EARTHLINK EMAIL BETA PROGRAM TERMS 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 EarthLink subscribers who participate in the Beta Program with 1 gigabyte of email storage in consideration for their participation in the Beta Program. The standard EarthLink email accounts have 100 megabytes. Participation in the Beta Program is 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. During the period that you participate in the Beta Program, you will continue to pay your monthly fees for your EarthLink access service to EarthLink.
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 of the 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 through 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 or cancel your participation in 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) email to the primary EarthLink email address selected by or assigned to you during the registration process ("Contact Email Address") or (ii) U.S. Mail to the mailing address on file.
4. DISCLAIMERS, LIMITATION OF LIABILITY
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. 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 no liability FOR ANY CLAIMS, LOSSES, ACTIONS, SUITS, COSTS OR DAMAGES, INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, IN CONNECTION WITH YOUR USE OR MISUSE OF THE BETA PROGRAM directly or indirectly, INCLUDING ARISING FROM: (I) EMAIL STORAGE AVAILABILITY OR QUALITY, REGARDLESS OF THE CAUSES OF THE PROBLEMS; (II) OTHER USERS ACCESSING YOUR BETA PROGRAM; (III) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE), DELETION OF FILES, ERRORS, OR DEFECTS; (IV) DELAYS OR ERRORS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE; OR (V) YOUR RELIANCE ON OR USE OF 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 IN THIS AGREEMENT.
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 FEES PAID FOR YOUR EARTHLINK ACCESS SERVICE 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 Beta Program or the use or misuse of the Beta Program by anyone else 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) 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).
6. 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 Beta Program. 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 Beta Program, 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 Beta Program.1
7. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
8. DISPUTE RESOLUTION BY BINDING ARBITRATION (INCLUDING IMPORTANT INFORMATION FOR CALIFORNIA RESIDENTS)
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 Beta Program is provided by EarthLink, Inc., 1375 Peachtree Street, Atlanta, Georgia 30309.
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, CA 95834 or by telephone at 1-800-952-5210
9. 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 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 terminate 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 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 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. 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: August 1, 2013
The following endnotes summarize the material revisions made in this August 1, 2013 version of the Agreement compared to the previous version of the Agreement dated May 6, 2011.
1 The second paragraph in Section 6 was added to clarify that you are agreeing that EarthLink may call or text you at the phone number provided with your subscription or use of the Beta Program.