EARTHLINK FREE SERVICES SERVICE AGREEMENT
READ THIS SERVICE AGREEMENT CAREFULLY BEFORE USING ANY FREE SERVICE OFFERED BY EARTHLINK FOR A SPECIFIC PERIOD OF TIME.
By, using the Free Service, using EarthLink-provided software or indicating agreement through the software or website, you agree to be bound by this Agreement, including future revisions and to use the Free Service in compliance with the relevant EarthLink policies and agreements may be found at www.earthlink.net/about/policies.
2. THE FREE SERVICE
The Free Service may include the use of a variety of services including access to and use of certain websites and permission to use software and other services. THE FREE SERVICE DOES NOT INCLUDE TECHNICAL SUPPORT OF ANY KIND. From time to time EarthLink may impose reasonable rules and regulations regarding the use of the Free Service. EarthLink reserves the right to change the Free Service or features of the Free Service at any time without prior notice.
Upon registering for the Free Service, you may receive a username, password, and other account information for your use. All of this account information is owned by EarthLink and may be altered, replaced or cancelled at any time. You and members of your household are the only authorized users of your EarthLink account and must comply with this Agreement. You must keep your password confidential so that no one else may access the Free Service through your account. You must notify EarthLink immediately upon discovering any unauthorized use of your account.
3. ACCOUNT REQUIREMENTS
To sign up and use the Free Service, you must be at least 18 years old. You must provide true and accurate contact information such as name, address, email address and telephone number and report all changes to this information immediately. The Free Service may require an active Internet connection to work. Your computer may have to meet certain minimum requirements, which may be found on the EarthLink homepage at: www.earthlink.net.
EARTHLINK DOES NOT REPRESENT, WARRANT, OR COVENANT THAT INSTALLATION, IF APPLICABLE, BY YOU OR A THIRD PARTY CHOSEN BY YOU WILL ENABLE YOU TO SUCCESSFULLY ACCESS, OPERATE, OR USE THE FREE SERVICE, NOR THAT SUCH INSTALLATION WILL NOT CAUSE DAMAGE TO YOUR COMPUTER, DATA, SOFTWARE, FILES, OR PERIPHERALS. IN ADDITION, EARTHLINK WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, OR FOR THE FAILURE TO PROPERLY INSTALL, ACCESS, USE, OR OPERATE THE EQUIPMENT OR FREE SERVICE BECAUSE OF YOUR INSTALLATION.THE FOREGOING LIMITATION OF LIABILITY IS IN ADDITION TO AND WILL IN NO WAY BE CONSTRUED TO LIMIT ANY ANDALL LIMITATIONS OF LIABILITY SET FORTH ELSEWHERE IN THIS AGREEMENT.
EarthLink will have no responsibility whatsoever for claims arising out of its failure or refusal to provide the Free Service.
5. MONITORING THE FREE SERVICE
EarthLink may cancel the Free Service and deny your right to use it or any part of it at any time, for any reason. You may discontinue use of the Free Service at any time and agree to uninstall any software provided by EarthLink for use of the Free Service.
This Agreement commences on the date that you subscribed to the Free Service and terminates either on the date that the Free Service ends or on the date in which you cancel the Free Service. Sections 8, 9, 10, 11 and 13 of this Agreement will survive termination of this Agreement
7. SOFTWARE LICENSE
If you receive any software from EarthLink, your use of such software is subject to the end user license agreement included within the applicable software.
8. DISCLAIMERS AND WARRANTIES
THE FREE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EARTHLINK DOES NOT WARRANT THAT THE FREE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. EARTHLINK MAKES NO EXPRESS WARRANTIES AND WAIVES ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH EARTHLINK OR THE INTERNET GENERALLY. NO ADVICE OR INFORMATION GIVEN BY EARTHLINK, ITS REPRESENTATIVES OR SUPPLIERS WILL CREATE A WARRANTY.
EARTHLINK, ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND CONTRACTORS (COLLECTIVELY, "EARTHLINK PARTIES") WILL NOT BE LIABLE FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM: OTHER USERS ACCESSING YOUR COMPUTER; SECURITY BREACHES; EAVESDROPPING; DENIAL OF SERVICE ATTACKS; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE FREE SERVICE; YOUR RELIANCE ON OR USE OF THE EQUIPMENT OR FREE SERVICE, OR THE MISTAKES, OMISSION, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSIONS, OR ANY FAILURE OF PERFORMANCE OF THE EQUIPMENT OR FREE SERVICE;THE USE OF THE EQUIPMENT OR FREE 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 ALL SERVICES, PRODUCTS,AND OTHER INFORMATION,AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE PROVIDED THROUGH THE FREE SERVICE OR THE INTERNET.
THE FOREGOING LIMITATION APPLIES 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 IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE.YOUR SOLE AND EXCLUSIVE REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET OUT IN THIS AGREEMENT. ANY WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS.YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
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 (direct, indirect and consequential), attorney's fees and expenses that an EarthLink Party may sustain or incur by reason of your use of the Service or the use of the Service by anyone else in your household (i) in violation of applicable laws, regulations or the terms of this Agreement, (ii) to transmit any messages, content, images or other information via the Internet, (iii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with use of the Service, or (iv) in any manner that harms any person resulting in the personal injury or death of any person or in damage to or loss of any tangible or intangible (including data) property.
10. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
11. 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 class action arbitration pursuant to this Agreement. 1
California residents are entitled to the following information:
The Service is provided by EarthLink, Inc., 1375 Peachtree Street, Atlanta, Georgia 30309. Phone: (800) 890-6356.
Charges vary depending on the type of Service. Current pricing may be obtained from the EarthLink website: www.earthlink.net. EarthLink reserves the right to change prices and institute new fees at any time upon 30 days prior notice.
Complaints and questions about the Service should be directed to EarthLink Customer Service at (800) 890-6356. 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 telephone at (916) 445-1254.
Actions arising from this Agreement may be brought in an appropriate California small claims court.
12. REVISIONS TO THE AGREEMENT
EarthLink may revise, amend, or modify this Agreement from time to time. Notice of any revision, amendment, or modification will be posted on EarthLink's Web site at www.earthlink.net/about/policies on your start pages and/or by email and/or in mailings to your primary EarthLink email account and will be effective on the date noted in the posting. This Agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of EarthLink. By continuing to use the Service after the amendments are effective, you accept and agree to abide by them.
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 clause in Section 11; if that prohibition is found to be unenforceable, the arbitration clause (but only the arbitration clause) will be null and void.EarthLink will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of EarthLink as reflected in the original provision. Nothing in this Agreement or in the understanding of the parties construes upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. EarthLink may subcontract any work, obligations or other performance required of EarthLink under this Agreement without your consent. EarthLink will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a government in its sovereign capacity, acts of war, terrorism, acts of a public enemy, fires, earthquakes, acts of God, labor disputes, strikes, work slow-downs or other labor-related activity.
The following endnotes summarize the revisions made in this April 9, 2010 version of the Agreement compared to the previous version of the Agreement dated March 5, 2009.1The first two paragraphs in Section 11 were revised to clarify the arbitration process under this Agreement.