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EARTHLINK DSL & HOME PHONE SERVICE AGREEMENT
READ THIS SERVICE AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE EARTHLINK DSL & HOME PHONE SERVICE.
1. AGREEMENT
This Service Agreement ("Agreement") is between EarthLink, Inc. ("EarthLink") and you for the EarthLink DSL & Home Phone Service ("Service"). This Agreement consists of the terms and conditions below, the specific terms of your billing plan for the Service, and the EarthLink Privacy Policy and the EarthLink Acceptable Use Policy which are found at www.earthlink.net/about/policies, all of which are incorporated herein.
By establishing an account with EarthLink, using any portion of the Service, or indicating agreement through the EarthLink website, you agree to be bound by this Agreement. This Agreement governs both the Service and any EarthLink-provided equipment, such as a modem, used in connection with the Service ("EarthLink-provided Equipment").
2. THE SERVICE
The Service consists of the combination of phone service and DSL internet access, with various other internet-related services such as email and web space. You must use EarthLink-provided Equipment for the DSL portion of the Service and your own equipment for the phone portion of the Service. From time to time EarthLink may impose reasonable rules and regulations regarding the use of the Service.
The Service will be used in a fixed location in qualifying areas of the United States and is for residential purposes only. This is not a business service. You will not resell or transfer the Service or the EarthLink-provided Equipment to another party without the prior written consent of EarthLink. EarthLink reserves the right to immediately terminate or modify your Service if EarthLink determines, in its sole and absolute discretion, that your use of the Service or the EarthLink-provided Equipment is, or at any time was, inconsistent with normal fixed residential usage patterns or for any other reason. You will use the Service and the EarthLink-provided Equipment only for lawful purposes.
The Service quality can vary depending on location, line quality, inside wiring, Internet traffic, and other factors beyond the control of EarthLink. EarthLink does NOT guarantee call quality or upload or download speeds and your sole remedy is to cancel the Service.
The Service may not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 711 and 911, which is provided for elsewhere in this Agreement) services in one or more (or all) service areas. If you obtained a phone number from us, it not be listed in any telephone directories. Phone numbers transferred from your local phone company may, however, be listed if they were listed prior to porting.
The Service may not be compatible with home security systems. You are responsible for contacting your alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.
If your inbox is approaching the storage limit for that Service, 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 and webmail accounts exceeding allotted space will, at EarthLink's discretion, not be able to receive new email messages.
The Service may include limited dial-up access. 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 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 are listed on the EarthLink homepage 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 Service or to restrict use of specific access numbers. Usernames, passwords, email addresses and IP addresses are EarthLink's property and EarthLink may alter or replace them at any time.
You represent that when you transmit, upload, post or submit any content, images or data using the Service you have the legal right to do so and that your use of such data or content does not violate 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.
3. EMERGENCY SERVICES DIALING 911
The Service supports E911 access to emergency services; however, there are important differences from traditional 911 services. Your 911 Dialing feature may not be operational until you receive confirmation from EarthLink that E911 has been activated.
E911 will not function under the following circumstances:
There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Service as compared to traditional 911 dialing over traditional public telephone networks.
4. 911 DISCLAIMER OF LIABILITY AND INDEMNIFICATION
EarthLink does not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. EarthLink disclaims all responsibility for the conduct of local emergency response centers and the national emergency calling center. EarthLink disclaims any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither EarthLink nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 911 Dialing service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You will defend, indemnify, and hold harmless EarthLink, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel.
If you are not comfortable with the limitations of the 911 Dialing service, you should consider having an alternate means of accessing traditional 911 or E911 services or terminating the Service.
5. ACCOUNT REQUIREMENTS
In order to order and receive the Service, you acknowledge that you are 18 years of age or older and you have legal authority to enter into this Agreement. You must provide EarthLink with a valid credit card or other form of payment. The Service must be available to and able to be provisioned at your location. You are responsible for charges for the Service regardless of the status of other underlying power or telephone services. Changing the Service may result in substantial interruption of the Service and may result in fees associated with cancellation and setting up a new account.
Your computer may have to meet certain minimum requirements, which may be found on the EarthLink homepage at: www.earthlink.net. You represent that when you transmit, upload, post or submit any content, images or data using the Service you have the legal right to do so and that your use of such data or content does not violate 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.
6. YOUR ACCOUNT, PASSWORD, AND SECURITY
Upon registration, you will receive a username, password, and other account information. You and members of your household are the only authorized users of your EarthLink account and must comply with this Agreement. You must keep your password confidential so that no one else may access the Service through your account. You must notify EarthLink immediately upon discovering any unauthorized use of your account.
Unless your service includes a Static IP, you will be allocated a Dynamic IP address. EarthLink reserves the right to timeout inactive connections. EarthLink technical support may be limited to EarthLink-provided Equipment, software and/or unmodified hardware. 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) 356-5864. EarthLink reserves the right to change limits at any time upon 30 days prior notice.
7. TERM AND PAYMENT
The effective date of this Agreement begins on your account billing start date, as indicated in your first invoice. You are subscribing to the Service for a 12 month subscription commitment ("12 Month Commitment"); and thereafter, the Agreement and the Service will be provided on a month to month basis until you cancel the Service in accordance with the cancellation terms of this Agreement. You will be billed on a monthly basis in advance of the month incurred. Certain charges may not appear on the bill for the same period in which they were incurred. Some long distance and other charges may appear on subsequent invoices. All payments will be made in US dollars.
EarthLink reserves the right to change the prices of the Service upon 30 days notice. EarthLink reserves the right to change features of the Service at any time. Current Service prices and features may be obtained by visiting our website www.earthlink.net or by calling (888) 356-5864.
You will be charged a monthly service fee, applicable taxes and other fees. Some billing plans may also include charges for hardware, shipping, activation, collection costs for delinquent fees, charges for insufficient funds, return items, chargebacks, reactivation fees, and early cancellation fees. EarthLink may offer, from time to time, certain promotions with different terms, activation fees, and monthly charges. You must provide accurate billing information including legal name, address, phone number, and credit card or debit card billing information, and report all changes to this information to EarthLink immediately. You agree to pay all taxes, surcharges, and fees set by the government. EarthLink may not always give advance notice of changes to these items.
You are responsible for any charges to your account. Questions regarding charges to an account should be directed to the EarthLink Customer Service Department at (888) 356-5864. All charges are considered valid unless disputed in writing within 30 days after the billing date. Adjustments will not be made for charges that are disputed more than 30 days after the billing date.
Charges may be billed to your credit card, debit card or bank account via electronic debit through ACH, as applicable, each month for the Service as well as any additional usage, services, taxes 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. If you provided EarthLink with a valid credit card or debit card to use for payment, you agree to maintain current credit card or debit card information on file with EarthLink at all times. 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 or debit card company to EarthLink.
If payment by check was approved by EarthLink, then payments by check must be received by EarthLink by the due date on the monthly invoice.
Your account will be automatically inactivated if you put a stop payment on your account with your financial institution in connection with payment of your monthly bill.
For fixed-location services for DSL, moving to another location will require the service to be re-provisioned at the new location. This may result in substantial interruption of the Service and will result in fees associated with cancellation and setting up a new account. Early termination charges will apply even if the cancellation is for reasons of a move to another location.
Delinquent accounts may be suspended or canceled at EarthLink's sole discretion. If you pay your monthly Service fee to a third party provider, your account also may be suspended for non-payment if your account is delinquent. If your account is suspended, you may be charged reinstatement fees to reactivate your account.
In the event that you change to a different EarthLink service or change the speed of your existing Service, consult with an EarthLink representative whether such change will affect your billing plan.
8. CANCELLATION
After the first 30 days from your Service activation date, canceling your Service prior to the last day of your 12 Month Commitment will result in an early termination fee. You will be responsible for any unbilled charges and the early termination fee all of which will immediately become due and payable. Expiration of the term or termination of the Service will not excuse you from paying all accrued and unpaid charges due under this Agreement.
EarthLink only accepts cancellation by phone, fax or U.S. Mail. EarthLink does NOT accept cancellations by email.
Phone Cancellation: 888-356-5864
Fax Cancellation: 404-795-1034. Please include your account number and a current phone number
Mail Cancellation: Send registered or certified mail, return receipt requested to:
EarthLink, Inc.
Cancel DSL & HOME Phone Service
1375 Peachtree Street
Level A
Atlanta, GA 30309
If you are dissatisfied with the Service or any related terms, conditions, rules, policies, guidelines, or practices, you can discontinue using the Service and cancel your account in accordance with the terms of this Agreement.
Cancellation will be effective at the end of the billing cycle after the notice of cancellation is received and processed by EarthLink. Upon cancellation, email service will be terminated and all files stored on EarthLink servers will be deleted. You will be issued a confirmation number as your only proof of cancellation. EarthLink does not grant refunds or credits for any prior use including partial use during the last month of cancellation. If you do cancel by one of the prescribed methods and are mistakenly billed again, EarthLink will refund any erroneous charges upon proof of cancellation.
EarthLink may terminate this Agreement, your account, or your use of the Service for any reason, including, without limitation, if EarthLink, in its sole discretion, believes you have violated the terms of this Agreement, or if you fail to pay any charges when due. Termination notice will be sent to you by email or U.S. Mail to the address you provided to EarthLink in connection with the Service. Sections 8, 9, 10, 13, 14, 15 and 17 of this Agreement will survive termination of this Agreement.
9. RETURNED EARTHLINK-PROVIDED EQUIPMENT
All EarthLink-provided Equipment returns must have an EarthLink provided shipping label or they will be rejected. EarthLink will mail you a shipping label upon cancellation and will not accept returns without an EarthLink supplied shipping label.
If you cancel your account and return all EarthLink-provided Equipment in their original packaging (or equivalent) using an EarthLink supplied return shipping label within 30 days from your Service activation date as determined by EarthLink, EarthLink will refund certain fees incurred up to the cancellation date, excluding charges for certain usage, including but not limited to, international calls, directory assistance and other metered usage, applicable taxes or other governmental fees, postage and handling. Except in certain cases in EarthLinks sole discretion (e.g., improperly invoiced charges) EarthLink will not refund any fees after 30 days from your Service activation date.
EarthLink, in its discretion, may replace EarthLink-provided Equipment on an active account due to manufacturer's defect at no cost to you under all of the following conditions: You call the EarthLink Technical Support Department within one year of your original shipping date; The EarthLink Technical Support Department certifies that a defect has occurred and; You return the EarthLink-provided Equipment in the original packaging (or equivalent) using an EarthLink provided shipping label within 30 days of certification. Upon certification, EarthLink will ship replacement EarthLink-provided Equipment to you. Failure to return the certified EarthLink-provided Equipment within 30 days of certification will result in a charge for the new EarthLink-provided Equipment. EarthLink will not accept the return of EarthLink-provided Equipment without EarthLink Technical Support Department certification and shipping label after 30 days from the original shipping date. EarthLink will not replace any EarthLink-provided Equipment without a fee after one year from the original shipping date of the EarthLink-provided Equipment; however, you can purchase new EarthLinkprovided Equipment after the first year.
10. NUMBER TRANSFER ON SERVICE TERMINATION
Upon the termination of your Service, EarthLink may, in its sole and absolute discretion, release to your new service provider the phone number that you ported (transferred or moved over) to us from your previous service provider and used in connection with your Service. EarthLinks number porting policies and procedures will be consistent with the applicable laws and regulations.
If you want to keep your number, do NOT cancel the Service until you have made arrangements with another provider to transfer your number first.
11. INSTALLATION
If you are unable to perform self-installation, EarthLink may suggest an outside vendor to help install the Service. You will be responsible for all costs and scheduling associated with the installation by a third party. You are also responsible for all inside wiring repair necessary to install the service. If you are not the owner of the premises, you warrant that you have obtained the consent of the owner for vendor personnel and/or its agents to enter the premises for installation. You will indemnify and hold EarthLink harmless from and against any claims of the owner of the premises arising out of the performance of this Agreement.
EarthLink will work with you to schedule a reasonable time for the installation and a reasonable time to reschedule. Late rescheduling or failure to be present at the scheduled time and during the entire installation will result in a missed appointment fee. The installation, use, inspection, maintenance, repair, and removal of the EarthLink-provided Equipment may result in service outage or potential damage to your computer.
EARTHLINK DOES NOT REPRESENT, WARRANT, OR COVENANT THAT INSTALLATION BY YOU OR A THIRD PARTY CHOSEN BY YOU WILL ENABLE YOU TO SUCCESSFULLY ACCESS, OPERATE, OR USE THE SERVICE, NOR THAT SUCH INSTALLATION WILL NOT CAUSE DAMAGE TO YOUR COMPUTER, DATA, SOFTWARE, FILES, OR PERIPHERALS. IN ADDITION, EARTHLINK WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, OR FOR THE FAILURE TO PROPERLY INSTALL, ACCESS, USE, OR OPERATE THE EARTHLINK-PROVIDED EQUIPMENT, OTHER EQUIPMENT OR THE SERVICE BECAUSE OF YOUR INSTALLATION.THE FOREGOING LIMITATION OF LIABILITY IS IN ADDITION TO AND WILL IN NO WAY BE CONSTRUED TO LIMIT ANY ANDALL LIMITATIONS OF LIABILITY SET FORTH ELSEWHERE IN THIS AGREEMENT.
Because of the complex nature of internet service, availability, and the underlying infrastructure, it may not be possible to provide the Service to everyone. In its sole discretion, EarthLink may cancel the installation process and refund any money that you have paid. EarthLink will notify you of its intent to cancel as soon as reasonably possible. It may take 30, 60, 90 or more days to determine if EarthLink is able to provide the Service. EarthLink will have no responsibility whatsoever for claims arising out of its failure or refusal to complete the installation or provide the Service.
The installation, use, inspection, maintenance, repair, and removal of the EarthLink-provided Equipment may result in service outage or potential damage to your computer. You are solely responsible for backing up all of your existing computer files and data. EarthLink and its employees, 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.
12. MONITORING THE SERVICE
EarthLink has no obligation to monitor the Service, but may do so if EarthLink reasonably believes that to do so would be needed to: comply with laws, regulations, or governmental or legal requests; operate the technical aspects of the Service in a proper, effective, and reasonable manner; or protect itself, its employees, its customers or others as described in the EarthLink Privacy Policy. EarthLink would only disclose information to third parties regarding your use of the Service in a manner that is consistent with the EarthLink Privacy Policy. EarthLink may immediately remove your material or information from EarthLink's servers, in whole or in part, which EarthLink reasonably believes to infringe on another's property rights or to violate the EarthLink Acceptable Use Policy or other laws, rules or regulations.
13. DISCLAIMERS AND WARRANTIES
CERTAIN EARTHLINK-PROVIDED EQUIPMENT MAY BE SUBJECT TO THIRD PARTY WARRANTIES, WHICH MAY BE PASSED THROUGH EARTHLINK TO YOU AT NO ADDITIONAL CHARGE. EARTHLINK WILL COMPLY WITH ALL REASONABLE REQUIREMENTS NECESSARY TO AFFECT THE PASS THROUGH OF THE WARRANTY TO YOU. AT ITS SOLE OPTION WITHIN THE 12 MONTH COMMITMENT TERM, EARTHLINK OR ITS AGENT MAY REPLACE A DEFECTIVE HARDWARE ON BEHALF OF THE MANUFACTURER, PROVIDED YOU FOLLOW ALL APPLICABLE PROCEDURES AND OBTAIN A RETURN MATERIALS AUTHORIZATION (RMA) NUMBER.THIS WARRANTY DOES NOT COVER DEFECTS RESULTING FROM ACTS OUTSIDE OF EARTHLINK'S CONTROL, USE CONTRARY TO SPECIFICATIONS OR INSTRUCTIONS, OR REPAIR OR MODIFICATION BY ANYONE OTHER THAN EARTHLINK OR ITS CONTRACTOR. EARTHLINK RESERVES THE RIGHT TO MODIFY THIS WARRANTY AT ANY TIME. EARTHLINK WILL NOT BE RESPONSIBLE FOR ANY EARTHLINK-PROVIDED EQUIPMENT DAMAGED BY ANY NATURALLY OCCURRING EVENT SUCH AS LIGHTNING, FLOOD, OR EARTHQUAKE OR OTHER EVENTS OUT OF EARTHLINK'S CONTROL SUCH AS FIRE, POWER SURGES, OR THE ACTS OF OTHERS.
YOU ACKNOWLEDGE THAT THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EARTHLINK DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. EARTHLINK MAKES NO EXPRESS WARRANTIES AND WAIVES 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 ITS REPRESENTATIVES WILL CREATE A WARRANTY. EARTHLINK AND ITS EMPLOYEES ARE NOT LIABLE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SERVICE OR THE INTERNET INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. IN ANY EVENT, EARTHLINK'S CUMULATIVE LIABILITY TO YOU FOR ANY ANDALL CLAIMS RELATING TO THE USE OF THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM. EARTHLINK DOES NOT WARRANT OR GUARANTEE THAT THE SERVICE CAN BE PROVISIONED TO YOUR LOCATION EVEN IF EARTHLINK HAS ACCEPTED YOUR ORDER FOR SERVICE.
EARTHLINK, ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND CONTRACTORS (COLLECTIVELY, "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 EARTHLINK-PROVIDED 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 SERVICE;THE USE OF THE EARTHLINK-PROVIDED 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 ALL SERVICES, PRODUCTS,AND OTHER INFORMATION, OR THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE PROVIDED THROUGH THE USE OF THE SERVICE.
THE FOREGOING LIMITATION APPLIES TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF 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 SOLE AND EXCLUSIVE REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET FORTH IN THIS AGREEMENT. ANY WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS.YOU MAY ALSO HAVE OTHER RIGHTS, IN CERTAIN STATES WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.
14. INDEMNIFICATION
You will defend, indemnify and hold the EarthLink Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages (direct, indirect and consequential), attorney's fees and expenses that the EarthLink Parties may sustain or incur by reason of your use of the Service or the EarthLink-provided Equipment or the use of the Service or the EarthLink-provided Equipment by anyone else in your household (i) in violation of applicable laws, regulations or the terms of this Agreement, (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 use of the Service, or (iv) in any manner that harms any person resulting in the personal injury or death of any person or in damage to or loss of any tangible or intangible (including data) property.
15. JURISDICTION
This Agreement is governed by Georgia law without regard to conflict of law provisions. 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 and will be held in Atlanta, Georgia. The arbitrator will be an expert in the field of Internet services. 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. There will be no class action arbitration pursuant to this Agreement.
California residents are entitled to the following information:
16. REVISIONS TO THE AGREEMENT
EarthLink may revise, amend, or modify this Agreement from time to time. Notice of any revision, amendment, or modification will be posted on the EarthLink Web site: (http://www.earthlink.net/about/policies/ ) and/or on your start pages and/or by email and/or in our various publications and mailings to your primary EarthLink email account and will be effective on the date noted in the posting. This Agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of EarthLink. By continuing to use the Service after the amendments are effective, you accept and agree to abide by them.
17. MISCELLANEOUS
This Agreement, the EarthLink Privacy Policy, the EarthLink Acceptable Use Policy, and the terms of your billing plan and policies posted on EarthLink's website constitute the entire agreement between you and EarthLink with respect to your use of the 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. 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 construes 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 due to 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.
18. HOME NETWORKING TECHNICAL SUPPORT POLICY
Due to the wide range of hardware and software configurations and compatibility, it may not be possible for EarthLink to provide technical support for your current set of products. In certain circumstances, it may be necessary to refer you to the manufacturer of your hardware or software vendor for technical support of their products. EarthLink will use its best effort to provide support for the home networking configurations listed on our website at: www.earthlink.net/about/policies/homenetworking_terms.faces.
Version: 03-05-2009
