LAWS IN CERTAIN STATES WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.
11. INDEMNIFICATION
You agree to defend, indemnify and hold the EarthLink Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages including, but not limited to, direct, indirect and consequential damages, attorney’s fees and expenses that an EarthLink Party may sustain or incur by reason of your use or misuse of the Service or the use or misuse of the Service by anyone else through your account including, but not limited to, use or misuse of the Service (i) in violation of applicable laws, regulations or the terms of this Agreement or any other EarthLink agreement or policy; (ii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with such use or misuse; or (iii) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible property (including data).
12. ELECTRONIC COMMUNICATIONS AND PHONE COMMUNICATIONS
12.1 Electronic Communications
You consent to receive notices, documents, disclosures and other communications about your account or EarthLink Service from EarthLink (“Communications”) in an electronic format to your Contact Email Address and agree that the Communications provided to you by EarthLink electronically will be deemed a writing. If you do not want to receive Communications from EarthLink electronically or if you withdraw your consent to receive such Communications electronically, then you must stop using the Service. The withdrawal of your consent will not affect the legal validity and enforceability of any electronic Communications provided or business transacted between EarthLink and you prior to the time you withdraw your consent.
12.2 Phone Calling and Texting
In addition, you hereby agree that your use of the Service constitutes your express written consent to receive automated and manually dialed calls, text messages and pre-recorded messages at the phone number(s) that you provide EarthLink in connection with your subscription to or use of the Service. Consent to receiving autodialed calls, text messages, and/or pre-recorded messages from EarthLink is not required to purchase products or services from EarthLink.
12.3 Changing Your Contact Preferences
You may exercise your option not to receive any marketing communications from and/or automated or manually dialed calls, text messages and pre-recorded messages from EarthLink by going directly to https://myaccount.earthlink.net/cam/contactinfo.jsp or calling EarthLink customer service. You also may text STOP in response to any text message from EarthLink to stop receiving text messages from EarthLink.
13. CUSTOMER SERVICE AND TECHNICAL SUPPORT
For online customer support for your Service including certain connection issues, billing issues, and online account maintenance, go to http://support.earthlink.net/. EarthLink may provide technical support for the trueVoice Device.
To contact EarthLink Customer Service via telephone or live chat, go to http://www.earthlink.net/about/contacts/.
14. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
15. DISPUTE RESOLUTION BY BINDING ARBITRATION (INCLUDING IMPORTANT INFORMATION FOR CALIFORNIA RESIDENTS)
15.1 Summary
Most subscriber concerns can be resolved by calling 1-800-EARTHLINK. If EarthLink is unable to resolve your complaint to your satisfaction (or if EarthLink has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted . For any non-frivolous claim that does not exceed $75,000, EarthLink will pay all costs of the arbitration. Moreover, in arbitration you are entitled to recover attorneys’ fees from EarthLink to at least the same extent as you would be in court.
In addition, under certain circumstances (as explained below), EarthLink will pay you more than the amount of the arbitrator’s award and will pay your attorney (if any) his or her reasonable attorneys’ fees if the arbitrator awards you an amount that is greater than what EarthLink has offered you to settle the dispute.
15.2 Agreement to Arbitrate
EarthLink and you agree to resolve all disputes and claims between us through binding arbitration by the American Arbitration Association (“AAA”). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- Claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
- Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- Claims that may arise after the termination of this Agreement.
References to “EarthLink,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Services under this Agreement or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court rather than by arbitration if the claim qualifies for small claims court in a location where jurisdiction and venue over EarthLink and you is proper. This agreement to arbitrate does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.
You agree that, by entering into this Agreement, you and EarthLink are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this provision.
15.3 Informal Dispute Resolution Prior to Arbitration
15.3(1) Notice of Dispute
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). A Notice to EarthLink should be addressed to: EarthLink, LLC, 4001 Rodney Parham Rd., Little Rock, AR 72212, Mailstop B1F03-53A, Attn: Legal Department (Arbitration) (“Notic e Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). A Notice to you will be addressed to the billing address that EarthLink has on file for you.
15.3(2) Settlement Proposals
The amount of any settlement offer made by EarthLink or you will not be disclosed to the arbitrator in any arbitration between us until after the arbitrator determines the amount, if any, to which you or EarthLink is entitled.
15.3(3) Failure to Reach Resolution
If EarthLink and you do not reach an agreement to resolve the claim within 45 days after the Notice is received, you or EarthLink may commence an arbitration proceeding.
15.4 Commencement of Arbitration
You may initiate an arbitration by filing a claim form with the AAA and sending a copy of the claim form to EarthLink at the Notice Address. You can access a claim form and directions for filing at the website for AAA, www.adr.org. If EarthLink receives notice at the Notice Address that you have commenced arbitration and paid the filing fee to the AAA, it will promptly reimburse you for your payment of the filing fee by check to your address or by credit to your account unless your claim is for greater than $75,000. (The filing fee currently is $200 for claims under $10,000 but is subject to change by the arbitration provider. If you are unable to pay this fee, EarthLink will pay it directly upon receiving a written request from you to the Notice Address.)
15.5 Arbitration Procedures
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the AAA, as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org, or by calling the AAA at 1-800-778-7879. One arbitrator, who is selected under the AAA Rules, will conduct the arbitration. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for a court to decide. Unless EarthLink and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. The right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
15.6 Appeal
If an award issued by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the AAA by a written notice of appeal filed within 30 days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the AAA. The AAA will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel will be final and binding, except for any appellate right which exists under the FAA. If an award issued by the arbitrator does not exceed $75,000, any appeal rights from the award will be governed by the FAA.
15.7 Arbitration Fees
Except as otherwise provided for herein, EarthLink will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse EarthLink for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
15.8 Awards and Attorney’s Fees
If the arbitrator issues you an award that is greater than the value of EarthLink’s last written settlement offer made before an arbitrator was selected, or if the arbitrator issues you an award and EarthLink made no settlement offer, then EarthLink will pay you the amount of the award or $2,500 (“Alternative Payment”), whichever is greater, and pay your attorney, if any, the amount of attorney’s fees incurred, and reimburse any expenses (including expert witness fees and costs) that your attorney, if any, reasonably accrues and documents with specificity for investigating, preparing, and pursuing your claim in arbitration (“Attorney Fee Award”).
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the Alternative Payment and the Attorney Fee Award at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
The right to attorneys’ fees and expenses discussed in this Section 15.8 supplements any right to attorneys’ fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys’ fees or expenses. Although under some laws EarthLink may have the right to an award of attorney’s fees and expenses if it prevails in an arbitration, EarthLink agrees that it will not seek such an award.
15.9 Waiver of Class Actions; Limits of Scope of Arbitrator’s Authority
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND EARTHLINK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and EarthLink agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision will be null and void and all disputes will be heard by a court.
15.10 Changes to Agreement to Arbitrate
Notwithstanding any provision in this Agreement to the contrary, if EarthLink makes any future change to this arbitration provision (other than a change to the Notice Address) during the term of your subscription with EarthLink, you may reject any such change by sending us written notice to the Notice Address postmarked within 30 days of the date of the change. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language in this Section 15 of this Version dated September 15, 2016.
15.11 Notice to California Residents
California residents are entitled to the following information:
The Service is provided by EarthLink, LLC, 1439 Peachtree Street NE, Atlanta, Georgia 30309.
Charges may vary depending on the type of Service.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834 or by telephone at 1-800-952-5210.
15.12 Survival
This Section 15 will survive the termination of your Service with EarthLink.
16. REVISIONS TO THIS AGREEMENT
EarthLink may revise, amend, or modify this Agreement at any time by posting the revised version of this Agreement on the EarthLink Web Site located at www.earthlink.net. The revised version will be effective on the date that it is posted as stated at the end of the revised version. The material changes to this Agreement will be noted in endnotes of the revised version. Your continued use of the Service after the date of the revised version constitutes your acceptance of all of the revisions. If you do not agree to the revisions in the revised version, your sole and exclusive remedy will be to terminate your account and use of the Service.
17. MISCELLANEOUS
You may not assign your rights or delegate any of your duties under this Agreement without the prior written consent of EarthLink, and any attempted assignment or delegation without such consent will be void. If one or more provisions of this Agreement are held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration provision in Section 15; if that prohibition is found to be unenforceable, the entire DISPUTE RESOLUTION BY BINDING ARBITRATION provision (but only the DISPUTE RESOLUTION BY BINDING ARBITRATION provision) will be null and void and the dispute will be heard by a court. EarthLink may amend or replace such unenforceable provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of EarthLink as reflected in the original provision. Nothing in this Agreement or in the understanding of the parties confers upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. EarthLink may subcontract any work, obligations or other performance required of EarthLink under this Agreement without your consent. EarthLink will not be liable for delays, damages or failures in performance because of causes beyond its reasonable control, including, but not limited to, acts of a government in its sovereign capacity, acts of war, terrorism, acts of a public enemy, fires, earthquakes, acts of God, labor disputes, strikes, work slow-downs or other labor-related activity.
Effective Date: September 30, 2017
The following endnote summarizes the material revision made in this September 30, 2017 version of this Agreement compared to the September 15, 2016 version of this Agreement.
1 EarthLink address changes throughout the Agreement.
EARTHLINK WEB HOSTING AND EARTHLINK DOMAIN NAME REGISTRATION SERVICE AGREEMENT
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
READ THIS AGREEMENT CAREFULLY BEFORE USING ANY OF THE SERVICES LISTED BELOW.
1. AGREEMENT
This Agreement is between EarthLink, LLC and its related entities (“EarthLink”) and you and applies to all the products and services available at http://www.earthlink.net/web-hosting/ or www.earthlinkweb.net and all subpages of http://www.earthlink.net/web-hosting/ or www.earthlinkweb.net (collectively, the “Services”; each a “Service”).
This Agreement consists of the terms and conditions below, the specific terms of your billing plan for the Service(s) to which you subscribe and the Privacy Policy.
Sections 1-11 and Sections 14-19 in this Agreement apply to each of the Services. Section 12 of this Agreement sets forth additional specific terms that apply to the Design Your Own Web Hosting Service formerly referred to as Do-It-Yourself Web Hosting Service (“Design Your Own”) and the Professional Design Web Hosting Service formerly referred to as Do-It-For-Me Web Hosting Service (“Professional Design Service”) and only applies to you if you signed up for one of these Services (the Design Your Own and the Professional Design Service will be collectively referred to as the “EarthLink Web Hosting Service”). Section 13 sets forth additional specific terms that apply to the EarthLink Domain Name Registration Service and only applies to you if you registered your domain name through the EarthLink Domain Name Registration Service.
By establishing an account for the Services or using the Services, you agree to be bound by this Agreement and to use the Services in compliance with the terms of this Agreement and all applicable federal, state and local laws, rules and regulations.
2. TERM OF THIS AGREEMENT
The effective date of this Agreement is the date on which you subscribed to the Services. This Agreement continues until the later date of termination of your Services. Sections 6, 9, 10, 14, 16, 17, 18 and 19 of this Agreement will survive the termination of this Agreement.
3. Services Not Intended for Use by Covered Entities
Unless expressly set forth in the description of the Services on http://www.earthlink.net/web-hosting/ or www.earthlinkweb.net or all subpages thereto , the Services are not intended for use by covered entities or business associates to create, access, transmit, or maintain protected health information that is subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). You agree that you have reviewed the descriptions of the Services on http://www.earthlink.net/web-hosting/ or www.earthlinkweb.net and their subpages and understand the intended use of the Services that you are purchasing. You also agree that unless a Service description expressly states that the Service is “HIPAA Compliant,” you will not use such Service to create, access, transmit or maintain any protected health information. Any violation of this Section 3 is your sole responsibility. EarthLink and its affiliates, subsidiaries and licensors will have no liability with respect to your violation of this Section 3.
4. SUBSCRIPTION INFORMATION
To order and receive any of the Services, you acknowledge that you are 18 years of age or older and either (i) you have legal authority to enter into this Agreement or (ii) represent a corporation, partnership or other legal entity duly formed (and incorporated where applicable) in good standing and you have the legal authority and power to enter into this Agreement on behalf of such entity. You must provide EarthLink with a valid credit or debit card or other EarthLink approved payment methods for the Services and your billing address. You represent that all information you provided during the subscription process is accurate and complete and that you will update such information with EarthLink should any of it change.
EarthLink reserves the right to verify the accuracy of the information you submit in connection with your subscription to the Services and you consent to such verification. EarthLink also reserves the right to validate the payment method information you provide at subscription and account updates, including attempting up to a $1.00 authorization to your credit or debit card which is not actually billed. To understand how EarthLink handles and protects your personal information, please see the Privacy Policy.
EarthLink will send you a welcome email as written confirmation of your order. EarthLink may accept or reject any potential subscriber to the Services in its sole discretion.
5. BILLING AND PAYMENT
You agree to pay (i) the recurring monthly fees in your billing plan due in advance of the month incurred or the one-time prepaid fee for the fixed period set forth in your prepaid billing plan, whichever is applicable; (ii) any applicable set-up fees; and (iii) any applicable method of payment fees. Also, you will be responsible for paying all taxes, surcharges, and fees required by any applicable government entity including taxes in connection with any purchases made from your website. All payments will be made in US dollars.
You must provide accurate billing information including legal name, address, telephone number, and credit or debit card number and expiration date and report all changes to this information promptly to EarthLink.
Charges may be billed on or after your billing cycle date to your method of payment on file each month for the Services including any additional charges incurred (e.g. usage, taxes and fees). EarthLink is not responsible for any fees resulting from charges billed by EarthLink including, but not limited to, overdrawn accounts or exceeding credit card limits.
For monthly subscription billing plans, you will be able to use the Services for any consecutive monthly period that has been paid in advance as described in the acceptance materials that you received as part of you sales transaction or on your order confirmation. For example, if your billing cycle begins on the sixth day of the month, then your payment due date (i.e. the date that the amount of your full monthly Service fee, including any and all applicable taxes, must be received by EarthLink) will be on the fifth day of the next month and of each month thereafter.
If you provided EarthLink with a valid credit or debit card, you agree to maintain valid and current credit or debit card information with EarthLink at all times. If you authorized EarthLink to automatically deduct (“ACH Debit”) your monthly Service fees and any other charges, fees, or taxes billed to you, from your checking or savings bank account, then you hereby reaffirm your agreement to the Recurring Automatic Bank Draft Authorization Agreement. You acknowledge and agree that you authorize EarthLink and that EarthLink does not need to obtain any additional authorization from you for any recurring payments or automatic billing options. In addition, if your credit or debit card company provides updated credit or debit card information to EarthLink, you acknowledge that EarthLink does not need to obtain authorization from you for EarthLink to use such information to update your credit or debit card.
If payment by check has been accepted by EarthLink, then payments by check must be received by EarthLink by the due date listed in your monthly paper invoice. EarthLink will charge a processing fee each time you pay your monthly billing invoice. When you pay your fees by check, you also authorize EarthLink to electronically process your payment. If your check is processed electronically, your checking account may be debited on the same day that EarthLink receives your check and neither your check nor a copy of your check will be included with your checking account statement.
EarthLink will charge a fee for returned checks or returned bank drafts from your financial institution.
EarthLink will email an e-invoice to your primary EarthLink email address selected by or assigned to you during the subscription process (“Contact Email Address”) each month or if you designated a different billing email address, EarthLink will email the e-invoice to such billing email address each month. You may request through https://myaccount.earthlink.net/cam/billing_info.jsp or by calling EarthLink Customer Service that EarthLink mail a paper invoice to your billing mailing address each month. EarthLink will charge your account a fee for each paper invoice. If you elect to have EarthLink mail you your monthly invoice, you may request that EarthLink also email your monthly invoice your Contact Email Address or if you designated a different billing email address, to such billing email address. There is no charge for e-invoices.
Delinquent accounts may be suspended or canceled at EarthLink’s sole discretion; however charges will continue to accrue until the account is canceled. If you pay your monthly Service fee to a third party provider, your account also may be suspended for non-payment if your account is delinquent.
Your account will be automatically inactivated if you put a stop payment on your account with your financial institution in connection with the payment of your monthly bill.
If you have a prepaid billing plan, EarthLink will automatically renew your prepaid billing plan on the prepaid billing plan anniversary date unless your Service is canceled or you change to the monthly billing plan. If you have the monthly billing plan, EarthLink will charge you the monthly fee each month until your Service is canceled or you change to the prepaid billing plan.
All charges are considered valid unless disputed in writing within thirty (30) days of the billing date and mailed to 1:
EarthLink, LLC
Customer Service
1439 Peachtree Street NE
Atlanta, Georgia 30309
Adjustments will not be made for charges that are disputed more than thirty (30) days after the billing date.
If you upgrade from the Design Your Own to the Professional Design Service, there will not be any cost for upgrading except for the difference in the monthly fees. If you downgrade from the Professional Design Service to the Design Your Own prior to the end of your 12 month term, you will be charged the applicable early termination fee. However, if you downgrade from the Professional Design Service to the Design Your Own after the 12 month term, you will not be charged the early termination fee. Such upgrade or downgrade will take effect immediately and the new monthly fee will take effect as of the date of such change.
If you change from your existing plan within the Design Your Own to another plan within the Design Your Own (e.g. Website Plus to Business Website Plus), there will not be any cost for this change except the difference in the monthly fees. If you change from your existing plan within the Professional Design Service to another plan within the Professional Design Service (e.g. Premium Design and Marketing Website to Standard Design and Marketing Website) prior to the 12 month term, you will be charged the early termination fee. But if you change from your existing plan within the Professional Design Service to another plan within the Professional Design Service after the 12 month term, you will not be charged the early termination fee. The new plan will start immediately and the new monthly will take effect as of the date of such change.
EarthLink reserves the right (i) to change the fees associated with your Services and institute new fees upon email notice at least 30 days prior to the effective date of such new monthly fee to your Contact Email Address and (ii) to change the fees associated with your account upon email notice at least 30 days prior to the effective date of such new fee to your Contact Email Address or your billing email address if different from your Contact Email address.
EarthLink may use various means to recover monies due. If EarthLink retains a collection agency or takes legal action to collect monies due on your account, you agree to pay all costs and expenses of collection incurred by EarthLink, which may include reasonable attorney’s fees and collection agency fees which may be based on a percentage of the amount owed, up to a maximum of 25%, where permitted by applicable law.
6. CANCELLATION AND TERMINATION
You may cancel your Services only as follows:
Telephone Cancellation: EarthLink toll-free number at 800-955-0186.
Fax Cancellation: Please include your account number and current telephone number and fax to 404-795-1034.
Mail Cancellation: Send registered or certified mail, return receipt requested to:
EarthLink, LLC
Cancel (Name of the Services being cancelled)
1439 Peachtree Street NE
Atlanta, GA 30309
EarthLink does NOT accept cancellations by email.
EarthLink will issue a confirmation number to you by email as proof of cancellation of your Services. Accounts are set to close at the end of the current billing period. If you cancel by one of the prescribed methods listed above and are mistakenly billed for your Services after the end of the billing period, EarthLink will refund any erroneous charges upon proof of such cancellation.
The Professional Design Service’s monthly payment billing plan has a twelve (12) month commitment. If you cancel the Professional Design Service prior to completing the twelve (12) payments, EarthLink will bill you for the remaining unpaid monthly payments. After your (12) month commitment is completed and fully paid, you may cancel at any time, and EarthLink will only bill you up to the end of the current month.
Except for the EarthLink Domain Name Registration Service and the Professional Design Service, EarthLink will provide you with a full refund if you cancel any of the other Services within the first thirty (30) days of your subscription.
Except as described in this Agreement, EarthLink does not grant refunds or credits for any prior use including partial use of the Service during the last month of cancellation, and EarthLink does not issue pro rata refunds for fees paid in advance.
If EarthLink waived the registration fee of your domain name and you cancel either the Design Your Own or the Professional Design Service prior to the 90th day after your account billing start date or whichever start date is set forth in your billing plan, then EarthLink may charge you for the registration fee for your domain name.
Upon any termination by you, EarthLink will permit you to download or otherwise copy electronic materials, data, and files comprising your website, as well as any emails residing on EarthLink’s servers until the end of the current billing cycle. However, you may request immediate removal of such information. EarthLink will try to satisfy your request but will not be under an obligation to do so. EarthLink will not be liable for such deleted electronic materials, data, files or emails. EarthLink reserves the right to retain certain technical information about your website such as logs and statistics for a period of time as needed for technical and legal reasons.
EarthLink may terminate your account for the Services at any time for any reason, including, without limitation, if (i) your account is delinquent because charges on your method of payment were refused for any reason, (ii) you failed to make payment when due or you did not provide EarthLink with your credit or debit card’s expiration date or expiration date of any other method of payment before the existing expiration date; (iii) EarthLink, in its sole discretion, believes you have breached this Agreement or any other EarthLink agreements or policies; or (iv) your use of the Services are prohibited by law. A termination notice will be sent to you via (i) Contact Email Address or (ii) U.S. Mail to the billing address for your EarthLink account. Accounts are set to close at the end of the current billing period. Upon termination by EarthLink under its sole discretion, EarthLink may immediately remove your website, including all of your materials, data, files and emails from EarthLink’s servers and you will have no right to copy or download such information.
If you terminate your EarthLink Web Hosting Service, you can keep your EarthLink Domain Name Registration Service. Likewise, If terminate your EarthLink Domain Name Registration Service, you can keep your EarthLink Web Hosting Service. You must terminate each of these Services individually.
If you cancel your EarthLink account or if your EarthLink account becomes inactive for any reason, such as lack of timely payment or abuse, both your EarthLink Web Hosting Service and your EarthLink Domain Name Registration Services will be canceled. If your account is canceled by you or terminated by EarthLink, it cannot be reactivated.
7. YOUR ACCOUNT, PASSWORD, AND SECURITY
Upon registration, you will receive a username, a password, and other account information. You are responsible for (i) maintaining the confidentiality of both your username, password and other account information, and (ii) the use of your Services by any person who uses your username and password to access the Services, whether or not you specifically authorize such person’s use. You must notify EarthLink immediately upon discovering any unauthorized use of your Services or other breaches of security. Usernames, passwords, email addresses and IP addresses are EarthLink’s property and EarthLink may alter or replace them at any time.
You are solely responsible for the computer and software necessary to use the Services including responsibility for (i) maintaining the security of your computer and data, including protection of your username and password, (ii) the management of your information on your website including back up and restoration of your data, (iii) the encryption of data, and (iii) back-up and restoration of your computer and data. EarthLink recommends that you use anti-virus, anti-spyware and firewall software including appropriately updating such software.
8. MONITORING THE SERVICES
EarthLink has no obligation to monitor the Services but may do so to (i) comply with laws, regulations, or governmental or legal requests; (ii) protect the overall integrity of the Services (including the EarthLink network); (iii) operate the technical aspects of the Services in a proper, effective, and reasonable manner; (iv) protect itself, its employees, or others as described in the Privacy Policy; and (v) to enforce or prevent breaches of this Agreement or other EarthLink agreements or policies.
EarthLink will only disclose information regarding your use of your Services in accordance with the Privacy Policy. EarthLink may immediately remove your material or information from EarthLink’s servers, in whole or in part, if EarthLink reasonably believes it infringes another’s property rights or violates other EarthLink agreements or policies, or any laws or regulations.
EarthLink will use commercially reasonable efforts to schedule any maintenance outages in a way that minimizes the impact on subscribers; however, EarthLink cannot guarantee that your Services will not be interrupted and cannot always provide advance notice of such outages.
9. DISCLAIMERS AND LIMITATIONS OF LIABILITY
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EARTHLINK AND ITS SUPPLIERS AND VENDORS DO NOT WARRANT THAT (I) THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS OR (II) THE ACCURACY, SPELLING OR GRAMMAR OF ANY OF THE CONTENT ON YOUR WEBSITE. EARTHLINK AND ITS SUPPLIERS AND VENDORS MAKE NO EXPRESS WARRANTIES REGARDING THE SERVICES AND WAIVE ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, PRODUCT, EQUIPMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EARTHLINK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND VENDORS (COLLECTIVELY “EARTHLINK PARTIES”) WILL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS IN CONNECTION WITH THE SERVICES RESULTING FROM: (I) YOUR WEBSITE (INCLUDING ALL CONTENT AND ANY END USERS’ USE OF YOUR WEBSITE; (II) OTHER PARTIES ACCESSING YOUR DEVICE; (III) SECURITY BREACHES; (IV) EAVESDROPPING; DENIAL OF SERVICE ATTACKS; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (V) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE) OF THE SERVICES; (VI) YOUR RELIANCE ON OR USE OR MISUSE OF THE SERVICES; (VII) THE MISTAKES, OMISSION, INTERRUPTIONS, DELETION OF FILES OR DATA (INCLUDING PERSONALLY-IDENTIFIABLE INFORMATION), ERRORS OR DEFECTS, DELAYS OR ERRORS IN OPERATION, TRANSMISSIONS, SERVICE INTERRUPTIONS, OR ANY FAILURE OF PERFORMANCE OF THE SERVICES; (VIII) INABILITY TO ACCESS THE SERVICES DUE TO CONNECTIONS, INTERNET ROUTING, HACKING, SPAMMING OR ANY OTHER CIRCUMSTANCE OUTSIDE THE CONTROL OF THE EARTHLINK PARTIES; OR (IX) THE USE OF THE SERVICES BY YOU OR A THIRD PARTY THAT INFRINGES A THIRD PARTY’S COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INTELLECTUAL PROPERTY RIGHTS, PROPRIETARY RIGHTS OR CONTRACTUAL RIGHTS. THE EARTHLINK PARTIES WILL NOT BE OBLIGATED TO COMPENSATE YOU FOR ANY DOWNTIME OF YOUR WEBSITE, WHETHER CAUSED BY YOU OR AN EARTHLINK PARTY.
THE EARTHLINK PARTIES WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE FROM YOUR FAILURE TO COMPLY WITH THESE SECURITY OBLIGATIONS. YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES WILL THE EARTHLINK PARTIES BE LIABLE, IN ANY WAY, FOR ANY ACTS OR OMISSIONS BY YOU, INCLUDING ANY DAMAGES OF ANY KIND INCURRED AS A RESULT OF SUCH ACTS OR OMISSIONS.
THE FOREGOING LIMITATIONS APPLY TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF THE EARTHLINK PARTIES WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO THE CAUSE OF ACTION AGAINST ANY EARTHLINK PARTY IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE. YOUR EXCLUSIVE AND ONLY REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
THE CUMULATIVE LIABILITY OF ANY EARTHLINK PARTY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICES WILL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM.
YOU MAY HAVE OTHER RIGHTS UNDER CERTAIN LAWS IN CERTAIN STATES WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.
10. INDEMNIFICATION
You agree to defend, indemnify and hold the EarthLink Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages including, but not limited to, direct, indirect and consequential damages, attorney’s fees and expenses that an EarthLink Party may sustain or incur by reason of your use or misuse of the Services or the use or misuse of the Services by anyone else through your account including, but not limited to, use or misuse of the Services (i) in violation of applicable laws or regulations or the terms of this Agreement or any other EarthLink agreement or policy; (ii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with such use or misuse; or (iii) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible property (including data).
11. GENERAL LICENSE AND USE OF THE SERVICES
The names of EarthLink, the Services and other EarthLink products and services, and their related logos, are trademarks of EarthLink (“EarthLink Marks”). Except for the “powered by EarthLink” logo on the bottom of the pages of your website hosted by EarthLink, if applicable, you agree not use any EarthLink Marks on your website or anywhere without the prior written permission of EarthLink.
Except as expressly granted herein, nothing in this Agreement grants to or confers in you any license or right of ownership. You will not reproduce, copy or publicly display, or permit anyone else to reproduce, copy or publicly display, any of the tools (“Tools”) or Server-Ready EarthLink Digital Content, defined in Section 12.2, found on the EarthLink Web Hosting Service’s online control center that you can access after you log into control.earthlink.net (“Control Center”), except pursuant to reasonable backup procedures, or for use in your website pursuant to this Agreement, nor create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering, decompiling or otherwise, the source programs or any part thereof from the object program or from other information (whether oral, written, tangible or intangible) made available to you under this Agreement. This license will automatically terminate upon the termination of this Agreement.
You agree to use the Services only for lawful purposes. You are solely responsible for the content, materials, files, data and links on your website (“Content on Your Website”). You will not use the network resources of EarthLink to impersonate another person or misrepresent authorization to act on behalf of others or EarthLink. Any emails sent in connection with your Services must correctly identify the sender. Violations of any of these terms may result in termination of your use of the Services with or without notice.
12. SECTION 12 APPLIES ONLY TO THE EARTHLINK WEB HOSTING SERVICE
12.1 Hosting Your Website
EarthLink will host your website according to the terms of the EarthLink Web Hosting Service selected by you provided that you comply with the terms and conditions set forth in this Agreement. EarthLink will provide email boxes, web hosting storage and associated services as specified in the EarthLink Web Hosting Service plan you selected. EarthLink has the right to remove or reassign the IP addresses of your website. From time to time EarthLink may impose reasonable rules and regulations regarding the use of the EarthLink Web Hosting Service. EarthLink reserves the right to change or reject any of the features, content or applications of or relating to the EarthLink Web Hosting Service at any time with or without notice to you.
12.2 Access to Server-Ready EarthLink Digital Content
The EarthLink Web Hosting Service will provide you with access to materials and data in a “server-ready” condition through the Control Center, that it will not require consultation or any additional manipulation by EarthLink to host your website. Such materials and data may include, but are not limited to, (i) images, photographs, templates, graphics, animations, video, audio, music, sound, text, data, software, trademarks, trade names, logos and other intellectual property as well as “applets”, and “online” or electronic documentation, (ii) supplemental software code and supporting materials as part of the support services for such objects (“Supplemental Software Code and Supporting Materials”), and (iii) executable scripts known as CGIs or any other web application software that makes a website more interactive (collectively, items (i)-(iii) are referred to as “Server-Ready EarthLink Digital Content”). You may use the Server-Ready EarthLink Digital Content only in conjunction with the EarthLink Web Hosting Service and in accordance with this Agreement.
EarthLink may, at its option and at any time, reject certain Server-Ready EarthLink Digital Content even after it has been put on one of the EarthLink servers. EarthLink will notify you of its refusal of such Server-Ready EarthLink Digital Content, and provide you with the opportunity to amend or modify such materials to satisfy the server-ready requirements. If you fail to modify such materials, as directed by EarthLink, within a reasonable period of time, your account will be deemed to be terminated.
You may incorporate the Server-Ready EarthLink Digital Content into your own original work, and you may modify and publish the Server-Ready EarthLink Digital Content in your website for viewing purposes as long as you pay for the EarthLink Web Hosting Service. The Server-Ready EarthLink Digital Content will only function on EarthLink’s servers.
12.3 Specific Terms for the Professional Design Service
If you signed up for the Professional Design Service, EarthLink will send you one or more emails with: (i) a purchase summary; (ii) login link, and login credentials to access the Control Center; and (iii) login link, and login credentials to access the project center (“Project Center”) that includes the website design electronic form (“Website Specification Summary Form”). You will have access to numerous template website designs as well as the Server-Ready EarthLink Digital Content through the Control Center.
An EarthLink website expert (“EarthLink Website Expert”) will contact you during business hours to assist you in completing the Website Specification Summary Form. Within five (5) business days after the date that the EarthLink Website Expert contacts you, you will complete the Website Specification Summary Form including selecting a template website design and uploading the text and images that you want displayed on certain pages in your website. The Control Center includes sample text and images that you may select for display on your website. The EarthLink Website Expert will design your website (“Created Website”) based on the information you provided in your completed Website Specification Summary Form.
The EarthLink Website Expert will provide the first draft of the Created Website to you in a subfolder in your Project Center for you to access through your username and password. For thirty (30) days after the first draft of the Created Website is posted, you can work with the EarthLink Website Expert to make up to three (3) minor changes to the Created Website to finalize it for deployment. The list of minor changes and major changes is located under the Frequently Asked Questions tab in the Project Center. The Created Website will remain in the subfolder until you approve it. After your approval, the Created Website will be published on the EarthLink server. If you want an EarthLink Website Expert to make additional changes to your website after such thirty (30) day period, you may purchase a maintenance agreement from EarthLink.
In the event that you do not submit a completed Website Specification Summary Form to EarthLink within the five (5) business day period described above, the EarthLink Website Expert will create a limited design of your website with (i) a template selected by the EarthLink Website Expert and (ii) text based on information you initially provided to EarthLink when you registered for the Professional Design Service (“Limited Website Design”). Upon completion of your Limited Website Design by the EarthLink Website Expert, the EarthLink Website Expert will send you an email informing you that the Limited Website Design has been posted in your Project Center for your review. You will have five (5) business days from the date this email was sent to review your Limited Website Design.
If you do not ask for any changes to the Limited Website Design during that five (5) business day period, EarthLink will post the Limited Website Design on your URL provided that you do not have any live site on your domain name’s URL. In the event that you have a site posted on your domain name’s URL, the Limited Website Design will remain in your Project Center for as long as your account remains active on the Professional Design Services.
After your review of such Limited Website Design, you may select a different template if necessary. After the EarthLink Website Expert receives your feedback regarding your selected template and all the content you want on your website, the EarthLink Website Expert will rebuild your website. Such rebuilt website will be considered your Created Website. After the new website design is completed, the EarthLink Website Expert will send you an email informing you that the new website design has been posted in your Project Center for your review.
You will use the Created Website or the Limited Website Design, as applicable, as one website only, displayed at a single IP address, with the exception that you may create one duplicate of the Created Website or Limited Website Design for back-up purposes.
12.4 License
During the term of this Agreement and upon payment of all fees due and owing to EarthLink, EarthLink hereby grants, and you hereby accept, a nontransferable, revocable, non-sublicensable, and non-exclusive license to use the following pursuant to the terms and conditions set forth herein (i) the Tools; (ii) the Server-Ready EarthLink Digital Content; (iii) if you signed up for the Professional Design Service, the content for your website provided by the Professional Design Service and any supplemental software code and supporting materials provided as part of the support services for the Professional Design Service (collectively, the “Professional Design Service Materials”); and (iv) the “powered by EarthLink” logo on the bottom of the pages of your website, if applicable.
Any rights not expressly granted herein will be reserved for EarthLink and its licensors. All source code is specifically excluded from the license granted hereunder. EarthLink and its licensors will, at all times, retain ownership of all right, title and interest to any and all intellectual property rights in all their intellectual property, including but not limited to: (i) any and all EarthLink software used or accessed in conjunction with the Services, including all updates, improvements, modifications and enhancements; (ii) the Tools; (iii) the Server-Ready EarthLink Digital Content; (iv) the Professional Design Service Materials, and (v) the “powered by EarthLink” on your website, if applicable.
In addition, you are not permitted to (i) use the Server-Ready EarthLink Digital Content or the Professional Design Service Materials in a web page design whereby the Server-Ready EarthLink Digital Content or the Professional Design Service Materials is in a format designed or intended for storage or re-use by others; (ii) use or permit the use of the Server-Ready EarthLink Digital Content or the Professional Design Service Materials or any part thereof as a trademark or service mark, or claim any proprietary rights of any sort in the Server-Ready EarthLink Digital Content or the Professional Design Service Materials or any part thereof; (iii) use the Server-Ready EarthLink Digital Content or the Professional Design Service Materials with images of identifiable individuals, products or entities in a manner that suggests their association with or endorsement of any product or service; (iv) translate, reverse engineer, decompile, or disassemble the Server-Ready EarthLink Digital Content or the Professional Design Service Materials; or (v) rent, lease, assign, transfer or redistribute the Server-Ready EarthLink Digital Content or the Professional Design Service Materials.
12.5 Intellectual Property Warranty
You warrant that you have the right to use the content, materials, files, data, links, trademarks and any other intellectual property displayed on your website that EarthLink did not explicitly provide to you as part of the Server-Ready EarthLink Digital Content or the Professional Design Service Materials (“Additional Content on Your Website”). You agree and warrant that the Additional Content on Your Website and the transmission of any data, images or materials from your website will not violate (i) any federal, state, local or foreign laws, rules or regulations, or (ii) the rights of any person, group or entity including the intellectual property rights protected by copyright, trade secret, patent, or other intellectual property laws or regulations. You understand and agree that EarthLink cannot support the Additional Content on Your Website.
EarthLink will not be responsible for validating any of the text you display on your website for spelling, grammar or accuracy. EarthLink may be required to disclose information to individuals asserting rights under the Digital Millennium Copyright Act, and you expressly authorize EarthLink to comply with any and all lawful notices, subpoenas, court orders, or warrants without prior notice to you.
EarthLink reserves the right to reject any Additional Content on Your Website at any time with or without notice to you.
12.6 Additional Indemnities
In addition to your indemnification obligations set forth in Section 10, you agree to defend, indemnify and hold the EarthLink Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages (including, but not limited to, direct, indirect and consequential), attorney’s fees and expenses that an EarthLink Party may sustain or incur in connection with the Additional Content on Your Website.
12.7 Data Transfer and Storage Limits
Your EarthLink Web Hosting Service plan sets forth your monthly data transfer and storage limits. The EarthLink Web Hosting Control Center provides you with usage data on your bandwidth (data transfer) and disk space (storage). EarthLink will send you a warning message email that your monthly data transfer is approaching its limit and you will be charged overage fees if your monthly data transfer exceeds its limit. If your website reaches its monthly storage limit, you will not be able to upload additional documents. In such event you can delete some of the stored documents or upgrade to an EarthLink Web Hosting Service plan with a higher monthly storage limit.
12.8 Restrictions of Use
You will not attempt to undermine the security or integrity of the EarthLink Web Hosting Service or the EarthLink network including, but not limited to, port scanning, vulnerability probing or denial of service attacks of any kind. In addition, running excessively CPU intensive CGIs such as IRC bots and utilities, Bit Torrent clients, and any application that acts as a server and listens for inbound network connections are prohibited. Software that acts as proxy server/scripts also is not permitted. If your processes are adversely affecting server or network performance, EarthLink reserves the right to terminate and disable the offending processes even if such action causes disruption to your website. EarthLink restricts run time of any customer’s CGI process to five minutes.
Using the EarthLink Web Hosting Service to send unsolicited bulk emails or usenet postings (spam) is also prohibited. Engaging in activities pertaining to Black Hat SEO, spandexing and so-called “scraper sites” is prohibited. EarthLink reserves the right to disable any portion of your website if EarthLink determines, at its sole discretion, that your website is being used for spamming, hacking or any other type of illegal activity.
13. SECTION 13 APPLIES ONLY TO THE EARTHLINK DOMAIN NAME REGISTRATION SERVICE
13.1 ICANN
The Internet Corporation for Assigned Names and Numbers (“ICANN”) develops and implements policies regarding the registration and renewals of domain names (“ICANN RULES”). Only ICANN accredited registrars can register and renew domain names. EarthLink provides the EarthLink Domain Name Registration Service through the domain registrar services provided by OpenSRS (“Registrar”) which is an ICANN accredited registrar, and as such you agree that EarthLink is limited to providing the EarthLink Domain Name Registration Service in accordance with the terms located at https://www.opensrs.com/wp-content/uploads/Master_Services_Agreement.pdf. Registrar and EarthLink are bound by the ICANN Rules. EarthLink may modify this Agreement in order to comply with changes or updates to the ICANN rules.
Under the ICANN Rules, you have the (i) rights and responsibilities set forth on the ICANN webpage located at http://www.icann.org/en/resources/registrars/registrant-rights/educational and (ii) benefits and additional responsibilities set forth on the ICANN webpage located at http://www.icann.org/en/resources/registrars/registrant-rights/benefits.
The Uniform Domain Name Dispute Resolution Policy (the “UDRP”), as amended from time to time, has been adopted by ICANN and is hereby incorporated and made a part of this Agreement and can be found at http://www.icann.org/dndr/udrp/policy.htm. The UDRP sets forth the terms and conditions in connection with a dispute between you and any party other than EarthLink or Registrar over the registration and use of a domain name registered by you. UDRP has been adopted by all ICANN-accredited registrars.
13.2 How to Register Your Domain Name
You acknowledge and agree that EarthLink does not guarantee that you will be able to register or renew a desired domain name, even if an inquiry indicates that domain name is available, because EarthLink cannot know with certainty whether or not the domain name which you are seeking to register is simultaneously being sought by a third party, or whether there are any inaccuracies or errors in the domain name registration or related databases, including the various WhoIs databases.
You further acknowledge and agree that EarthLink may elect to accept or reject your application for registration for any reason at its sole discretion, such rejection including, but not limited to, rejection due to a request for registration of a prohibited domain name. You also acknowledge and agree that EarthLink is not liable or responsible in any way for any errors, omissions or any other actions by Registrar arising out of or related to your application for, registration of, renewal of, or failure to register or renew a particular domain name.
13.3 Registration Requirements for TLDs
EarthLink registers and manages the following top level domains (TLDs) for new customers: .com, .net, .org, .biz, .asia, .club, .info, .mobi, .name, .tel, .us and .cc. EarthLink also manages the .ca TLD for existing customers. A summary of the registration requirements for these TLDs is set forth below.
There are no restrictions on who may register the following: .com, .net, .info, .tel and .cc.
The .org TLD and the .club TLD are restricted to groups, organizations, assemblies, and communities.
The .name TLD is the only global TLD authorized by ICANN exclusively for private individuals. Registration of .name TLD must include a personal name which is either a person’s legal name or a name by which that person is commonly known. “A name by which a person is commonly known” includes, without limitation, a pseudonym used by an author or painter, or a stage name used by a singer or actor.
The .asia TLD is restricted to companies, organizations, and individuals based in the region of Asia, Australia, and the Pacific.
If you are registering the .biz TLD, you agree that as of the date your register you domain, your registered domain will be used primarily for a bona fide business or commercial purpose. A bona fide business purpose is one of the following: (i) to exchange goods, services, or property of any kind in the ordinary course of trade or business; or (ii) to facilitate the exchange of goods, services, information, or property of any kind in the ordinary course of trade or business. You also agree that the .biz TLD will not be used exclusively for personal use; or solely for the purposes of (i) selling, trading or leasing the domain for compensation, or (ii) the unsolicited offering to sell, trade or lease the domain for compensation.
The .mobi TLD is limited to mobile-compatible sites.
The .us TLD is limited to (i) U.S. citizens or permanent residents in the U.S.; (ii) entities or organizations that are incorporated in the U.S.; (iii) U.S. federal, state or local government; and (iv) foreign entities with a bona fide presence in the United States. If you are registering the .us TLD, you acknowledge and agree that you have a presence in the United States and that you are not permitted to purchase private or proxy .us registrations.
The .ca TLD is restricted to companies, organizations, and individuals with a presence in Canada. If you have a .ca TLD registered, you acknowledge and agree that you have a presence in Canada as defined by the Canadian Internet Registration Authority (“CIRA”) and that you shall continue to be subject to the CIRA’s registrant agreement that can be found at http://www.cira.ca.
More detailed information about the registration requirements of the above TLDs can be found at http://opensrs.com/site/resources/agreements.
Your domain name application process will not be effective until the domain name registration information you provide to EarthLink is delivered to Registrar and Registrar puts into effect your domain name registration.
13.4 WhoIs Information
You are required by ICANN, Registrar and EarthLink to provide the following contact information for each of your domain name registrations (“WhoIs Information”):
- Registrant Contact is the official owner of and highest authority for a domain name. Usually the registrant is the same as the Administrative Contact, though in some circumstances, the registrant may designate another individual to be responsible for the maintenance of the domain name.
- Administrative Contact manages the domain name and has full authority to request and authorize any decisions and updates to the domain name. If the administrative contact is not the owner of the domain name, he or she is the representative of the owner.
- Technical Contact is the person, role, or organization responsible for the web server on which a domain is hosted. The technical contact has the authority to update name server information, and attend to the technical administration of the domain files on the server but does not have the authority to transfer ownership or administrative rights.
- Billing Contact is the party responsible for receiving and paying the registration and renewal fees.
For each of the categories listed above, you are required by ICANN to provide (i) first name, (ii) last name, (iii) company or organization, if applicable, (iv) street address, (v) city/state/country, (vi) zip code, (vii) email address and (viii) telephone number. ICANN also requires you to update your WhoIs Information as needed to keep it current, complete and accurate. EarthLink will provide your WhoIs Information to Registrar to process the registration or renewal of your domain name. You acknowledge that Registrar may use certain of your WhoIs Information provided by EarthLink regarding your domain name registration or renewal in a manner consistent with Registrar’s Domain Name Registration Agreements .
As required by ICANN, your WhoIs Information will be publicly available and accessible through a domain name search unless you choose to pay for EarthLink’s domain contact privacy service which masks the identity of the registrant on the public WhoIs directory. If you subscribe to EarthLink’s domain name privacy service, the WhoIs Information associated with your domain name on the public WhoIs directory will appear as Contact Privacy, Inc. with the address and telephone number of the Registrar and a proxy email address. Emails sent to the proxy address will automatically be forwarded to your Registrant Contact email address without revealing it to the public.
You hereby waive any and all claims and causes of action you may have arising from disclosure of the WhoIs information provided by you to EarthLink.
Each year ICANN requires registrars to remind registrants to review the registrant’s WhoIs Information for the registrant’s domain. Upon receipt of this reminder email from Registrar, you will not need to take any action if all of your WhoIs Information is correct but if any of your WhoIs Information is inaccurate, you will need to correct it by contacting EarthLink by telephone or using the EarthLink Control Center. If this annual email from Registrar bounces back, the “WhoIs Accuracy Program” verification process will be triggered and you will receive an email from Registrar asking you to verify your email address within 15 calendar days by clicking on the link in the email. If you do not verify your email address within such 15 day period, the DNS to your domain will be redirected to point to the Registrar’s servers and your website will not be displayed on the Internet until the verification process has been completed.
13.5 Renewal
Unless EarthLink receives alternate instructions from you at least two (2) months prior to the domain name renewal date, EarthLink will automatically bill you for your domain name renewal at the then-current renewal fee on your monthly billing date two months prior to the domain name renewal date. EarthLink will use your method of payment on file.
EarthLink will renew your domain name registration on the domain name renewal date for the same period of time as the period of time of your original registration term provided that your renewal fees have been paid. For example, if your original registration term was one year, then EarthLink will renew your domain name registration for a one year renewal term.
EarthLink is not responsible for any domain name for which you chose not to renew its registration. In the event that you have not paid your EarthLink Web Hosting fees or domain name registration fees, as applicable, or your EarthLink account has gone into suspended or inactive status or is otherwise not in good standing, EarthLink will not renew your domain name. If your EarthLink account is brought back to active and in good standing status after the registration of your domain name has expired, EarthLink will not be responsible for renewing the expired domain name registration.
Registrar allows a grace period for registrants to renew expired domain names after the actual expiration date. The number of days in the grace period varies by domain name extensions. After the grace period expires, Registrar will place your expired domain name into redemption status for a certain period of time which would allow you to reclaim your domain name and renew it s registration upon payment of a redemption fee in addition to the renewal fee. Before the domain name expires, attempts will be made to email the Registrant Contact email address.
If your domain name is not renewed during the grace period or the redemption period, it will be released to the general public. After your domain name is released to the general public by the Registrar because it was not renewed, EarthLink will no longer be able to purchase or manage your domain name. EarthLink then will remove your domain name from EarthLink’s domain management system.
13.6 The Customer Relationship
By submitting the domain name registration application to EarthLink, you acknowledge and agree that you are a customer of EarthLink for purposes of EarthLink registering and renewing your domain name.
After EarthLink sends your new registration to Registrar, Registrar will send you an email that will ask you to verify your email address within 15 calendar days by clicking on the confirmation link and following the verification steps. Registrar will consider your domain name registration verified after you completed the verification steps. If you do not verify your email address within such 15 calendar day period, the DNS for your domain may be updated to point to the Registrar’s servers and your website will not resolve which means that your website will not be displayed on the Internet until the verification is completed. In such case, you should call EarthLink to send you a new verification email. After you verify your email address, the DNS will point to your domain and your website will be displayed.
Upon termination of EarthLink’s relationship with Registrar or during the renewal of your domain name registration, EarthLink, in its sole discretion, may transfer your domain name registration to a new registrar at no additional charge to you and that this Agreement will continue in full force and effect. In the event that the registrar transfer process requires changing your administrative contact information and/or your organization’s contact information to EarthLink, to expedite such transfer process, EarthLink will notify you that your administrative contact information and/or your organization’s contact information will be changed to EarthLink for the short period of time while your domain name registration is transferred to the new registrar. Changing this information to EarthLink during the transfer process will not affect your ownership of the domain. After the transfer of your domain name to the new registrar has been completed, EarthLink and the new registrar will change the transferred administrative contact information and/or your organization’s contact information back to your original administrative contact information and/or your original organization’s contact information. The new registrar will contact you via email with a confirmation link for you to verify the domain transfer from Registrar to the new registrar. If you do not verify this domain transfer to the new registrar within such 15 calendar day period, the DNS for your domain may be updated to point to the Registrar’s servers and your website will not resolve which means that your website will not show up on the Internet until the verification is completed. In such case, you must call EarthLink to request that we send you a new verification email. After you verify your email address, the DNS will be repointed to your domain.
If you decide to transfer the registration of your domain name that has been recently renewed through the EarthLink Domain Name Registration Service to another domain name registration reseller or directly with another registrar, there is the potential that the renewal year will be lost.
13.7 Approval Process for Your Changes to your WhoIs Information
ICANN has instituted a new transfer policy effective December 1, 2016 (“ICANN Transfer Policy”) which covers the approval procedures for (i) updates to any of the following fields in a registrant’s WhoIs Information: first name, last name, organization or email address or (ii) changing ownership of the domain name from the current registrant to another registrant (“New Registrant”). Such changes are collectively referred to as “Changes”.
If you are the current registrant of a domain registered through the EarthLink Domain Name Registration Service, you will receive an email directly from the Registrar asking you to confirm the Changes. During the confirmation process you will have the option to check a box to “waive the 60-day transfer lock”. Under the ICANN Transfer Policy, if you do not check this box, your domain will be locked for 60 days and the domain registration cannot be transferred to another registrar during the 60 day period.
The ICANN Transfer Policy allows new registrants to delegate their consent to the Changes to a third party as a designated agent (“Designated Agent”) to confirm the Changes . If you are the new registrant of a domain registered through the EarthLink Domain Name Registration Service, you will receive an email directly from the Registrar with a link for you to confirm or not confirm that you are the new owner of this domain. If you confirm that you are the new owner of this domain, you will have the option to check a box whereby you authorize the Registrar to act as you Designated Agent to confirm Changes for your domain on your behalf.
13.8 Fees
You agree to pay the then-current fees for domain name registrations and renewals set forth in the EarthLink price schedule for the billing plan you selected. All fees are non-refundable, in whole or in part, even if your domain name registration is suspended, canceled or transferred prior to the end of your then-current registration term. EarthLink reserves the right to change renewal fees at any time upon thirty (30) days’ notice.
If you want to change your original billing information, you must do so by contacting EarthLink at least sixty (60) days before your domain name registration expires, otherwise your original credit or debit card or other method of payment will be billed. If your original credit or debit card has expired or is otherwise invalid, you must contact EarthLink with a valid credit or debit card or some other method of payment acceptable to EarthLink at its sole discretion. However, in the event that EarthLink does not have your valid billing information before the date your domain name registration expires, your domain name registration will not be renewed.
13.9 Additional Information Maintained
In addition to your WhoIs Information that you provide to EarthLink and EarthLink then provides to Registrar on your behalf, EarthLink maintains records relating to the EarthLink Domain Name Registration Service that may include, but are not limited to: (i) any domain name application received by EarthLink, as well as any domain name registered through, administered, or renewed by EarthLink; (ii) records of your account, including dates and amounts of all payments and refunds; and (iii) any and all communication between EarthLink and you regarding your use of the EarthLink Domain Name Registration Service.
13.10 Obligations Relating to the Information You Provide
In the event that you provide information about a third party in applying for the registration of a domain name or you license a domain name registered in your name to a third party, you hereby represent and warrant that you have (i) provided notice to that third party of the disclosure and use of that party’s information as set forth in this Agreement, and (ii) that you have obtained that third party’s express consent to the disclosure and use of that party’s information as set forth in this Agreement. You are prohibited from registering for the .us domain for a third party that is located outside of the United States.
You acknowledge and agree that willfully providing inaccurate or unreliable information or willfully failing to update information promptly will constitute a material breach of this Agreement that will be sufficient basis for cancellation of your domain name registration. You further acknowledge and agree that your failure to respond to inquiries by EarthLink concerning the accuracy of the WhoIs Information associated with your domain name registration within 15 calendar days from the date that the email from EarthLink was sent to you will constitute a material breach of this Agreement and will be sufficient basis for cancellation of your domain name registration.
13.11 Ownership of Data
You acknowledge and agree that EarthLink owns all databases, compilation, collective and similar rights, title and interests worldwide in EarthLink’s domain name, the EarthLink Domain Name Registration Service and other EarthLink proprietary information databases, and all information and derivative works generated from those databases. Additionally, you hereby grant to EarthLink a nonexclusive, worldwide, perpetual, irrevocable, fully paid-up right and license to use in its business, however it evolves, including the rights to copy, distribute, display, perform, transmit, prepare derivative works from or otherwise use the following information: (i) the original creation date of a domain name registration, (ii) the expiration date of a domain name registration, (iii) the name, postal address, email address, voice telephone number, and where available fax number of the technical contact, administrative contact, and billing contact for a domain name registration, (iv) any remarks concerning a registered domain name that appear or should appear in a WhoIs or similar database, and (v) any other information EarthLink generates or obtains in connection with the EarthLink Domain Name Registration Service. EarthLink does not have any ownership interest in your WhoIs Information or other information other than EarthLink’s rights in its domain name database as set forth in this Section 13.11.
13.12 Agent for the Registrant
You agree that, if you are using the EarthLink Domain Name Registration Service for another party, you represent that you have the authority to nonetheless bind that party as a principal to all terms and conditions provided herein including, but not limited to, the approval process for any Changes. You accept liability for harm caused by wrongful use of the EarthLink Domain Name Registration Service. You agree that if you license the use of a domain name registered in your name to a third party, you nonetheless remain the domain name holder of record, and remain responsible for all obligations under this Agreement, including but not limited to payment obligations, and providing (and updating, as necessary) both your own full contact information, and accurate technical, administrative, billing information adequate to facilitate timely resolution of any problems that arise in connection with the domain name and domain name registration. As further required by ICANN, you will accept liability for harm caused by wrongful use of the domain name.
13.13 System Performance Degradation
EarthLink’s delivery of the EarthLink Domain Name Registration Service depends upon its computer system and the computer system of its registrar, both of which are responsive to the demands of the domain name registration process. Occasionally, EarthLink’s computer system or its registrar’s computer system are subjected to exceptional volumes of incoming domain name registration requests, electronic mail messages, and/or WhoIs queries that result in significant degradation of EarthLink’s or its registrar’s system processing and response time. Regardless of the reason, in those instances when there is system performance degradation as the result of an extremely large volume of incoming electronic messages, EarthLink reserves the right, in its sole discretion, to filter or block electronic messages originating from the identified sources of the high-volume traffic. EarthLink will selectively restore service after system performance returns to normal limits, provided that such restoration does not result in an adverse impact on the system. EarthLink further reserves the right to permanently filter or block repeated sources of high volumes of electronic traffic.
13.14 Suspension, Cancellation, Transfer
You acknowledge and agree that EarthLink may suspend or cancel your use of the EarthLink Domain Name Registration Service at any time, for any reason, in EarthLink’s sole discretion, including if (i) you materially breach this Agreement (including any applicable additional rule or policy; (ii) you use the domain name registered to you to send unsolicited email advertisements in contradiction to either applicable laws or customary acceptable usage policies of the Internet; or (iii) your use of your domain name does not comply with applicable local, state, national and international laws, rules and regulations.
You further acknowledge and agree that your domain name registration is subject to suspension, cancellation, transfer or modification pursuant to the terms of any rules or policies applicable to your domain name registration, including, but not limited to (i) the UDRP, (ii) any ICANN-adopted policy, (iii) any registrar or registry administrator procedures, or (iv) any other ccTLD registry administrator procedures. You also agree that EarthLink will have the right in its sole discretion to suspend, cancel, transfer or otherwise modify your domain name registration at such time as EarthLink receives (i) a properly authenticated notification from a court of competent jurisdiction, or (ii) an arbitration award requiring the suspension, cancellation, transfer or modification of your domain name registration.
If you contact EarthLink that you do not want EarthLink to renew your domain registration, then the domain name registration will continue until the end of the registration term. You may renew it yourself or transfer the domain name registration to another registrar.
13.15 Additional Disclaimers, Limitations of Liability and Indemnification regarding the EarthLink Domain Name Registration Service
In addition to the terms set forth in Section 9, Disclaimers and Limitations of Liabilities, and Section 10, Indemnification, the following disclaimers, limitations of liability and indemnification terms apply to the EarthLink Domain Name Registration Service.
EARTHLINK MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER THAT REGISTRATION OR USE OF A DOMAIN NAME UNDER THIS AGREEMENT WILL IMMUNIZE YOU EITHER FROM CHALLENGES TO YOUR DOMAIN NAME REGISTRATION, OR FROM SUSPENSION, CANCELLATION OR TRANSFER OF THE DOMAIN NAME REGISTERED TO YOU.
You agree to notify EarthLink of any claim or potential claim against your domain name, including, but not limited to, the initiation of a dispute under UDRP, within five (5) business days of same. In the event that you lose your right to use a domain name used in connection with the EarthLink Web Hosting Service, whether through expiration of the domain name, judicial decree, administrative decisions of the UDRP or otherwise, you agree to inform EarthLink immediately and, if applicable, inform EarthLink of the party to whom the domain name is to be transferred and to authorize EarthLink to take any and all action necessary to effect such transfer.
You agree to defend, indemnify and hold harmless the EarthLink Parties for any loss, damages or costs, including reasonable attorneys’ fees, resulting from any third-party claim, action, or demand related to (i) your use of the EarthLink Domain Name Registration Service, including, but not limited to, your application for registration or renewal of any domain name registered in your name, (ii) your use of any domain name registered in your name or (iii) the loss of the use of your website due to your lack of response to the verification process within the specified time period. You additionally agree to indemnify, defend and hold harmless the EarthLink Parties from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees and expenses) arising out of, or related to, (i) your application for registration of, renewal of, or failure to register or renew, a particular domain name; or (ii) your failure to update your WhoIs Information for accuracy. These indemnification provisions are in addition to any indemnification required under the UDRP or any similar policy.
14. ELECTRONIC COMMUNICATIONS AND PHONE COMMUNICATIONS
14.1 Electronic Communications
You consent to receive notices, documents, disclosures and other communications from EarthLink about your account or the Service (“Communications”) in an electronic format to your Contact Email Address and agree that the Communications provided to you by EarthLink electronically will be deemed a writing. If you do not want to receive Communications from EarthLink electronically or if you withdraw your consent to receive such Communications electronically, then you must stop using the Service. The withdrawal of your consent will not affect the legal validity and enforceability of any electronic Communications provided or business transacted between EarthLink and you prior to the time you withdraw your consent.
14.2 Phone Calling and Texting
In addition, you hereby agree that your use of the Service constitutes your express written consent to receive automated and manually dialed calls, text messages and pre-recorded messages at the phone number(s) that you provide EarthLink in connection with your subscription to or use of the Service. Consent to receiving autodialed calls, text messages, and/or pre-recorded messages from EarthLink is not required to purchase products or services from EarthLink.
14.3 Changing Your Contact Preferences
You may exercise your option not to receive any marketing communications from and/or automated or manually dialed calls, text messages and pre-recorded messages from EarthLink by going directly to https://myaccount.earthlink.net/cam/contactinfo.jsp or calling EarthLink customer service. You also may text STOP in response to any text message from EarthLink to stop receiving text messages from EarthLink.
15. CUSTOMER AND TECHNICAL SUPPORT
For online customer support, log in to the EarthLink Web Hosting Control Center or use live chat http://support.earthlink.net/chat. For telephone support call 800-955-0186.
For specific billing questions, login to myaccount at https://myaccount.earthlink.net/cam/whlogin.jsp.
EarthLink provides technical support in connection with the features and tools available through the EarthLink Web Hosting Service.
16. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
17. DISPUTE RESOLUTION BY BINDING ARBITRATION (INCLUDING IMPORTANT INFORMATION FOR CALIFORNIA RESIDENTS)
17.1 Summary
Most subscriber concerns can be resolved by calling 1-800-955-0186. If EarthLink is unable to resolve your complaint to your satisfaction (or if EarthLink has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed $75,000, EarthLink will pay all costs of the arbitration. Moreover, in arbitration you are entitled to recover attorneys’ fees from EarthLink to at least the same extent as you would be in court.
In addition, under certain circumstances (as explained below), EarthLink will pay you more than the amount of the arbitrator’s award and will pay your attorney (if any) his or her reasonable attorneys’ fees if the arbitrator awards you an amount that is greater than what EarthLink has offered you to settle the dispute.
17.2 Agreement to Arbitrate
EarthLink and you agree to resolve all disputes and claims between us through binding arbitration by the American Arbitration Association (“AAA”). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- Claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
- Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- Claims that may arise after the termination of this Agreement.
References to “EarthLink,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Services under this Agreement or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court rather than by arbitration if the claim qualifies for small claims court in a location where jurisdiction and venue over EarthLink and you is proper. This agreement to arbitrate does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.
You agree that, by entering into this Agreement, you and EarthLink are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this provision.
17.3 Informal Dispute Resolution Prior to Arbitration
17.3(1) Notice of Dispute
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). A Notice to EarthLink should be addressed to: EarthLink, LLC, 4001 Rodney Parham Rd., Little Rock, AR 72212, Mailstop B1F03-53A, Attn: Legal Department (Arbitration) (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). A Notice to you will be addressed to the billing address that EarthLink has on file for you.
17.3(2) Settlement Proposals
The amount of any settlement offer made by EarthLink or you will not be disclosed to the arbitrator in any arbitration between us until after the arbitrator determines the amount, if any, to which you or EarthLink is entitled.
17.3(3) Failure to Reach Resolution
If EarthLink and you do not reach an agreement to resolve the claim within 45 days after the Notice is received, you or EarthLink may commence an arbitration proceeding.
17.4 Commencement of Arbitration
You may initiate an arbitration by filing a claim form with the AAA and sending a copy of the claim form to EarthLink at the Notice Address. You can access a claim form and directions for filing at the website for AAA, https://www.adr.org. If EarthLink receives notice at the Notice Address that you have commenced arbitration and paid the filing fee to the AAA, it will promptly reimburse you for your payment of the filing fee by check to your address or by credit to your account unless your claim is for greater than $75,000. (The filing fee currently is $200 for claims under $10,000 but is subject to change by the arbitration provider. If you are unable to pay this fee, EarthLink will pay it directly upon receiving a written request from you to the Notice Address.)
17.5 Arbitration Procedures
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the AAA, as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at https://www.adr.org, or by calling the AAA at 1-800-778-7879. One arbitrator, who is selected under the AAA Rules, will conduct the arbitration. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for a court to decide. Unless EarthLink and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. The right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
17.6 Appeal
If an award issued by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the AAA by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the AAA. The AAA will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel will be final and binding, except for any appellate right which exists under the FAA. If an award issued by the arbitrator does not exceed $75,000, any appeal rights from the award will be governed by the FAA.
17.7 Arbitration Fees
Except as otherwise provided for herein, EarthLink will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse EarthLink for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
17.8 Awards and Attorney’s Fees
If the arbitrator issues you an award that is greater than the value of EarthLink’s last written settlement offer made before an arbitrator was selected, or if the arbitrator issues you an award and EarthLink made no settlement offer, then EarthLink will pay you the amount of the award or $2,500 (the “Alternative Payment”), whichever is greater, and pay your attorney, if any, the amount of attorney’s fees incurred, and reimburse any expenses (including expert witness fees and costs) that your attorney, if any, reasonably accrues and documents with specificity for investigating, preparing, and pursuing your claim in arbitration (the “Attorney Fee Award”).
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the Alternative Payment and the Attorney Fee Award at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
The right to attorneys’ fees and expenses discussed in this Section 17.8 supplements any right to attorneys’ fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys’ fees or expenses. Although under some laws EarthLink may have the right to an award of attorney’s fees and expenses if it prevails in an arbitration, EarthLink agrees that it will not seek such an award.
17.9 Waiver of Class Actions; Limits of Scope of Arbitrator’s Authority
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND EARTHLINK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and EarthLink agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision will be null and void and all disputes will be heard by a court.
17.10 Future Changes to Agreement to Arbitrate
Notwithstanding any provision in this Agreement to the contrary, if EarthLink makes any future change to this arbitration provision (other than a change to the Notice Address) during the term of your subscription with EarthLink, you may reject any such change by sending us written notice to the Notice Address postmarked within 30 days of the date of the change. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language in this Section 17 of this Version dated June 26, 2017.
17.11 Notice to California Residents
California residents are entitled to the following information:
The Services are provided by EarthLink, LLC, 1439 Peachtree Street NE, Atlanta, Georgia 30309.
Charges may vary depending on the type of Service.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834 or by telephone at 1-800-952-5210.
17.12 Survival
This Section 17 will survive the termination of your Services with EarthLink.
18. REVISIONS TO THIS AGREEMENT
EarthLink may revise, amend, or modify this Agreement for any reason by posting the revised version of this Agreement on the EarthLink Website located at http://www.earthlink.net/about/policies/webhosting.faces.
The revised version will be effective on the date that it is posted as stated at the end of the revised version. The material changes to this Agreement will be noted in endnotes of the revised version.
Your continued use of the Services after the date of the revised version constitutes your acceptance of all of the revisions. If you do not agree to the revisions in the revised version, your sole and exclusive remedy will be to terminate your account and use of the Services.
19. MISCELLANEOUS
You may not assign your rights or delegate any of your duties under this Agreement without the prior written consent of EarthLink, and any attempted assignment or delegation without such consent will be void. If one or more provisions of this Agreement are held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration provision in Section 17; if that prohibition is found to be unenforceable, the entire DISPUTE RESOLUTION BY BINDING ARBITRATION provision (but only the DISPUTE RESOLUTION BY BINDING ARBITRATION provision) will be null and void and the dispute will be heard by a court. EarthLink may amend or replace such unenforceable provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of EarthLink as reflected in the original provision. Nothing in this Agreement or in the understanding of the parties confers upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. EarthLink may subcontract any work, obligations or other performance required of EarthLink under this Agreement without your consent. EarthLink will not be liable for delays, damages or failures in performance because of causes beyond its reasonable control, including, but not limited to, acts of a government in its sovereign capacity, acts of war, terrorism, acts of a public enemy, fires, earthquakes, acts of God, labor disputes, strikes, work slow-downs or other labor-related activity.
Effective Date: June 20, 2018
The following endnote summarizes the material revisions made in this June 20, 2018 version of this Agreement compared to the previous version of this Agreement dated September 30, 2017.
1 OpenSRS terms and conditions added and incorporated into the Agreement.
CANCELING YOUR EARTHLINK SERVICE
You may cancel your Service only as follows:
- Telephone Cancellation for EarthLink Services: 1-888-327-8454
- Telephone Cancellation for PeoplePC Services: 1-866-772-6277
- Fax Cancellation for both EarthLink Services and PeoplePC Services: 1-404-795-1034 *include your account number and current telephone number.
Mail Cancellation for both EarthLink Services and PeoplePC Services: Send registered or certified mail, return receipt requested to:
EarthLink, LLC
Cancel (write Name of Service)
1439 Peachtree Street NE
Atlanta, GA 30309
*Include your account number and current telephone number.
EarthLink does NOT accept cancellations by email.
Cancellation will be effective at the end of the billing cycle after your notice is received and processed.
The links for more details on EarthLink’s cancellation policies are listed below:
- Cable Internet Service Agreement – Section 8
- Dial-Up Service Agreement* – Section 10
- DSL & Home Phone Agreement – Section 11
- High Speed Internet Agreement** – Section 9
- Specific Warranty and Cancellation Terms for the EarthLink DSL MODEM – Section 10
- Specific Warranty and Cancellation Terms for the EarthLink Freestanding DSL Modem Provided by AT&T – Section 11
- Specific Installation, Warranty and Installation Terms for the HyperLink Equipment – Section 12
Home Networking Agreement – Section 7
Online Backup Agreement – Section 9
Web Hosting Service Agreement – Section 5
*The Dial-Up Service Agreement includes EarthLink Dial Up, PeoplePC Dial Up, and EarthLink and PeoplePC software and tools associated with the Dial-Up Service except that Home Networking and Online Backup have their own Service Agreements.
**The High Speed Internet Agreement includes Residential DSL, Freestanding DSL, HyperLink High Speed and EarthLink and PeoplePC software and tools associated with one of these High Speed services except that Home Networking and Online Backup have their own Service Agreements.
Residential Broadband Network Management Information
EarthLink believes that reasonable network management practices are necessary for EarthLink to provide all our EarthLink and PeoplePC residential customers, including residential broadband access customers, with award winning Internet services. EarthLink uses a variety of tools and methods to manage our network, including managing any network congestion, and address security concerns. Our industry standard network management practices help us protect our network and our customers from harmful online activity (like spamming, viruses and phishing) and help ensure compliance with our Service Agreements and Acceptable Use Policy (AUP). EarthLink’s Service Agreements and AUP are available at http://www.earthlink.net/about/policies/use.faces.
So that we can address the ever changing issues and threats that affect our network and all our customers, we continually evaluate the effectiveness of our network management practices and reserve the right to change those practices. We will update this page to keep our customers informed of any significant changes to our residential broadband network management practices.
1. Network Practices
EarthLink continuously monitors our network with the goal of providing all our residential customers with full access to all the lawful activities, content, applications and services that our customers seek on the Internet. When we find network congestion that may impact our customers’ use of our services, we work to alleviate the congestion by obtaining more capacity to support our customers. We do not restrict our customers by protocol, application, ports or devices except to protect our network and our customers.
EarthLink uses various tools and methods to protect the security of our network and, in turn, our customers. We have implemented several network-based security tools designed to identify and block malicious activity. We monitor for unusual login, firewall and other specific malicious network activity on our network. To try to reduce the delivery of spam emails to our customers, we check inbound email against several third party reputation services.In order to combat distributed Denial of Service (DDoS) attacks, EarthLink employs various practices which may include temporarily blocking certain incoming traffic into our network if we detect malicious activity or traffic volumes that exceed certain baseline metrics, or if the source of the traffic is potentially harmful to our customers or known to be associated with illegal behavior. We may block ports and Internet Protocol addresses and cancel or suspend customer accounts that are used to host malicious websites, send phishers or spam, launch malicious attacks, or attempt to steal customer information. In order to maintain the integrity of our network and our security programs, we do not disclose the specific details about our security tools and methods.
In addition, we offer our customers various security tools for the customers’ own use. Information on these security tools is available at http://www.earthlink.net/software/staysafe.faces.
2. Third Party Network Practices
In order to provide high speed Internet access service to our residential customers, we use the DSL and cable Internet access services of various third parties. We work with these third parties in an effort to provide our customers with robust services. These third parties may have network management practices of their own that differ from EarthLink’s practices. If you have any questions or would like information about the network management practices of any third party that helps EarthLink provide high speed Internet access to you, please contact us or go to the third party websites listed in Section 3 below. To contact EarthLink Customer Service via telephone or live chat go to http://www.earthlink.net/about/contact/. To contact PeoplePC Customer Service via telephone or live chat go to https://support.peoplepc.com/contact/contact.php.
3. Performance Characteristics
As described above, EarthLink provides high speed Internet access service to our residential customers, in part, by using the DSL and cable Internet access services of various third parties. The performance of EarthLink’s high speed Internet access services, including the speed1 and latency2 of these services, depends on the performance of these third party networks and on many factors outside the control of EarthLink and its third party providers. Such factors may include the quality of your home network and inside wiring, the devices being used, and simultaneous usage by multiple users. For more information on service speed or to test the speed of your high speed Internet access service go to https://support.earthlink.net/articles/dsl/using-a-speed-test-tool.php.
Information on the network management practices and performance characteristics of our third party DSL and cable Internet access service providers is available on their websites:
- AT&T: www.att.com/broadbandinfo
- CenturyLink: http://www.centurylink.com/Pages/AboutUs/Legal/InternetServiceManagement/
- Comcast: http://customer.comcast.com/Pages/FAQViewer.aspx?Guid=24f9d063-b8ca-4c93-a528-cb62e1fd664b
- MegaPath: http://www.megapath.com/megapath/assets/File/PDF/Legal/MP_Network-Management-Disclosure.pdf
- Time Warner Cable: http://help.twcable.com/description_of_network_management_practices.html
- Verizon: http://www22.verizon.com/terms/networkmanagementguide/
In addition, the Federal Communications Commission (FCC) has released studies and reports on the performance of certain nationwide residential DSL, cable, fiber and satellite broadband services in the United States, including most of the third parties that help EarthLink provide residential high speed Internet access service. The most recent of these studies examined and reported on the service offerings of the largest DSL, cable, fiber and satellite broadband providers using automated, direct measurements of broadband service performance delivered to the homes of thousands of volunteers during September 2013. For more information on the FCC studies and reports and the performance data go to http://www.fcc.gov/measuring-broadband-america.
1 Generally describes the capacity at which a service can transmit data.
2 Generally describes the time it takes a data package to travel from one point to another point in a network.
4. Commercial Terms
In general, EarthLink does not place usage limits on our residential high speed Internet access services. However, certain third party cable Internet access service providers that EarthLink uses may limit the amount of data that customers can upload or download per month. More information on these limits can be found in Section 5 of EarthLink’s Cable Internet Service Agreement.
For information on all our residential high speed products and services, including pricing and available speeds, please go to http://www.earthlink.net/. Please note our high speed product and service offerings vary by region, may change over time and may be subject to limited time promotional rates and conditions. Our high speed products and services are governed by our policies and agreements, including our Privacy Policy.
To contact EarthLink with any questions or concerns about its network management practices or any other issues.
Dated: November 10, 2011; Updated on January 6, 2012 and September 24, 2014
EARTHLINK BANK DRAFT AUTHORIZATION AGREEMENT
AUTHORIZATION
By entering my password and clicking on “Confirm” at the bottom of this page, I authorize EarthLink, LLC (“EarthLink“) to automatically deduct (“ACH Debit“) the monthly Internet access fees and any other monthly or ancillary charges or taxes associated with my EarthLink account from my checking or savings bank account specified above (“Bank Account“) at the bank specified above (“Bank“). I further authorize EarthLink to process any refund or other credit to me by electronic ACH credit to my Bank Account.
PAYMENT DUE DATE
I understand that EarthLink will initiate the ACH Debit from my Bank Account each month on the monthly payment due date of my EarthLink account.
BANK ACCOUNT INFORMATION
I understand that I am responsible for providing EarthLink with valid and accurate Bank Account information. I agree to notify EarthLink if my Bank Account information changes. I understand that failure to do so may result in denied ACH Debit payments and cancellation by EarthLink of my bank draft as my method of payment.
UNAVAILABILITY OR INSUFFICIENT FUNDS
If my Bank does not honor the ACH Debit, I understand that I am still responsible for the timely payment of the related invoice, any overdraft fees applied by my Bank, and any returned item fees charged by EarthLink
REVOKING MY ACH DEBIT PAYMENT METHOD
I acknowledge that this authorization for recurring electronic ACH Debit will remain in full force and effect until I notify EarthLink that I want to revoke this authorization by (i) changing my billing method under “My Account” at myaccount.earthlink.net for EarthLink subscribers and myaccount.peoplepc.com for PeoplePC subscribers, or (ii) mailing a written statement expressly revoking this authorization to EarthLink Customer Service, 1439 Peachtree Street NE, Atlanta, GA 30309 (for both EarthLink and PeoplePC subscribers). I understand that EarthLink requires at least ten (10) business days after the date of such change in MyAccount or receipt of such statement to discontinue my ACH Debit method of payment.
WHAT HAPPENS AFTER REVACATION OR CANCELLATION
Upon the revocation or cancellation of my ACH Debit method of payment, my bill payment method will automatically revert to “Pay by Check” unless I specify an alternative bill payment method under “My Account” at myaccount.earthlink.net. If I allow my bill payment method to revert to “Pay by Check,” I understand that EarthLink will charge a processing fee each time I pay my monthly billing invoice. In order to avoid this processing fee, I must select an alternate bill payment method under “My Account” before the end of the billing cycle associated with the revocation or cancellation of my ACH Debit method of payment.
I understand that I may reapply for the ACH Debit method of payment with a different Bank Account. In the event that the Bank associated with such new Bank Account does not honor the ACH Debit, EarthLink may cancel my EarthLink account.
It is recommended that you print a copy of this Authorization and maintain it for your records.
Effective Date: 09-30-2017
Do Not Call Policy
As part of its commitment to comply with federal and state laws and regulations, EarthLink, LLC (“EarthLink”) instituted the following Do Not Call Policy which applies to the consumer Internet access and related services offered by EarthLink under both the EarthLink and PeoplePC brands:
- EarthLink maintains an internal Do Not Call list (“EarthLink Do Not Call List”) that includes the telephone numbers of customers and potential customers who have directly requested to EarthLink, or its telemarketing vendors, that they not receive telephone sales calls from EarthLink. EarthLink has procedures to prevent telephone sales calls for EarthLink consumer products or services from being made by or on behalf of EarthLink to telephone numbers on the EarthLink Do Not Call List.
- To have your residential telephone number placed on the EarthLink Do Not Call List, you may call EarthLink Customer Support at 888-327-8454 or mail your request to the EarthLink Do Not Call Administrator / George Vetrano, EarthLink, LLC, 1439 Peachtree St. NE, Atlanta, GA 30309.
- Please include your name and the ten digit telephone number you want included on the EarthLink Do Not Call List. If you have multiple telephone numbers, please tell us all the telephone numbers that you want placed on the EarthLink Do Not Call List. If your information changes, please notify us of the new name and telephone number(s).
- In some cases it may take up to 10 days, but in no case longer than 30 days, from our receipt of your request for your telephone number(s) to be added to the EarthLink Do Not Call List. This record will be retained for five (5) years unless you ask to be removed from the EarthLink Do Not Call List. To prevent EarthLink telephone sales calls after five years, you will need to submit a new request to EarthLink.
- The Federal Trade Commission offers a free service to consumers that allows them to place their residential telephone number(s) on the National Do Not Call Registry. You may add your residential telephone number(s) to this list either by calling 888-382-1222 or through the internet at www.donotcall.gov. Under the federal Do Not Call Rules, telephone sales calls to a consumer with whom EarthLink has an established business relationship are permitted unless the consumer has asked to be included on the EarthLink Do Not Call List.
- EarthLink trains its employees and agents whose duties involve placing telephone sales calls to comply with the provisions of the Telephone Consumer Protection Act of 1991, the FTC Telephone Sales Rules, applicable state regulations, the use of the EarthLink Do Not Call List and this EarthLink Do Not Call Policy in performing their duties.
- The EarthLink Do Not Call List restricts telephone sales calls from EarthLink only. EarthLink may continue to contact its customers by telephone for non-solicitation purposes including, but not limited to, service-related issues, surveys, billing, and other non-sales topics.
Version: 9-30-2017