EARTHLINK DSL & HOME PHONE SERVICE AGREEMENT
READ THIS SERVICE AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE EARTHLINK DSL & HOME PHONE 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.
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 the DSL modem and filters used in connection with the Service ("EarthLink Modem").
2. TERM OF THIS AGREEMENT
The effective date of this Agreement is the date on which you subscribed to the Service. This Agreement terminates upon the termination of your Service account. Sections 7, 8, 11, 12, 15, 16, 17, 19, 20 and 22 of this Agreement will survive termination of this Agreement.
3. SUBSCRIPTION INFORMATION
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 (i) a valid credit card, debit card or other EarthLink approved payment method for the Service, (ii) your billing address, and (iii) your shipping address, if different from your billing address, for shipping the EarthLink Modem. You represent that all information you provided during the subscription process is accurate and complete and that you will update such information with EarthLink should any of it change.
The Service must be available to your location. EarthLink may accept or reject any potential subscriber to the Service in its sole discretion. Even if EarthLink has accepted your order, EarthLink cannot guarantee that the Service can be provisioned to your address.
4. USERNAMES AND PASSWORDS, SECURITY
Upon subscription, you will receive a username, a password, and other account information. You will be responsible for (i) maintaining the confidentiality of your username and password, and (ii) the use of your Service by any person who uses your username and password to access the Service, whether or not you specifically authorize such person's use. You must notify EarthLink immediately upon discovering any unauthorized use of your account information. Usernames, passwords, email addresses and IP addresses are EarthLink's property and EarthLink may alter or replace them at any time.
You are solely responsible for maintaining the security of (i) the device (such as a desktop, laptop, notebook, tablet or smart phone ("Device") you will use in connection with the Service; (ii) any WI-FI network you will use in connection with the 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 SERVICES
The Service consists of the combination of DSL Internet access and phone service and DSL Internet access, with various other Internet-related services such as email and web space. You should use the EarthLink Modem for the DSL portion of the Service and your own equipment for the phone portion of the Service. EarthLink's self-installation kit includes the software that you may use to access the Service ("EarthLink Access Software"). The minimum computer requirements for the EarthLink Access Software are located at www.earthlink.net
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 Modem 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 Modem 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 Modem 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 will 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.
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. EarthLink is not responsible for any long-distance, toll, or other charges you incur. 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.
The Service also includes a 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 EarthLink account to access the Internet is counted. For example, if you have two Devices logged in from 10:00 a.m. to 11:00 a.m., your total usage for that time period will be 2 hours of usage. If your dial-up connection usage exceeds 20 hours per month, you will be charged an additional $1.00 per hour (up to a maximum of $21.95 per month), pro-rated to the minute, through the end of the monthly billing cycle.
EarthLink reserves the right to change any of the features, content or applications of the Service at any time with or without notice to you.
6. 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. iii
7. E911 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.
8. SPECIFIC TERMS FOR THE EARTHLINK MODEM
In the event that an EarthLink customer service representative confirms that your DSL Modem is not technically feasible, EarthLink will ship a new EarthLink Modem to you.
If you are unable to perform self-installation, EarthLink may suggest an outside vendor to help install the new EarthLink Modem. 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 an EarthLink Modem 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.
9. PROVISIONING, 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.
If your billing plan is based on a monthly subscription fee, you will be billed a flat monthly fee. If your billing plan is based on usage, you will be billed each month based on usage. In addition, your bill will include (i) taxes, surcharges, and fees required by any applicable government entity and (ii) shipping and handling fees, if applicable. Certain charges may not appear on the bill for the same period in which they were incurred.
If your billing plan is based on a monthly subscription fee, you will be billed a flat monthly fee. If your billing plan is based on usage, you will be billed each month based on usage. In addition, your bill will include (i) taxes, surcharges, and fees required by any applicable government entity and (ii) shipping and handling fees. All payments must be made in US dollars.
For monthly subscription billing plans, you will be able to use the Service for any consecutive monthly period that has been paid in advance as described in the acceptance materials that you received as part of you sales transaction or on your order confirmation. For example, if your billing cycle begins on the sixth day of the month, then your payment due date (i.e. the date that the amount of your full monthly Service fee, including any and all applicable taxes, must be received by EarthLink) will be on the fifth day of the next month and of each month thereafter.
Charges may be billed on or after your billing cycle date to your method of payment on file each month for the Service including any additional charges incurred (e.g. taxes and fees). EarthLink is not responsible for any fees resulting from charges billed by EarthLink including, but not limited to, overdrawn accounts or exceeding credit card limits.
If you provided EarthLink with a valid credit or debit card, you agree to maintain valid and current credit or debit card information with EarthLink at all times. If you authorized EarthLink to automatically deduct (" ACH Debit ") your monthly Service fees and any other charges, fees, or taxes billed to you, from your checking or savings bank account, then you hereby reaffirm your agreement to the Recurring Automatic Bank Draft Authorization Agreement1. You acknowledge and agree that you authorize EarthLink and that EarthLink does not need to obtain any additional authorization from you for any recurring payments or automatic billing options. In addition, if your credit or debit card company provides updated credit or debit card information to EarthLink, you acknowledge that EarthLink does not need to obtain authorization from you for EarthLink to use such information to update your credit or debit card. EarthLink will email an e-invoice to your primary EarthLink email address selected by or assigned to you during the subscription process ("Contact Email Address") each month or if you designated a different billing email address, EarthLink will email the e-invoice to such billing email address each month. 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 account will be automatically inactivated if you put a stop payment on your account with your financial institution in connection with the payment of your monthly bill.
All charges are considered valid unless disputed in writing within 30 days of the billing date and mailed to:
1375 Peachtree Street
Atlanta, Georgia 30309
Adjustments will not be made for charges that are disputed more than 30 days after the billing date.
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.
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 (i) change the fees associated with your Service and institute new fees (e.g. equipment fees) upon email notice at least 30 days prior to the effective date of such new fee to your Contact Email Address and (ii) change the 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.
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.
10. BILLING PLAN FEATURES (INCLUDING EMAIL STORAGE AND WEBSPACE)
The billing plans for the Service may vary by geographic location, phone carrier and cable provider. In the event that you change to a different Service, prior to changing Service consult with an EarthLink representative regarding how such change will affect your billing plan.
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 / .
Certain billing plans may offer the ability to create your personal webspace. 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.
11. CANCELLATION AND TERMINATION
To cancel your Service you must do one of the following:
Telephone Cancellation: 1-888- 327-8454
Fax Cancellation: 1-404-795-1034 *include your account number and current telephone number.
Mail Cancellation: Send registered or certified mail, return receipt requested to:
Cancel DSL & Home Phone Service
1375 Peachtree Street
Atlanta, GA 30309
*Include your account number and current telephone number.
EarthLink does NOT accept cancellations by email.
Cancellation will be effective at the end of the current billing cycle. EarthLink will issue a confirmation number to you by email as proof of cancellation of your Service. Accounts are set to close at the end of the current billing period. EarthLink does not grant refunds or credits for any prior use including partial use during the last month prior to cancellation. 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 listed above and are mistakenly billed for your Service after the end of the billing period, EarthLink will refund any erroneous charges upon proof of such cancellation.
In the event that you port out (transfer) your existing phone number to another carrier and you do not contact EarthLink that you are canceling your Service, EarthLink will use such port out date as the date of your cancellation of the Service.
EarthLink may terminate your 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 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 Service account is canceled by EarthLink due to non-payment and then your Service is reactivated at a later date, EarthLink will bill you an account reactivation fee.
If you move your Service or change your local telephone company and EarthLink can provide the Service at the new location or on the new telephone line, you must pay a reactivation fee because this change requires a new installation.
On the inactivation date of your Service, without further notice to you, your Service will be terminated and you will no longer have Internet access which includes access to your email, files or other information on EarthLink's servers.
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.
If your Service is reactivated upon your request, EarthLink may bill you a Service reactivation fee.
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. USE OF THE SERVICE
EarthLink may take any legal and technical remedies to enforce or prevent the violation of this Agreement or any other EarthLink agreement or policy including the EarthLink Acceptable Use Policy .
14. MONITORING THE SERVICE
EarthLink will use commercially reasonable efforts to schedule any maintenance outages in a way that minimizes the impact on subscribers; however, EarthLink cannot guarantee that your Service will not be interrupted and cannot always provide advance notice of such outages.
15. DISCLAIMERS AND LIMITATIONs OF LIABILITY
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, PRODUCT, EQUIPMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EARTHLINK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND VENDORS (COLLECTIVELY "EARTHLINK PARTIES") WILL HAVE NOT LIABILITY FOR ANY CLAIMS, LOSSES, ACTIONS, SUITS, COSTS OR DAMAGES, INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, IN CONNECTION WITH THE SERVICE, OR THE EARTHLINK MODEM DIRECTLY OR INDIRECTLY, INCLUDING ARISING FROM: (I) SERVICE AVAILABILITY OR QUALITY, REGARDLESS OF THE CAUSES OF THE PROBLEMS; (II) OTHER USERS ACCESSING YOUR DEVICE; (III) THE INSTALLATION OF THE EARTHLINK MODEM BY YOU OR BY A THIRD PARTY; (IV) VARIATIONS IN THE SPEED OR BANDWIDTH AVAILABILITY OF YOUR DEVICE; (V) SECURITY BREACHES; (VI) EAVESDROPPING; (VII) INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (VIII) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE), DELETION OF FILES, ERRORS, OR DEFECTS; (iX) DELAYS OR ERRORS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE OF THE SERVICE; (X) YOUR RELIANCE ON OR USE OF THE SERVICE; (XI) THE USE OF THE 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 Service or the use or misuse of the Service by anyone else through your account including, but not limited to, use or misuse of the Service (i) in violation of applicable laws, 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 EarthLink Modem, you warrant that you have obtained the consent of the owner for EarthLink or vendor personnel and/or 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 EarthLink Modem.
17. 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 Service. The withdrawal of your consent will not affect the legal validity and enforceability of any electronic Communications provided or business transacted between EarthLink and you prior to the time you withdraw your consent.
In addition, you hereby agree that your acceptance of this Agreement constitutes your written consent: (i) to EarthLink calling you at the phone number that you provided EarthLink in connection with your subscription to or use of the Service, and (ii) if you provided EarthLink with a mobile or cellular phone number, to EarthLink also texting you at such mobile or cellular phone number in connection with your subscription to or use of the Service. Consent to receiving autodialed marketing telephone calls and/or marketing texts from EarthLink is not required to purchase products or services from EarthLink.
You may exercise your option not to receive any marketing communications from EarthLink by going directly to https://myaccount.earthlink.net/cam/contactinfo.jsp or calling EarthLink customer service.
18. CUSTOMER AND TECHNICAL SUPPORT
For online customer support for your Service, including troubleshooting email, certain connection issues, billing issues, setting up your email, and online account maintenance, go to http://support.earthlink.net/ . EarthLink may provide technical support for certain computer software configurations and browser setups for problems connecting to the Internet through laptops, notebooks and tablets, but not for smart phones. However, EarthLink may refer you to the manufacturer of any hardware or software for technical support.
To contact EarthLink Customer Service via telephone or live chat, go to http://www.earthlink.net/about/contact/ .
19. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
20. 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.
20.2 Agreement to Arbitrate
EarthLink and you agree to resolve all disputes and claims between us through binding arbitration by the American Arbitration Association ("AAA"). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- Claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
- Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- Claims that may arise after the termination of this Agreement.
References to "EarthLink," "you," and "us" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Services under this Agreement or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court rather than by arbitration if the claim qualifies for small claims court in a location where jurisdiction and venue over EarthLink and you is proper. This agreement to arbitrate does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.
You agree that, by entering into this Agreement, you and EarthLink are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act ("FAA") governs the interpretation and enforcement of this provision.
20.3 Informal Dispute Resolution Prior to Arbitration
20.3(1) Notice of Dispute
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). A Notice to EarthLink should be addressed to: General Counsel (Arbitration), EarthLink, Inc., 1375 Peachtree Street, N.E., Atlanta, Georgia 30309 ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). A Notice to you will be addressed to the billing address that EarthLink has on file for you.
20.3(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.
20.3(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.
20.4 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.)
20.5 Arbitration Procedures
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the AAA, as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org, or by calling the AAA at 1-800-778-7879. One arbitrator, who is selected under the AAA Rules, will conduct the arbitration. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for a court to decide. Unless EarthLink and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. The right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
If an award issued by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the AAA by a written notice of appeal filed within 30 days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the AAA. The AAA will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within 120 days of the date of the appealing party's notice of appeal. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which exists under the FAA. If an award issued by the arbitrator does not exceed $75,000, any appeal rights from the award will be governed by the FAA.
20.7 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.
20.8 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 20.8 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.
20.9 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.
20.10 Changes to Agreement to Arbitrate
If you were a subscriber to the Service before November 27, 2013, you have the right to reject the changes to this Section 20 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 20 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 20 of this Version November 27, 2013.
20.11 Notice to California Residents
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.
This Section 20 will survive the termination of your Service with EarthLink.
21. REVISIONS TO THIS AGREEMENT
EarthLink may revise, amend, or modify this Agreement at any time by posting the revised version of this Agreement on the EarthLink Web Site located at www.earthlink.net . The revised version will be effective on the date that it is posted as stated at the end of the revised version. The material changes to this Agreement will be noted in endnotes of the revised version. Your continued use of the 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 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 20; 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 seventh paragraph in Section 9 was added to facilitate access to the Recurring Automatic Bank Draft Authorization Agreement for those who use the ACH Debit method of payment.
22Section 20 was revised was revised to clarify the arbitration procedures. Section 20 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.