EARTHLINK CABLE INTERNET SERVICE AGREEMENT
READ THIS SERVICE AGREEMENT CAREFULLY BEFORE USING THE EARTHLINK CABLE INTERNET ACCESS SERVICE.
By establishing an account with EarthLink or using the Cable Internet Service, you agree to be bound by this Agreement and to use the Cable 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 begins on your account billing start date, as indicated on your first invoice from your selected cable provider ("Cable Provider"). If the billing plan for the Cable Internet Service has a specific term commitment (for example, 12 months), this Agreement will continue on a month-to-month basis after such term commitment is over until you notify EarthLink otherwise. This Agreement terminates upon the termination of your Cable Internet Service account. Sections 7, 10, 11, 12, 14, 15 and 17 herein will survive termination or expiration of this Agreement.
The Cable Provider in your area will supply you with a cable modem and any other equipment needed for the installation ("Equipment"). Some Cable Providers may provide the professional installation at no additional charge. Other Cable Providers may charge a professional installation fee. In the event that you prefer to use your own cable modem that you purchased previously or that you used with another Internet service provider, check with the Cable Provider to verify if this is possible.
If you prefer to install the Equipment yourself, ask the Cable Provider if this self-installation option is available for your area. If self-installation is available from the Cable Provider and elected by you, the Cable Provider will supply self-installation kits and instructions and any related installation services as described in the list of charges. You authorize the Cable Provider to make any preparations to the premises necessary for the installation, maintenance, or removal of the Equipment.
The Cable Provider may require an initial payment at the time of installation of the Cable Internet Service. The Cable Provider's list of charges should describe the installation services and related Equipment that will be available for a standard installation. Any Equipment provided by the Cable Provider to you (other than any Network Interface Card ("NIC") installed in the computer) will remain the property of the Cable Provider except as otherwise required by applicable law. Neither EarthLink nor the Cable Provider will have any obligation to install, support, maintain, repair, or replace (i) any computer or (ii) any cable modem or cabling or other equipment that is provided by a company other than EarthLink or the Cable Provider. When your Cable Internet Service is canceled, the policies of the Cable Provider will govern how to return the Equipment provided by the Cable Provider.
The Cable Internet Service speed may vary depending on location, line quality, inside wiring, Internet traffic, and other factors beyond the control of EarthLink. When using the Cable Internet 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, including simultaneous login charges. EarthLink does not guarantee that any dial-up access numbers EarthLink provides to you will be a local call from your location. EarthLink is not responsible for any long-distance, toll, or other charges you incur. Toll-free (800, 888, 877), international, and simultaneous login access costs will be extra. Current prices and features are listed on the EarthLink Website located at www.earthlink.net. EarthLink may change its POP numbers at any time. EarthLink reserves the right to direct you to use certain numbers to access the Cable Internet Service or to restrict use of specific access numbers.
If your inbox is approaching its storage limit, it also will be noted visually on your web mail and EarthLink also will send you email notices to your EarthLink email address notifying you that you are approaching your email storage limit. Email accounts exceeding allotted email space may, depending on the billing plan and at EarthLink's discretion, be suspended and be transferred to a compressed temporary file or storage or may be deleted.
The Cable Internet Service billing plan permits up to 20 hours per month of dial-up connection to the Internet from only one computer at a time. If two or more computers are logged into one EarthLink account to access the Internet at the same time ("Simultaneous Usage"), Simultaneous Usage charges will be accrued 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, the use of two or more dial-up connections from one EarthLink account at the same time to access multiple email addresses associated with that account will accrue Simultaneous Usage charges.
The Cable Provider may limit the amount of data that you can upload and/or download each month through the Cable Internet Service. If Comcast is the Cable Provider for your Cable Internet Service, then your monthly data usage cannot exceed 250 gigabytes. Data usage, also known as bandwidth usage, is the total amount of data, photos, videos and other files that you send, receive, download and upload over a specific period of time. Comcast will call those customers who exceed the 250 gigabyte monthly consumption limit to inform them of how much data per month the account has used, help them identify the source of such excessive data usage, suggest ways to reduce data usage and explain the consequences of continuing to exceed the 250 gigabyte monthly usage cap, including termination of the Cable Internet Service. If within six months of the first call from Comcast about such excessive use, a customer continues to exceed the 250 gigabyte monthly consumption limit, then such customer's Cable Internet Service may be terminated. Customers whose Cable Internet Service is terminated as a result of exceeding the 250 gigabyte monthly usage cap will be prohibited from subscribing to the Cable Internet Service for a year following the applicable termination date. For more information on this 250 gigabytes monthly data usage cap, go to Frequently Asked Questions - Usage Cap, EarthLink Internet Cable Service powered by Comcast.
The installation, use, inspection, maintenance, repair, and removal of the Equipment may result in service outage or potential damage to your computer. You are solely responsible for backing up all of your existing computer files and data. EarthLink and its employees, officers, directors, agents, contractors, and representatives will have no liability whatsoever for any damage to or loss or destruction of any of your hardware, software, files, data, or peripherals. You assume responsibility for impacts to or loss of any warranty associated with the opening of your computer for installation purposes.
You represent that when you transmit, upload, post or submit any content, images or data using the Cable Internet Service you have the legal right to do so and that your use of such data or content does not violate the 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, message boards, chat rooms, social networks or online services.
EarthLink reserves the right to change any of the features, content or applications of the Cable Internet Service at any time with or without notice to you.
5. ACCOUNT REQUREMENTS
In order to subscribe to and receive the Cable Internet Service, you acknowledge that you are 18 years of age or older, you have legal authority to enter into this Agreement and the Cable Internet Service must be available in your location. You must provide EarthLink with your name, address, contact telephone number and a valid credit card, debit card or other EarthLink approved payment methods for the Service. You represent that all information you provided during the registration process is accurate and complete and that you will update such information with EarthLink should it change.
Your computer may have to meet certain minimum requirements, which may be found on the EarthLink Website located at www.earthlink.net. You agree that you are responsible for the security of your computer and data including, but not limited to, the encryption of data and the protection of you usernames and passwords.
EarthLink may accept or reject any potential subscriber in its sole discretion. EarthLink reserves the right to verify the accuracy of the information you submit in connection with your registration and your account and you consent to such verification.
6. BILLING AND PAYMENT
The Cable Provider will bill you for the Cable Internet Service. Your cable bill will show charges for the Cable Internet Service, and any applicable taxes, surcharges, and fees set by the government. Changing your plan's Cable Internet Service’s speed, if available, may affect your monthly fee.
If you elected to purchase any EarthLink value added services (EarthLink Value Added Services), such as Attack Shield, charges for such EarthLink Value Added Services and any billing fees, taxes, surcharges and fees required by a government entity, if applicable, will be billed to your method of payment on file with EarthLink. EarthLink is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges for the EarthLink Value Added Services billed by EarthLink. All monthly fees for the EarthLink Value Added Service will be due in advance of the month incurred. All payments will be made in US dollars. You must provide accurate billing information including legal name, address, telephone number, and credit card or debit card billing information, and report all changes to this information promptly to EarthLink. If EarthLink uses a collection agency or uses 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.1
If you provided EarthLink with a valid credit card or debit card, you agree to maintain valid and current credit card or debit card information on file with EarthLink at all times. EarthLink reserves the right to validate the payment method information you provide at registration for the Cable Internet Service and/or EarthLink Value Added Services, if applicable, and account updates including attempting up to a $1.00 authorization to your credit card or debit card which is not actually billed. 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, automatic billing options or updated credit card or debit card information provided by your credit card company or debit card company to EarthLink.
f payment by check has been accepted by EarthLink for the EarthLink Value Added Services, then payments by check must be received by EarthLink by the due date listed in your monthly invoice. When you pay your fees by check, you authorize EarthLink to electronically process your payment. If your check is processed electronically, your checking account may be debited on the same date as 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 you a fee for returned checks or returned bank drafts from your financial institution.2
In the event that you change to a different EarthLink Internet service or change the speed of your existing Cable Internet Service, consult with an EarthLink representative and the Cable Provider, if applicable, whether such change will affect your billing plan.
EarthLink reserves the right to change fees and institute new fees at any time upon 30 days prior notice.
To cancel the Cable Internet Service, you must contact both the Cable Provider and EarthLink. To contact EarthLink to cancel the Cable Internet Service or EarthLink Value Added Services, you must do one of the following:
Telephone Cancellation: (888) EARTHLINK (888-327-8454)
Fax Cancellation: Please include your account number and a current phone number and fax to 404-795- 1034.
Mail Cancellation: Send registered or certified mail, return receipt requested to:
Cancel Cable Internet Service
1375 Peachtree Street
Atlanta, GA 30309
Upon cancellation of the Cable Internet Service, your email services will be terminated and you will no longer have access to your email, files or other information on EarthLink's servers.
EarthLink only accepts cancellation by phone, fax or U.S. Mail. EarthLink does NOT accept cancellations by email. EarthLink will issue a confirmation number to you by email as your proof of cancellation of your Cable Internet Service.
If your account for the EarthLink Value Added Services is delinquent because (i) charges on your method of payment were refused for any reason, (ii) you put a stop payment on your financial institution account in connection with your monthly bill, or (ii) you failed to make payment when due, EarthLink will contact you via your email address on file, via your U.S. mailing address on file or by telephone with notice of the date you need to pay your EarthLink Value Added Service fees in order to avoid cancelation of you EarthLink Value Added Service account. EarthLink may use various means to recover monies due.
EarthLink Value Added Services’ 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 of cancellation. If you cancel your EarthLink Value Added Service by one of the prescribed methods above and are mistakenly billed after the end of the billing period, EarthLink will refund any erroneous charges upon proof of such cancellation.
8. YOUR ACCOUNT, PASSWORD, AND SECURITY
Upon registration, you will receive a username, password, and other account information. You and members of your household (i) are the only authorized users of your EarthLink account and (ii) must comply with this Agreement.
You and members of your household who have access to your secure account information must keep your user ID and password confidential so that no one else may access your account information or ability to connect through your account. You must notify EarthLink immediately upon discovering any unauthorized use of your secure account information by calling (888) EARTHLINK (888-327-8454). In addition, you agree that you are solely responsible for maintaining the security of your computer(s) and data including the encryption of data. EarthLink recommends that you use commercial anti-virus, anti-spy and firewall software including appropriate updating of such software.
Unless the Cable Internet Service includes a Static IP, you will be allocated a Dynamic IP address. EarthLink reserves the right to timeout inactive connections. Your email and webspace may be inactivated if you exceed storage limits. You may reduce the size or purchase additional space. Usage and webspace exceeding the allotted amount of bandwidth may be billed for excess traffic. Email, webspace, and bandwidth limits are posted throughout the EarthLink Website at www.earthlink.net. These limits may also be obtained by calling (888) EARTHLINK (888-327-8454). EarthLink reserves the right to change limits at any time upon 30 days prior notice. Policies regarding use of the personal web pages are set forth in the EarthLink Acceptable Use Policy.
9. MONITORING THE SERVICE
10. DISCLAIMERS AND WARRANTIES
YOU ACKNOWLEDGE THAT THE CABLE INTERNET SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EARTHLINK, ITS SUPPLIERS AND VENDORS AND THE CABLE PROVIDER DO NOT WARRANT THAT THE CABLE INTERNET SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. EARTHLINK, ITS SUPPLIERS AND VENDORS AND THE CABLE PROVIDER 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 REGARDING ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH EARTHLINK OR THE INTERNET GENERALLY.
NO ADVICE OR INFORMATION GIVEN BY EARTHLINK OR THE CABLE PROVIDER WILL CREATE A WARRANTY. EARTHLINK, ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, SUPPLIERS AND VENDORS AND THE CABLE PROVIDER (COLLECTIVELY REFERRED TO AS "EARTHLINK PARTIES") WILL HAVE NO LIABILITY FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE CABLE INTERNET SERVICE, THE EARTHLINK VALUE ADDED SERVICES OR THE INTERNET INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. IN ANY EVENT, THE EARTHLINK PARTIES' CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE CABLE INTERNET SERVICE AND THE EARTHLINK VALUE ADDED SERVICES WILL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM. EARTHLINK DOES NOT WARRANT OR GUARANTEE THAT THE CABLE INTERNET SERVICE CAN BE PROVISIONED TO YOUR LOCATION EVEN IF EARTHLINK HAS ACCEPTED YOUR ORDER FOR THE CABLE INTERNET SERVICE.
THE EARTHLINK PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM: OTHER USERS ACCESSING YOUR COMPUTER; SECURITY BREACHES; EAVESDROPPING; DENIAL OF SERVICE ATTACKS; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; YOUR RELIANCE ON OR USE OF THE EQUIPMENT OR SERVICE, OR THE MISTAKES, OMISSION, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE OF THE EQUIPMENT OR CABLE INTERNET SERVICE; THE USE OF THE EQUIPMENT OR SERVICE BY YOU OR A THIRD PARTY THAT INFRINGES THE COPYRIGHT, PATENT, TRADEMARK,TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INTELLECTUAL PROPERTY RIGHTS, PROPRIETARY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY; THE ACCURACY, COMPLETENESS,AND USEFULNESS OF THE CABLE INTERNET SERVICES, THE EARTHLINK VALUE ADDED SERVICES OR THE MERCHANTABILITY OF ALL MERCHANDISE PROVIDED THROUGH THE USE OF THE SERVICE.
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 OR THE EARTHLINK PARTIES IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE. YOUR SOLE AND EXCLUSIVE REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET FORTH THIS AGREEMENT. ANY WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO 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.
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 by reason of your use of the Cable Internet Service or the use of the Cable Internet Service by anyone else through your account including, use of the Cable Internet Service (i) in violation of applicable laws or regulations or the terms of this Agreement, or any other EarthLink agreement or policy; (ii) to transmit any messages, content, images or other information via the Internet; (iii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with such use; or (iv) 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
You consent to receive notices, documents, disclosures and other communications from EarthLink (Communications) in an electronic format to your EarthLink contact email address on file, and agree that the Communications provided to you by EarthLink electronically satisfy any legal requirement that such communications would satisfy if they were in a writing. Your consent to receive Communications from EarthLink electronically to your EarthLink contact email address on file and EarthLinks agreement to do so applies to all of your transactions and interactions with EarthLink. 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 Cable Internet Service. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between EarthLink and you prior to the time you withdraw your consent.
13. CUSTOMER SERVICE AND TECHNICAL SUPPORT
Contact EarthLink Customer Service via telephone or live chat at http://www.earthlink.net/about/contact/ in connection with questions about (i) your EarthLink email account, (ii) EarthLink software or (iii) billing or the functionality of your EarthLink Value Added Services
Contact your Cable Provider customer service for questions about (i) billing for your Cable Internet Service, (ii) Equipment, (iii) installation of Equipment installation and (iv) signal levels.
14. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
15. DISPUTE RESOLUTION BY BINDING ARBITRATION
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 field of Internet services 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 Cable Internet Service is provided by EarthLink, Inc., 1375 Peachtree Street, Atlanta, Georgia 30309.
Charges vary depending on the type of service. EarthLink reserves the right to change fees and institute new fees at any time upon 30 days prior notice.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814 or by telephone at (916) 445-1254.
Actions arising from this Agreement may be brought in an appropriate California small claims court.
16. REVISIONS TO THE AGREEMENT
EarthLink may revise, amend, or modify this Agreement at any time by posting the revised version on the EarthLink Web Site. 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 the Agreement will be noted in endnotes of the revised version. Your continued use of the Cable 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 Cable 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 will be 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 will amend or replace such 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.
The following endnotes summarize the revisions made in this July 7, 2011 version of the Agreement compared to the previous version of the Agreement dated May 6, 2011.
1The last sentence in the second paragraph in Section 6 was added to clarify that you are responsible for fees in connection with recovering monies due.
2The last sentence in the fourth paragraph in Section 6 was added to clarify that you will be charged a fee for returned checks or returned bank drafts.