EARTHLINK CABLE INTERNET SERVICE AGREEMENT
READ THIS SERVICE AGREEMENT CAREFULLY BEFORE USING THE EARTHLINK CABLE INTERNET ACCESS 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.
2. TERM OF THIS AGREEMENT
The effective date of this Agreement is the date on which you subscribe to the Cable Internet Service. This Agreement terminates upon the termination of your Cable Internet Service account. Sections 7, 8, 9, 11, 12, 15, 16 and 18 of this Agreement will survive termination of this Agreement.
3. SUBSCRIPTION INFORMATION
To order and subscribe to the Cable 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 (i) a valid credit card, debit card or other approved payment method for the Cable Internet Service, (ii) your billing address, (iii) your shipping address if different from your billing address, and (iv) your telephone number. You represent that all information you provide during the subscription process is accurate and complete and that you will update such information should any of it change.
The Cable Internet Service must be available to your location. EarthLink may accept or reject any potential subscriber in its sole discretion. Even if EarthLink has accepted your order, EarthLink cannot guarantee that the Cable Internet Service can be provisioned to your address. The minimum computer requirements for the Cable Internet Service are located at http://www.earthlink.net/access/cable.faces.
4. USERNAMES AND PASSWORDS, AND SECURITY
Upon subscription, you will receive a username, 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 Cable Internet Service by any person who uses your username and password to access your Cable 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 Internet Protocol ("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 use in connection with the Cable Internet Service; (ii) any WI-FI network you use in connection with the Cable Internet 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 CABLE INTERNET SERVICE AND RELATED SERVICES
The Cable Internet Service speed may vary depending on location, line quality, inside wiring, Internet traffic, the cable provider in your area ("Cable Provider") and other factors beyond the control of EarthLink.
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 your 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, including photos, videos and other files that you send, receive, download and upload over a specific period of time. Comcast will call those subscribers 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 (6) months of the first call from Comcast about such excessive use you continue to exceed the 250 gigabyte monthly consumption limit, then your Cable Internet Service may be terminated. Subscribers 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 http://support.earthlink.net/articles/cable/earthlink-powered-by-comcast-usage-cap.php.
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 .
If your web mail 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 the primary EarthLink email address selected by or assigned to you during the subscription process ("Contact Email Address") notifying you that you are approaching your email storage limit. Web mail 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.
EarthLink does not guarantee that any dial-up access numbers EarthLink provides to you will be a local call from your location. When using the dial-up connection to access the Internet, you are solely responsible for determining if use of a particular dial-up number will cause you to incur long-distance or toll charges. 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. EarthLink may change its POP numbers at any time.
The Cable Internet Service billing plan permits up to 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.
EarthLink reserves the right to change any of the features, content or applications of the Cable Internet Service or any of your EarthLink Value Added Services at any time with or without notice to you.
The Cable Provider will supply you with a cable modem and any other equipment needed for the installation ("Equipment"). Some Cable Providers may provide 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 (for example, that you purchased previously or that you used with another Internet service provider), check with the Cable Provider to verify if this is possible.
The Cable Provider may require an initial payment at the time of installation of the Equipment. 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 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 resulting from the installation, use, repair or removal of the Equipment.
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 your premises necessary for the installation, maintenance, or removal of the Equipment. 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.
7 . BILLING AND PAYMENT FOR YOUR CABLE INTERNET SERVICE
The Cable Provider will bill you for your usage of the Cable Internet Service. Your bill from the Cable Provider will show charges for the Cable Internet Service, and any applicable taxes, surcharges, and other fees charged by the Cable Provider. The Cable Provider's billing policies will apply to the invoicing and payment of your monthly bill from the Cable Provider.
Changing your Cable Internet Service's speed, if available, may affect your monthly fee. Billing plans may vary by geographic location and Cable Provider.
If 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, to determine whether such change will affect your billing plan.
EarthLink and the Cable Provider reserve the right to change fees and institute new fees (for example, equipment fees) associated with your Cable Internet 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.
8. BILLING AND PAYMENT FOR YOUR EARTHLINK VALUE ADDED SERVICES
EarthLink will bill to your method of payment on file with EarthLink (i) any fees charged for your EarthLink Value Added Services, if any, (ii) any other fees associated with your account (e.g. Simultaneous Usage Fees or long distance fees), and (iii) any applicable taxes, surcharges, and fees. EarthLink is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by EarthLink. The monthly fees for your EarthLink Value Added Services will be due in advance of the month incurred. All payments must be made in US dollars.
If you provided EarthLink with a valid credit or debit card to pay for your EarthLink Value Added Services, 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 EarthLink Value Added 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. You may request that EarthLink send a paper invoice to your billing mailing address each month rather than an e-invoice. EarthLink will charge you an account fee for each such 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 Value Added Services 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 for the EarthLink Value Added Services are considered valid unless disputed in writing within thirty (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 thirty (30) days after the billing date.
EarthLink may use various means to recover monies due in connection with your Value Added Services. 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.
EarthLink reserves the right to change (i) fees and institute new fees associated with your EarthLink Value Added Services 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 and (ii) 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.
To cancel your Cable Internet Service, you must contact both the Cable Provider and EarthLink.
To contact EarthLink to cancel your Cable Internet Service and/or your EarthLink Value Added Services, you must do one of the following:
Telephone Cancellation: EarthLink toll-free number at (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 and/or Cancel EarthLink Value Added Services
1375 Peachtree Street
Atlanta, GA 30309
EarthLink only accepts cancellation by phone, fax or U.S. Mail. EarthLink does NOT accept cancellations by email.
EarthLink will issue a cancellation confirmation number to you by email. If you are cancelling the Cable Internet Service, you also must contact the Cable Provider in order for the cancellation to be completed.
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 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 prior to cancellation. If you cancel your EarthLink Value Added Service by one of the prescribed methods listed above and are mistakenly billed after the end of the billing period, EarthLink will refund any erroneous charges upon proof of such cancellation.
EarthLink may terminate your Cable Internet Service and/or your EarthLink Value Added 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 Cable Internet Service or an EarthLink Value Added 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. If your Cable Internet Services account or your EarthLink Value Added Services account is terminated due to non-payment and then is reactivated at a later date, you may be billed an account reactivation fee.
10. MONITORING THE CABLE INTERNET SERVICE
EarthLink may take any legal and technical remedies to prevent the violation of this Agreement or any other EarthLink agreement or policy including agreements and policies and to enforce the EarthLink Acceptable Use Policy .
11. DISCLAIMERS AND LIMITATIONS OF LIABILITY, WARRANTIES
THE CABLE INTERNET SERVICE AND THE EARTHLINK VALUE ADDED SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EARTHLINK, ITS SUPPLIERS AND VENDORS AND YOUR CABLE PROVIDER DO NOT WARRANT THAT THE CABLE INTERNET SERVICE OR THE EARTHLINK VALUE ADDED SERVICES 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, PRODUCT, EQUIPMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EARTHLINK, ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, RESELLERS, SUPPLIERS AND VENDORS (COLLECTIVELY "EARTHLINK PARTIES") WILL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, ACTIONS, SUITS, COSTS OR DAMAGES, INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, IN CONNECTION WITH THE CABLE INTERNET SERVICE ARISING FROM: (I) CABLE INTERNET SERVICE AVAILABILITY OR QUALITY, REGARDLESS OF THE CAUSES OF THE PROBLEMS; (II) OTHER USERS ACCESSING YOUR DEVICE; (III) THE INSTALLATION OF THE Equipment BY YOU OR BY ANOTHER PARTY; (IV) VARIATIONS IN THE SPEED OR BANDWIDTH AVAILABILITY OF YOUR DEVICE; (V) AVAILABILITY OR QUALITY OF CABLE INTERNET SERVICE REGARDLESS OF THE CAUSE(S) OF THE PROBLEMS; (VI) SECURITY BREACHES; (VII) EAVESDROPPING; (VIII) INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE CABLE INTERNET SERVICE; (IX) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE), DELETION OF FILES, ERRORS, OR DEFECTS; (X) DELAYS OR ERRORS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE OF THE CABLE INTERNET SERVICE; (Xi) YOUR RELIANCE ON OR USE OF THE CABLE INTERNET SERVICE; (XII) THE USE OF THE CABLE 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 (XII) THE 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.
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 Cable Internet Service or the use or misuse of the Cable Internet Service by anyone else through your account including, but not limited to, use or misuse 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) 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 Equipment you warrant that you have obtained the consent of the owner for your Cable Provider or its 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 Equipment.
13. 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 Cable Internet Service and EarthLink Value Added Services. 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 Cable Internet Service or the EarthLink Value Added Services, 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 Cable Internet Service or EarthLink Value Added Services. 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.
14. CUSTOMER SERVICE AND TECHNICAL SUPPORT
For online customer support including troubleshooting email, billing issues for the EarthLink Value Added Services, 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/.
Contact your Cable Provider customer service for questions about (i) billing for your Cable Internet Service, (ii) Equipment, (iii) installation of Equipment, (iv) connection issues, or (v) signal levels.
15. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
16. 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.
16.2 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 Cable Internet 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.
16.3 Informal Dispute Resolution Prior to Arbitration
16.3(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 30308 ("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.
16.3(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.
16.3(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.
16.4 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.)
16.5 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 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 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.
16.7 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.
16.8 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 16.8 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.
16.9 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.
16.10 Changes to Agreement to Arbitrate
If you were a subscriber to the Cable Internet Service before November 27, 2013, you have the right to reject the changes to this Section 16 set forth in this Version November 27, 2013 by sending us written notice of such rejection to our Notice Address postmarked on or before January 31, 2014. By rejecting these changes, you are agreeing that you will arbitrate any dispute between us in accordance with the language in Section 16 of Version August 1, 2013. 2
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 16 of this Version November 27, 2013.
16.11 Notice to California Residents
California residents are entitled to the following information:
The Cable Internet Service and EarthLink Value Added Services are provided by EarthLink, Inc., 1375 Peachtree Street, Atlanta, Georgia 30309.
Charges may vary depending on the type of Cable Internet Service plan and type of EarthLink Value Added 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.
This Section 16 will survive the termination of your Cable Internet Service with EarthLink.
17. 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 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 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 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 16; 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: November 27, 2013
The following endnotes summarize the material revisions made in this November 27, 2013 version of this Agreement compared to the previous version of this Agreement dated August 1, 2013.
1The second sentence in the second paragraph in Section 8 was added to facilitate access to the Recurring Automatic Bank Draft Authorization Agreement for those who use the ACH Debit method of payment for payment of the monthly fees for their EarthLink Value Added Services.
2Section 16 was revised to clarify the arbitration procedures. Section 16 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.