EARTHLINK 4G INTERNET SERVICE AGREEMENT
READ THIS EARTHLINK 4G INTERNET SERVICE AGREEMENT CAREFULLY BEFORE USING THE EARTHLINK 4G INTERNET SERVICE AT HOME OR THE EARTHLINK 4G INTERNET SERVICE ON-THE-GO.
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.
The EarthLink 4G Internet Service At Home includes a modem to provide a wireless home network ("EarthLink 4G Modem"). The EarthLink 4G Internet Service On-the-Go includes the 4G mobile hotspot to connect to the Internet provided you are in the range of a 4G transmission tower ("EarthLink 4G Mobile Hotspot"). The EarthLink 4G Modem and the EarthLink 4G Mobile Hotspot are collectively referred to as "EarthLink 4G Equipment".
By establishing an EarthLink 4G Internet Service account with EarthLink, or using the EarthLink 4G Internet Service, you agree to be bound by this Agreement and to use the EarthLink 4G Internet 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 EarthLink 4G Internet Service. This Agreement terminates upon the termination of your EarthLink 4G Internet Service account. Sections 9, 10, 12, 13, 14, 16, 17, 18, 19 and 20 of this Agreement will survive the termination of this Agreement.
3. SUBSCRIPTION INFORMATION
To order and receive the EarthLink 4G Internet 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; (ii) the type of device you will use for the EarthLink 4G Internet Service such as a laptop, notebook, tablet or smart phone ("Device"); (iii) the address where you intend to use the EarthLink 4G Internet Service ("Primary Address"); and (iv) the shipping address for delivery of the EarthLink 4G Equipment if different from the Primary 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.
Your Primary Address must be included in the coverage area for the EarthLink 4G Internet Service ("Coverage Area") in order for you to subscribe to the EarthLink 4G Internet Service At Home.
4. USERNAMES AND PASSWORDS SECURITY
Upon subscription, you will receive a username, a password, and other account information. You will be responsible for (i) maintaining the confidentiality of your username and password and (ii) the use of your EarthLink 4G Internet Service by any person who uses your username and password to access your EarthLink 4G Internet Service, whether or not you specifically authorize such person's use. 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.
You are solely responsible for (i) maintaining the security of any Wi-Fi network you use, your Device and your data, including protection of your username and password; (ii) all usage on your Device; (iii) the encryption of any of your data; and (iv) 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 EarthLink 4G Internet Service
The Coverage Area and the minimum requirements for your Device to be able to use the EarthLink 4G Internet Service can be found on the EarthLink website located at www.earthlink.net . The EarthLink 4G Internet Service may not be available at all times in the Coverage Area. Various factors such as weather conditions, building structure or materials, network traffic congestion, and terrain that are beyond the control of EarthLink or EarthLink's third party providers, may affect the quality of the signal strength, available bandwidth and network speeds and the ability to access the Internet within the Coverage Area at any given time.
The EarthLink 4G Internet Service wirelessly connects up to 8 Devices. It includes 8 email boxes with 100 MB storage and free dial-up Internet access for use up to 20 hours per monthly billing cycle from any Device. 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 EarthLink 4G Internet Service at any time with or without notice to you.
6. SPECIFIC TERMS FOR USE OF THE EarthLink 4G Internet Service (including data allowance information)
Your billing plan will contain a monthly data allowance in a pre-defined amount (e.g., 10 gigabytes/month, 5 gigabytes/month, 4 gigabytes/month, 2 gigabytes/month, etc.). EarthLink will notify you via email when you are close to your monthly data allowance for the then-current monthly billing period. At that time, you will have the following options: (i) you may elect to purchase more data increments under an available and compatible rate plan then being offered by EarthLink for the remainder of your then-current monthly billing period; (ii) you may upgrade to a higher usage monthly plan, if available; or (iii) you may elect to stop all usage of your EarthLink 4G Internet Service until the conclusion of your then-current monthly billing period. You can monitor your EarthLink 4G Internet Service's data usage through your EarthLink online account portal, "My Account" located at https://myaccount.earthlink.net .
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 EarthLink 4G Internet 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.
7. LOCAL TELEPHONE, TOLL AND LONG DISTANCE CHARGE
When using the dial-up service included with your EarthLink 4G Internet Service subscription, you are solely responsible for determining if the use of a particular dial-up number will cause you to incur long-distance, international, toll, or any other charges. EarthLink does not guarantee that any dial-up access numbers EarthLink provides will be a local call from your location. EarthLink is not responsible for any long-distance, international, toll, or other charges you incur.
8. IMPORTANT INFORMATION REGARDING YOUR USE OF THE EarthLink 4G EQUIPMENT
The EarthLink 4G Equipment is authorized for use solely in connection with the EarthLink 4G Internet Service. You may not use (i) any other modem with the EarthLink 4G Internet Service At Home or (ii) any other hotspot with the EarthLink 4G Internet Service On-the-Go. At least 20 cm (i.e., 8 inches) of distance separating the EarthLink 4G Equipment from your body must be maintained at all times.
The installation, use, inspection, maintenance, repair, and removal of the EarthLink 4G Equipment may result in an EarthLink 4G Internet Service outage or potential damage to your Device. You are solely responsible for backing up all of your Device's data.
Data communicated or transmitted wirelessly may be delayed, corrupted (i.e., contain errors), or totally lost. Although significant delays or losses of data are rare when wireless products such as the EarthLink 4G Equipment are used in a normal manner with a well-constructed network, you are strongly encouraged never to use the EarthLink 4G Equipment in any situation(s) where failure to transmit or receive data could result in property damage or loss or in personal injury of any kind (including death) to the user or to any other party.
Under no circumstances should the EarthLink 4G Equipment be used in any areas (i) where blasting is in progress, (ii) where explosive atmospheres may be present, or (iii) that are near (a) medical or life support equipment or (b) any equipment which may be susceptible to any form of radio interference. In such areas, the EarthLink 4G Equipment MUST BE POWERED OFF AT ALL TIMES as the EarthLink 4G Equipment otherwise could transmit signals that might interfere with such equipment.
In addition, under no circumstances should the EarthLink 4G Mobile Hotspot be used in any aircraft, regardless of whether the aircraft is on the ground or in flight. In any aircraft, the EarthLink 4G Mobile Hotspot MUST BE POWERED OFF AT ALL TIMES as the EarthLink 4G Mobile Hotspot otherwise could transmit signals that might interfere with various onboard systems on such aircraft.
Furthermore, under no circumstances should the EarthLink 4G Mobile Hotspot be used by the driver or operator of any vehicle. Such use of the EarthLink 4G Mobile Hotspot will detract from the driver's or operator's control of that vehicle. In some jurisdictions, use of the EarthLink 4G Mobile Hotspot while driving or operating a vehicle constitutes a civil and/or criminal offense.
9. BILLING, PAYMENT AND PROVISIONING
You agree to pay the following fees: (i) the monthly subscription fees for your billing plan for the EarthLink 4G Internet Service; (ii) the shipping and handling charges for the EarthLink 4G Equipment and self-installation kit to you ; (iii) applicable taxes, surcharges, and fees required by any applicable government entity; and (iv) method of payment fees, if applicable. Your billing start date is the earlier of the first date that you use the EarthLink 4G Internet Service, or four (4) calendar days after the shipping date on the packing slip for the EarthLink 4G Equipment. 1
After your payment for the shipping and handling fees are processed, EarthLink will begin the provisioning process which includes shipping the EarthLink 4G Equipment to you.
You will be able to use the EarthLink 4G Internet 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 EarthLink 4G Internet 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 EarthLink 4G Internet Service including any additional charges incurred (e.g. 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 Agreement1. 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. 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. In the event that you request that EarthLink to mail you a paper invoice each month rather than emailing you an e-invoice, EarthLink will charge an account fee for each paper invoice.
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. 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.
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:
1375 Peachtree Street
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 (i) change fees and institute new fees associated with your EarthLink 4G Internet Service or any of your value added services upon email notice at least 30 days prior to the effective date of such new fee to your Contact Email Address and (ii) change 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 uses a collection agency or legal action to recover monies due, you agree to pay all fees arising from or relating to the recovery of such monies, including attorneys' fees.
All payments must be made in US dollars.
You may cancel your EarthLink 4G Internet Service only as follows:
Telephone Cancellation for the EarthLink 4G Internet Service: 1-888-327-8454 (1-888- EARTHLINK)
Fax Cancellation for the EarthLink 4G Internet Service: 1-404-795-1034 Include your account number and current telephone number.
Mail Cancellation for the EarthLink 4G Internet Service: Send registered or certified mail, return receipt requested to:
Cancel EarthLink 4G Internet Service
1375 Peachtree Street
Atlanta, GA 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 EarthLink 4G Internet 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 EarthLink 4G Internet Service after the end of the billing period, EarthLink will refund any erroneous charges upon proof of such cancellation.
EarthLink may terminate your EarthLink 4G Internet Service account 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 EarthLink 4G Internet Service is prohibited by law. 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 EarthLink 4G Internet Service, without further notice to you, your EarthLink 4G Internet Service will be terminated and you will no longer have Internet access through your Device or the EarthLink 4G Equipment, which includes access to your email, files or other information on EarthLink's servers. If your EarthLink 4G Internet Service is cancelled by EarthLink due to non-payment and then your EarthLink 4G Internet Service is reactivated at a later date, EarthLink will bill you an account reactivation fee.
In the event that your EarthLink 4G Equipment is lost or stolen or you become aware that the EarthLink 4G Internet Service is being used fraudulently, you should contact EarthLink Customer Service immediately so that EarthLink can suspend your EarthLink 4G Internet Service. EarthLink also may suspend your EarthLink 4G Internet Service account in the event you reach your data limit of that EarthLink 4G Internet Service account. You will not be charged a reactivation fee to resume a suspended account.
If the effective termination or cancellation date of your EarthLink 4G Internet Service is within the first 365 days of your EarthLink 4G Internet Service, you must ship your EarthLink 4G Equipment to EarthLink using the prepaid return shipping label that EarthLink will send to you. The EarthLink 4G Equipment must be returned to EarthLink within 30 days of the date your return shipping label is mailed to you , as stated in EarthLink's return merchandise authorization letter (RMA). If you do not return the EarthLink 4G Equipment within such 30 day period, EarthLink will charge you a non-returned equipment fee.2
11. MONITORING THE EarthLink 4G Internet Service
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 EarthLink 4G Internet Service will not be interrupted and cannot always provide advance notice of such outages.
12. GENERAL DISCLAIMERS AND WARRANTIES
THE EARTHLINK 4G INTERNET SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EARTHLINK AND ITS SUPPLIERS AND VENDORS DO NOT WARRANT THAT THE EARTHLINK 4G INTERNET 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 EARTHLINK 4G INTERNET SERVICE (INCLUDING THE EARTHLINK 4G 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 EARTHLINK 4G INTERNET SERVICE; (VI) YOUR RELIANCE ON OR USE OF THE EARTHLINK 4G INTERNET 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 EARTHLINK 4G INTERNET SERVICE; (IX) USE OF THE EARTHLINK 4G INTERNET 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 4G 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 YOUR EARTHLINK 4G 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 EARTHLINK 4G INTERNET Service WILL NOT EXCEED THE TOTAL AMOUNT OF 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.
13. ADDITIONAL EARTHLINK 4G EQUIPMENT WARRANTIES AND DISCLAIMERS
EarthLink warrants the new EarthLink 4G Equipment 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 4G Equipment ("Warranty Period"). This warranty applies to the original end-user purchaser and is not transferable. This warranty does not cover defects resulting from use of the EarthLink 4G Equipment 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.
The warranty for the EarthLink 4G Equipment includes the following:
You must contact EarthLink Technical Support via telephone or chat support about your defective EarthLink 4G Equipment.
If EarthLink Technical Support confirms during the Warranty Period that your EarthLink 4G Equipment is defective, EarthLink will ship to you a free new or refurbished EarthLink 4G Equipment (no shipping or handling fee) in a package with a prepaid return shipping label for you to use to ship your defective EarthLink 4G Equipment back to EarthLink. In order for the return to be processed correctly, you will need to use the EarthLink provided prepaid shipping label. If your defective EarthLink 4G Equipment is not shipped back to EarthLink with the prepaid return shipping label within 30 days from the date your return shipping label was mailed to you, EarthLink will charge a non-return equipment fee to your account.
If EarthLink Technical Support confirms after the Warranty Period that your EarthLink 4G Equipment is defective, EarthLink will ship to you a free new or refurbished EarthLink 4G Equipment plus a shipping and handling fee. You will not need to ship back the defective EarthLink 4G Equipment.
EarthLink does not represent or warrant that installation by you of the EarthLink 4G Equipment will enable you to successfully access, operate or use the EarthLink 4G Internet Service.
EarthLink does not accept any responsibility whatsoever for damages of any kind resulting from (i) any delays or errors in data transmitted or received using the EarthLink 4G Equipment or (ii) any failure of the EarthLink 4G Equipment to transmit or receive such data.3
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 EarthLink 4G Internet Service or the use or misuse of the EarthLink 4G Internet Service by anyone else through your account including, but not limited to, use of the EarthLink 4G Internet 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 (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 CELL PHONE CALLING
You consent to receive notices, documents, disclosures and other communications 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 consent to receive Communications from EarthLink electronically or if you withdraw such consent, then you must stop using the EarthLink 4G Internet 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.
In addition, you hereby agree that your acceptance of this Agreement constitutes your written consent: (i) to EarthLink calling you at the phone number that you provided EarthLink in connection with your subscription to or use of the EarthLink 4G Service, and (ii) if you provided EarthLink with a mobile or cellular phone number, to EarthLink also texting you at such mobile or cellular phone number in connection with your subscription to or use of the EarthLink 4G Service. Consent to receiving autodialed marketing telephone calls and/or marketing texts from EarthLink is not required to purchase products or services from EarthLink.
You may exercise your option not to receive any marketing communications from EarthLink by going directly to https://myaccount.earthlink.net/cam/contactinfo.jsp or calling EarthLink Customer Service.
16. CUSTOMER AND TECHNICAL SUPPORT
For online customer support for the EarthLink 4G Internet 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.
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)
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 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.
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: General Counsel (Arbitration), EarthLink, Inc., 1375 Peachtree Street, N.E., 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.
18.3(2) Settlement Proposals
The amount of any settlement offer made by EarthLink or you shall 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, 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 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.
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 shall 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 (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 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 shall be null and void and all disputes shall be heard by a court.
18.10 Changes to Agreement to Arbitrate
If you were a subscriber to the EarthLink 4G Internet Service before November 27, 2013, you have the right to reject the changes to this Section 18 which changes were initially made and posted online in the Version of this Agreement dated November 27, 2013 by sending us written notice of such rejection to our Notice Address postmarked on or before January 31, 2014. Note that Section 18 has not been changed in this Version December 12, 2013. By rejecting the changes made in the Version November 27, 2013, you are agreeing that you will arbitrate any dispute between us in accordance with the language in Section 18 of Version August 1, 2013 of this Agreement.
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 the Version November 27, 2013.4
18.11 Notice to California Residents
California residents are entitled to the following information:
The EarthLink 4G Internet Service is provided by EarthLink, Inc., 1375 Peachtree Street, Atlanta, Georgia 30309.
Charges may vary depending on the type of EarthLink 4G Internet Service plan.
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.
This Section 18 will survive the termination of your EarthLink 4G Internet 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 . 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 EarthLink 4G Internet 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 EarthLink 4G Internet Service.
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: December 12, 2013
The following endnotes summarize the material revisions made in this December 12, 2013 version of this Agreement compared to the November 27, 2013 version of this Agreement.
1 The first paragraph in Section 9 was revised to clarify that EarthLink will not charge an upfront fee for the EarthLink Equipment to consumers who subscribe to the EarthLink 4G Internet Service on or after December 12, 2013.
2 The last paragraph in Section 10 was added to explain the return policy of your EarthLink 4G Equipment if your EarthLink 4G Internet Service is canceled or terminated within the first 365 days of your EarthLink 4G Internet Service.
3 Section 13 were revised to clarify the warranties for the EarthLink 4G Equipment and the procedures to obtain a replacement for a defective EarthLink 4G Equipment.
4 Section 18 of Version August 1, 2013 included the following language:
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be settled by arbitration, and administered by the American Arbitration Association under its Commercial Arbitration Rules. Any such arbitration will be governed by Georgia law. The arbitrator will be an expert in the Internet field and will be bound by the terms of this Agreement. The arbitrator's award will be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
ANY CUSTOMER SEEKING ARBITRATION PURSUANT TO THIS AGREEMENT WILL PURSUE SUCH ARBITRATION ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS ACTION OR REPRESENTATIVE BASIS PURSUANT TO THIS AGREEMENT.
California residents are entitled to the following information:
The Service is provided by EarthLink, Inc., 1375 Peachtree Street, 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.