EARTHLINK DSL & HOME PHONE SERVICE AGREEMENT
READ THIS SERVICE AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE EARTHLINK DSL & HOME PHONE SERVICE.
By establishing an account with EarthLink or using the Service, you agree to be bound by this Agreement and to use the Service in compliance with the terms of this Agreement and all applicable federal, state and local laws, rules and regulations. This Agreement governs both the Service and any EarthLink-provided equipment, such as the DSL modem and filters used in connection with the Service ("EarthLink-provided Equipment").
2. TERM OF THIS AGREEMENT
The effective date of this Agreement begins on your account billing start date, as indicated on 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 the Service is canceled in accordance with the terms of this Agreement. Upon the cancellation of the Service, this Agreement will terminate. Sections 8, 10, 11, 12, 14, 15, 16, 18, 19 and 21 of this Agreement will survive termination of this Agreement.
3. 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 cancel 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 EarthLink, it not be listed in any phone directories. Phone numbers transferred from your local phone company may; however, be listed if they were listed prior to porting.
The Service may not be compatible with home security systems. You are responsible for contacting your alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.
The email storage limits for your billing plan are posted on the EarthLink website located at www.earthlink.net. If your mailbox is approaching the storage limit for your Service, it will be noted visually on your web mail. EarthLink also will send email notices to this mailbox stating you are approaching your email storage limit. When your mailbox exceeds the allotted email storage space, you will receive a second email warning from EarthLink that your email storage is over quota and then EarthLink will stop transmitting email messages to your inbox. Any incoming emails will be bounced with an error message to the sender stating that your mailbox is full. After you delete some email messages to free up some space, new messages will be accepted again. You may purchase additional storage up to a fixed limit as described at https://myaccount.earthlink.net or https://myacount.peoplepc.com.
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.
Your Service billing plan permits up to 20 hours per month of dial-up modem access to the Internet. In the event that two or more modem connections are logged into your account at the same time, then simultaneous usage (“Simultaneous Usage”) charges will accrue for that month. The Simultaneous Usage fee is $1.00 per hour, pro-rated to the minute, through the end of the monthly billing cycle. The Simultaneous Usage fee will be added to your monthly bill. Your primary connection to the Internet via DSL does not count directly toward the Simultaneous Usage calculations. Although some EarthLink access plans come with multiple email addresses, 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.
Certain billing plans may offer the ability to create your personal webspace with the web design tools provided by EarthLink. The maximum webspace available for such use is 10MB per email account. Limitations may include, but are not limited to, certain software and certain operating systems. You agree to use your personal webspace in compliance with the terms of the EarthLink Acceptable Use Policy. In the event that one of your personal webspace exceeds 10 MB, no additional information can be uploaded to it. If the traffic on one of your personal webspace exceeds 1 GB of webspace in a calendar month, such personal webspace will be shut down until the next calendar month. If you want more space or bandwidth for your personal webspace, you can subscribe to the EarthLink Web Hosting Service.
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.
EarthLink reserves the right to change any of the features, content or applications of the Service at any time with or without notice to you.
4. EMERGENCY SERVICES DIALING 911
The Service supports E911 access to emergency services; however, there are important differences from traditional 911 services. You must give EarthLink the physical location where you will be using the Service for E911 service to function properly. You hereby acknowledge that registering your physical location where you will be using the Service is your responsibility.
Your 911 dialing feature ("EarthLink's E911 Dialing") may not be operational until you receive confirmation from EarthLink that your E911 has been activated.
EarthLink’s E911 Dialing will not function under any one of the following circumstances:
There may be a greater possibility of network congestion and/or reduced speed in the routing of an EarthLink E911 Dialing call made utilizing the Service as compared to traditional 911 dialing over traditional public telephone networks.
5. 911 DISCLAIMER OF LIABILITY AND INDEMNIFICATION
EarthLink does not have any control over whether, or the manner in which, calls using EarthLink E911 Dialing are answered or addressed by any local emergency response center. EarthLink disclaims all responsibility for the conduct of local emergency response centers and the national emergency calling center. EarthLink disclaims any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither EarthLink nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to EarthLink’s E911 Dialing unless such claims or causes of action arose from EarthLink’s gross negligence, recklessness or willful misconduct. You will defend, indemnify, and hold harmless EarthLink, its officers, directors, employees, subsidiaries, affiliates, suppliers and agents and any other service provider who furnishes services to you in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including EarthLink’s E911 Dialing, incorrectly routed EarthLink’s E911 Dialing calls, and/or the inability of any user of the Service to be able to use EarthLink’s E911 Dialing or access emergency service personnel.
If you are not comfortable with the limitations of EarthLink’s E911 Dialing service, you should consider having an alternate means of accessing traditional 911 or other E911 services or canceling the Service.
6. 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, 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. The Service must be available to and able to be provisioned at your location.
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.
For the DSL portion of the Service, 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.
7. YOUR ACCOUNT, PASSWORD, AND SECURITY
Upon registration, you will receive (i) a username and a password for the DSL portion of the Service and (ii) other account information. You will be responsible for use of the DSL portion of the Service by any person who uses your username and password to access the for the DSL portion of the Service, whether or not you specifically authorize such person’s use or actions, including maintaining the confidentiality of your username and password. You must notify EarthLink immediately upon discovering any unauthorized use of your account information. Usernames, passwords, email addresses and IP addresses are EarthLink's property and EarthLink may alter or replace them at any time.
You are solely responsible for (i) maintaining the security of your computer(s) and data, including protection of your username and password, (ii) the encryption of data, and (iii) the back-up and restoration of your computer and data. EarthLink recommends that you use anti-virus, anti-spyware and firewall software including appropriately updating such software.
8. INSTALLATION OF EARTHLINK-PROVIDED EQUIPMENT
EarthLink charges a shipping and handling fee for shipping the DSL self-installation kit to you. The free DSL self-installation kit includes the software needed to begin using the DSL Service and the EarthLink-provided Equipment (DSL modem and filters). After your payment of the shipping and handling fee clears, EarthLink will begin the provisioning process which includes shipping the DSL self-installation kit to you. EarthLink recommends use of such EarthLink-provided Equipment in order to ensure proper ongoing support for the DSL Service; however, if you decide to use another provider's modem, the provisioning process will begin immediately after sign-up.
If you are unable to perform self-installation, EarthLink may suggest an outside vendor to help install the EarthLink –provided Equipment. You will be responsible for all costs and scheduling associated with the installation by a third party. You are also responsible for all inside wiring repair necessary to install the service. If you are not the owner of the premises, you warrant that you have obtained the consent of the owner for vendor personnel and/or its agents to enter the premises for installation. You will indemnify and hold EarthLink harmless from and against any claims of the owner of the premises arising out of the performance of this Agreement.
The installation, use, maintenance, inspection, repair and removal of the EarthLink-provided Equipment may result in damage to your computer or a service outage. You are solely responsible for backing up all of your existing computer files and data. You assume responsibility for impacts to or loss of any warranty associated with the opening of your computer for installation purposes.
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. 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 SUCH INSTALLATION.THE FOREGOING LIMITATION OF LIABILITY IS IN ADDITION TO AND WILL IN NO WAY BE CONSTRUED TO LIMIT ANY AND ALL LIMITATIONS OF LIABILITY SET FORTH ELSEWHERE IN THIS AGREEMENT.
Because of the complex nature, availability and underlying infrastructure of Internet service, 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.
9. BILLING AND PAYMENT
You are subscribing to the Service for the 12 Month Commitment period; and thereafter, the Service will be provided on a month to month basis until the Service is canceled in accordance with the terms of this Agreement.
You agree to pay the monthly fees in your billing plan and to pay (i) applicable taxes, surcharges, and fees required by any applicable government entity and (ii) other applicable fees and charges. Some Service plans may also include method of payment fees or shipping fees. All monthly fees for the Service will be due in advance of the month incurred. Certain charges may not appear on the bill for the same period in which they were incurred. All payments must be made in US dollars.
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 promptly to EarthLink.
All charges are considered valid unless disputed in writing within 30 days of the billing date and mailed to:
1375 Peachtree Street
Atlanta, Georgia 30309
Charges may be billed on or after your billing cycle date to your method of payment on file each month for the Service including any additional usage, services, taxes and fees. EarthLink is not responsible for any charges resulting from charges billed by EarthLink including, but not limited to, overdrawn accounts or exceeding credit card limits. EarthLink may use various means to recover monies due. 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 to use for payment, you agree to maintain valid and 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 or automatic billing options. In addition, if your credit or debit card company provides updated credit card 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 card or debit card on file.
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 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 day 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 you financial institution.2
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.
You are responsible for any charges to your account. 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. EarthLink reserves the right to validate the payment method information you provide at registration and account updates including attempting up to a $1.00 authorization to your credit card or debit card which is not actually billed.
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 how such change will affect your billing plan.
EarthLink reserves the right to change the monthly fees of your billing plan upon 30 days prior notice to your EarthLink contact email address on file prior to the effective date of such new monthly fee.
To cancel your account, you must do one of the following:
Phone Cancellation: 1-888-327-8454
Fax Cancellation: 1- 404-795-1034. Please include your account number and a current phone number.
Mail Cancellation: Send registered or certified mail, return receipt requested to:
1375 Peachtree Street
Atlanta, Georgia 30309
EarthLink does not accept email cancellations.
If you cancel your account, you can specify the date you want your Service canceled. In the event that you port out (transfer) your existing phone number to another carrier and you do not contact EarthLink that you are cancelling your Service, EarthLink will use such port out date as the date of your cancellation of the Service.
Cancellation will be effective at the end of the current billing cycle. If you cancelled your Service by contacting EarthLink by phone, fax or mail, 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. Certain charges, such as 411 and international calling charges, will be billed after the account cancellation date.
If you cancel by one of the prescribed methods and are mistakenly billed the monthly fee for your Service after the end of the billing period, EarthLink will refund any erroneous charges upon proof of such cancellation. Upon cancellation, email service will be terminated and all files stored on EarthLink servers will be deleted.
EarthLink may cancel your 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, you failed to make payment when due or you did not provide EarthLink with a new charge card, or debit card expiration date or expiration date of any other method of payment before the existing date expired; (ii) EarthLink, in its sole discretion, believes you have breached this Agreement, other EarthLink agreements or other EarthLink policies; or (iii) your use of the Service is prohibited by law. Such cancellation notice will be sent to you via (i) your EarthLink contact email address on file or (ii) U.S. Mail to your mailing address on file. Accounts are set to close at the end of the current billing period. When canceling by phone, you will be issued a confirmation number as your only proof of cancellation.
After the first 30 days from your Service activation date, the cancellation of your Service or downgrading or changing your Service to another EarthLink Service prior to the last day of your 12 Month Commitment will result in an early termination fee.
Cancellation of your account at any time will not excuse you from paying all accrued and unpaid charges due under this Agreement. After your account cancellation date, you also will be responsible for any unbilled charges, such as international calling and directory assistance charges and the early termination fee of which will become due and payable. If you decide to reactivate your canceled account, EarthLink will bill you a reactivation fee.3
11. 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 your account is canceled and you return all EarthLink-provided Equipment in their original packaging (or equivalent) using an EarthLink supplied return shipping label within 35 days from the shipping date of your EarthLink -provided Equipment, 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 EarthLink’s sole discretion (e.g., improperly invoiced charges), EarthLink will not refund any fees after 35 days from the original shipping date of your EarthLink-provided Equipment.
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 EarthLink-provided Equipment after the first year.
12. NUMBER TRANSFER ON SERVICE INACTIVATION
Upon the inactivation date of your Service, EarthLink may, in its sole and absolute discretion, release to your new service provider the phone number that you ported (transferred or moved over) to EarthLink from your previous service provider and used in connection with your Service if:
EarthLink’s number porting policies and procedures will be consistent with the applicable laws and regulations. If you want to keep your number, do NOT cancel the Service until you have made arrangements with another provider to transfer your number first.
13. MONITORING THE SERVICE
14. 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, TERRORISM, OR OTHER ACTS OF THIRD PARTIES.
YOU ACKNOWLEDGE THAT THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EARTHLINK AND ITS SUPPLIERS AND VENDORS DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. EARTHLINK AND ITS SUPPLIERS AND VENDORS MAKE NO EXPRESS WARRANTIES 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 , ITS SUPPLIERS OR VENDORS WILL CREATE A WARRANTY.
EARTHLINK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND VENDORS (COLLECTIVELY, "EARTHLINK PARTIES") WILL NOT BE 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, THE CUMULATIVE LIABILITY OF ANY EARTHLINK PARTY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM. EARTHLINK DOES NOT WARRANT OR GUARANTEE THAT THE SERVICE CAN BE PROVISIONED TO YOUR LOCATION EVEN IF EARTHLINK HAS ACCEPTED YOUR ORDER FOR THE SERVICE.
THE EARTHLINK PARTIES WILL NOT BE LIABLE FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM: THE FAILURE TO PROPERLY INSTALL, ACCESS, USE, OR OPERATE THE EARTHLINK-PROVIDED EQUIPMENT OR SERVICE; 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 THE SERVICE; THE MISTAKES, OMISSION, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA OR SOFTWARE, INVALID DESTINATIONS, OR ANY FAILURE OF PERFORMANCE OF THE EARTHLINK-PROVIDED 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 INDUSTRIAL OR INTELLECTUAL PROPERTY RIGHTS, PROPRIETARY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY; THE ACCURACY, COMPLETENESS,AND USEFULNESS OF THE SERVICES, PRODUCTS, AND OTHER INFORMATION; OR MERCHANTABILITY OF ANY MERCHANDISE OR OTHER ITEMS PROVIDED OR SOLD BY THIRD PARTY WEB SITES INCLUDING CO-BRANDED WEB SITES LINKED FROM THE EARTHLINK WEB SITE 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 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. 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 or someone else’s use of the Service through your account (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).
16. 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 EarthLink’s 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 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.
17. CUSTOMER SERVICE AND TECHNICAL SUPPORT
For online customer support including troubleshooting email and connection issues, billing issues, and online account maintenance, go to http://support.earthlink.net/.
To contact Customer Service via phone call 888-327-8454 or live chat, go to http://www.earthlink.net/about/contact/.
Because of 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 a software vendor for technical support of their products.
18. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
19. 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 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 as further described in Section 9 above.
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 phone at (916) 445-1254.
Actions arising from this Agreement may be brought in an appropriate California small claims court.
20. REVISIONS TO 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 this Agreement will be noted in endnotes of the revised version. Your continued use of the Service after the date of the revised version constitutes your acceptance of all of the revisions. If you do not agree to the revisions in the revised version, your sole and exclusive remedy will be to cancel your account and 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. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration provision in Section 19; 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 this Agreement compared to the previous version of this Agreement dated May 6, 2011.
1 The last sentence is the fourth paragraph in Section 9 was added to clarify that you will be responsible for fees related to recovering monies due.
2 The last sentence in the sixth paragraph in Section 9 was added to clarify that you will be charged a fee for returned checks or returned bank drafts.
3 The last sentence in the last paragraph in Section 10 was added to clarify that you will be charged a reactivation fee if you reactivate your canceled account.