EARTHLINK EMAIL BETA PROGRAM SERVICE AGREEMENT
READ THIS AGREEMENT BEFORE USING THE EARTHLINK EMAIL BETA PROGRAM.
By signing up or using the Beta Program, you agree to be bound by this Agreement and to use the Beta Program in compliance with the terms of this Agreement and all applicable federal, state and local laws, rules and regulations.
1. THE BETA PROGRAM
The Beta Program is a trial environment for EarthLink to test new code for email features and functionalities. EarthLink provides you with 1 gigabyte of email storage in consideration for your participation in the Beta Program. The standard EarthLink email accounts have 100 megabytes. You will continue to pay your monthly access for your EarthLink Service to EarthLink.
Participation in the Beta Program may be by invitation only.
The effective date of this Agreement commences when you agree to participate in the Beta Program and expires upon the termination of your participation in the Beta Program. Sections 4, 5, 6, 7, 8 and 10 will survive termination of this Agreement.
You can provide comments and suggestions about the Beta Program by clicking on the "Feedback" link in your email inbox. EarthLink will own the rights to any information that you give us as part of the Beta Program and some information that you provide to EarthLink may become public information.
3. CANCELLATION OF THE BETA PROGRAM
You may cancel your participation in the Beta Program by visiting http://www.earthlink.net/offers/mailtrial/unjoin. Please note that you will not be allowed to cancel the Beta Program until you modify your email account so that it does not take advantage of the Beta Program's expanded email storage. For example, because the Beta Program email account has a 1 gigabyte email box and a standard account has a 100 megabyte email box, you cannot cancel your participation in the Beta Program until you trim your email box back down to 100 megabytes or less. EarthLink may modify, suspend or discontinue the Beta Program at any time for any reason. If EarthLink cancels your participation in the Beta Program, a termination notice will be sent to you via (i) your EarthLink contact email address on file or (ii) U.S. Mail to the mailing address on file.
4. DISCLAIMERS, LIMITATION OF LIABILITY
YOU ACKNOWLEDGE THAT THE BETA PROGRAM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EARTHLINK AND ITS SUPPLIERS AND VENDORS DO NOT WARRANT THAT (I) THE BETA PROGRAM WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS, OR (II) THE FEATURES OR FUNCTIONALITIES TESTED IN THE BETA PROGRAM WILL BE AVAILABLE AT ANY TIME IN THE FUTURE
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. 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 BETA PROGRAM INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. THE EARTHLINK PARTIES WILL HAVE NOT BE LIABLE FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM OTHER USERS ACCESSING YOUR COMPUTER; SECURITY BREACHES; EAVESDROPPING; OR INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE BETA PROGRAM. IN ADDITION, THE EARTHLINK PARTIES WILL NOT BE LIABLE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM YOUR CANCELLATION OF YOUR PARTICIPATION IN THE BETA PROGRAM INLCUDING, BUT NOT LIMITED TO FAILURE OF DELIVERY OF EMAILS OR LOSS OF INFORMATION. IN ANY EVENT, THE CUMULATIVE LIABILITY OF ANY EARTHLINK PARTY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE BETA PROGRAM WILL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID TO EARTHLINK FOR YOUR EARTHLINK INTERNET ACCESS ACCOUNT DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM. EARTHLINK DOES NOT WARRANT OR GUARANTEE THAT YOU CAN PARTICIPATE IN THE BETA PROGRAM EVEN IF EARTHLINK HAS ACCEPTED YOUR ORDER FOR THE BETA PROGRAM.
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 THIS AGREEMENT. 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 elses use of the Beta Program (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).
You consent to receive notices, documents, disclosures and other communications from EarthLink (Communications) in an electronic format to your EarthLink contact email address on file, and agree that the Communications provided to you by EarthLink electronically satisfy any legal requirement that such communications would satisfy if they were in a writing. Your consent to receive Communications from EarthLink electronically to your EarthLink contact email address on file and EarthLinks agreement to do so applies to all of your transactions and interactions with EarthLink. If you do not want to consent to receive Communications from EarthLink electronically or if you withdraw such consent, then you must stop using the Beta Program. 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. i
7. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
8. 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. ii
California residents are entitled to the following information:
The Beta Program is provided by EarthLink, Inc., 1375 Peachtree Street, Atlanta, Georgia 30309.
Charges vary depending on the type of Beta Program. 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.
9. REVISIONS TO THIS 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 Beta Program 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 Beta Program.
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 8; 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.iii 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 May 6, 2011 version of the Agreement compared to the previous version of the Agreement dated April 9, 2010.
i Section 6 was added to explain that EarthLink's notices, documents and other communications will be delivered to you in an electronic format to your EarthLink contact email address on file.
ii The second paragraph is Section 8 was revised to provide additional clarity that claims are to be arbitrated in an individual arbitration and that no arbitration of claims in a class or representative basis is allowed.
iii The third sentence in Section 10 was revised to provide additional clarity regarding the prohibition against class or representative actions.