EarthLink Policies and Agreements

READ THIS HIGH-SPEED INTERNET SERVICE AGREEMENT CAREFULLY BEFORE USING THE EARTHLINK RESIDENTIAL DSL INTERNET SERVICES, THE EARTHLINK FREESTANDING RESIDENTIAL DSL INTERNET SERVICES, THE EARTHLINK HYPERLINK HIGH SPEED INTERNET SERVICES OR THE PEOPLEPC RESIDENTIAL DSL INTERNET SERVICES.

THIS HIGH-SPEED INTERNET 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.

1 . AGREEMENT

This High-Speed Internet Service Agreement ("Agreement") is between EarthLink, LLC and its related entities ("EarthLink") and you and applies to your use of the EarthLink Residential DSL Internet service, the EarthLink Freestanding Residential DSL Internet service, the EarthLink HyperLink High Speed Internet service, and the PeoplePC Residential DSL Internet services, and the EarthLink and PeoplePC software and tools including those described at http://www.earthlink.net/software/ (collectively referred to as "Service") except for EarthLink Home Networking and EarthLink Online Backup which have their own Service Agreements.

This Agreement consists of the terms and conditions below, the specific terms of your billing plan for the Service(s) to which you subscribe, the Windstream Privacy Policy, the Windstream Acceptable Use Policy, and the EarthLink Digital Millennium Copyright Act Policy which are found at http://www.earthlink.net/about/policies and all of which are incorporated herein.

By establishing an account for the Service 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.

2. TERM OF THIS AGREEMENT

The effective date of this Agreement is the date on which you subscribed to the Service. This Agreement continues until the date of termination of your Service. Sections 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20 and 22 of this Agreement will survive the 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.

The EarthLink Residential DSL Internet service ("EarthLink DSL Service"), the EarthLink Freestanding Residential DSL Internet service ("Freestanding Service) and the PeoplePC Residential DSL Internet service ("PeoplePC DSL Service") require a modem to access the Internet. The EarthLink HyperLink High Speed Internet service ("HyperLink Service") requires special hyperlink equipment that EarthLink will arrange to be installed in your home ("HyperLink Equipment"). You must provide EarthLink with (i) a valid credit or 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, if applicable. If you subscribe to the EarthLink HyperLink Service, you must provide the address where you will use the Service ("Service Address") if different from your billing address so that EarthLink can schedule the installation of the HyperLink Equipment at your Service Address.

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.

EarthLink reserves the right to verify the accuracy of the information you submit in connection with your subscription to the Service and you consent to such verification. EarthLink also reserves the right to validate the payment method information you provide at subscription and account updates, including attempting up to a $1.00 authorization to your credit or debit card which is not actually billed. To understand how EarthLink handles and protects your personal information, please see the EarthLink Privacy Policy.

The Service must be available to your location. EarthLink may accept or reject any potential subscriber to the Service in its sole discretion. EarthLink will send you a welcome email as written confirmation of your order. 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 registration, you will receive a username, a password, and other account information. You are responsible for (i) maintaining the confidentiality of both 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 Service and other breaches of security. 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 the device (such as a desktop, laptop, notebook, tablet or smart phone) ("Device") and any software on your Device necessary to use the Service, including responsibility for (i) maintaining the security of the Device and data including protection of your username and password, (ii) the encryption of data, (iii) back-up of your Device and data, and (iv) any WI-FI network you use in connection with the Service. 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 SERVICE

The Service speed may vary depending on location, line quality, inside wiring, Internet traffic, and other factors beyond the control of EarthLink. EarthLink does not guarantee upload or download speeds. Some line stabilization may be necessary for the Service. Stabilization could include the lowering of provisioned line speed. Should this occur, EarthLink will NOT be able to increase the line speed once the connection is stabilized. Some of the Services may only work using certain telephone carriers or non-PBX (including rollover/party line) phone systems. Some of the Services may require the use of specific hardware and/or software and may be limited by specific geographic location.

The EarthLink DSL Service and the PeoplePC DSL Service (collectively, "DSL Service") require telephone or cable service with an active telephone number in your house in order to work. You are responsible for charges for such telephone or cable service in connection with these Service. Please note that changing such telephone carriers or cable providers may result in substantial interruption of the DSL Service which may result in fees associated with cancellation and setting up a new account. T he Freestanding Service and the HyperLink Service only require a telephone line to your house. The Freestanding Service will not work on an active telephone line. The HyperLink Service can work with an active or inactive telephone line to your house.

EarthLink reserves the right to change, with or without notice to you, of (i) any of the features, content or applications of the Service or (ii) any of the features of the DSL modem provided by EarthLink ("EarthLink DSL Modem"), the modem provided by AT&T ("Freestanding DSL Modem Provided by AT&T") for certain Freestanding Service subscribers as described in Sections 10 and 11 or the HyperLink Equipment as described in Section 12 (collectively, referred to as the "Equipment").

Because of the complex nature of Internet service, availability, and the underlying infrastructure, 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.

The Services include 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 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.

6. LOCAL TELEPHONE, TOLL AND LONG DISTANCE CHARGES

EarthLink will provide you with a dial-up access number to access the Service ("POP Number"). When using the Service, you are solely responsible for determining if use of a particular POP Number will cause you to incur long-distance, toll, or any other charges, EarthLink does not guarantee that any POP Number that EarthLink provides will be a local call from your location. 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 POP Numbers to access the Service or to restrict use of specific POP Numbers.

7. BILLING PLAN FEATURES (INCLUDING EMAIL STORAGE AND WEBSPACE)

The billing plans for some of the Services may vary by geographic location, phone carrier or 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.

If you signed up for a pre-paid billing plan, you will receive the applicable Service for the duration of your subscription term without further monthly Service fees. Depending on the terms of your pre-paid billing plan, your subscription may convert to either a monthly or a fixed period subscription at the end of the initial fixed pre-paid subscription term. Pricing will be subject to the rates in effect at that time for that Service. If you cancel your subscription before the end of the fixed term or if EarthLink terminates your subscription before the end of the fixed term for violation of this Agreement or other applicable EarthLink agreements or policies, EarthLink will not refund, in whole or in part, the amount you have paid for your subscription.

The email storage limits for your billing plan are posted on the EarthLink website located at www.earthlink.net or the PeoplePC website located at www.peoplepc.com. 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.

Certain billing plans may offer the ability to create your personal webspace. The maximum webspace available for such use is 10MB per 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 Windstream 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.

Changes to your billing plan in months two through twelve may result in an early termination fee. Such changes may include (i) cancellation of your Service, (ii) downgrading or changing your Service to another EarthLink service or PeoplePC service, or (iii) if you move the Service to a new location, change your local telephone company within the same location or discontinue your local telephone service within the same location. Please check your billing plan details for more information.

8. BILLING AND PAYMENT POLICIES

You agree to pay the recurring monthly fee in your billing plan due in advance of the month incurred. In addition, your bill will include (i) taxes, surcharges, and fees required by any applicable government entity; (ii) shipping and handling fees, if applicable; (iii) the Installation Charge for the HyperLink Equipment, if applicable, and (iv) the method of payment fees, if applicable. All payments must be made in US dollars.

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.

The billing start date for the DSL Service and the Freestanding Service will begin on the date that you first use it ("DSL Billing Start Date"). The billing start date for the HyperLink Service will begin on the date that the installation of the HyperLink Equipment has been completed.

You must provide accurate billing information including legal name, address, telephone number, and credit or debit card number and expiration date and report all changes to this information promptly to EarthLink.

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. usage, 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 Agreement. 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.

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.

EarthLink will email an e-invoice to your primary EarthLink or PeoplePC 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 through https://myaccount.earthlink.net/cam/billing_info.jsp or by calling EarthLink Customer Service that EarthLink mail a paper invoice to your billing mailing address each month. EarthLink will charge your account a fee for each paper invoice. If you elect to have EarthLink mail you your monthly invoice, you may request that EarthLink also email your monthly invoice your Contact Email Address or if you designated a different billing email address , to such billing email address. There is no charge for e-invoices.

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:

EarthLink, LLC
Customer Service
1170 Peachtree Street, Suite 900
Atlanta, Georgia 30309

Adjustments will not be made for charges that are disputed more than 30 days after the billing date.

EarthLink reserves the right (i) to 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) to 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.

EarthLink may use various means to recover monies due. If EarthLink retains a collection agency or takes legal action to collect monies due on your account, you agree to pay all costs and expenses of collection incurred by EarthLink, which may include reasonable attorney's fees and collection agency fees which may be based on a percentage of the amount owed, up to a maximum of 25%, where permitted by applicable law.

9. CANCELLATION AND TERMINATION OF YOUR SERVICE

You may cancel (i) the EarthLink DSL Service, the Freestanding Service, and the HyperLink Service (collectively, "EarthLink Services") and (ii) the PeoplePC DSL Service only as follows:

Telephone Cancellation for the EarthLink Services: toll free number at 1-888-327-8454

Telephone Cancellation for the PeoplePC DSL Service: toll free number at 1-866-772-6277

Fax Cancellation for both EarthLink Services and PeoplePC DSL Service: Please include your account number and current telephone number and fax to 404-795-1034.

Mail Cancellation for both EarthLink Services and PeoplePC DSL Service: Send registered or certified mail, return receipt requested to:

EarthLink, LLC
Cancel (write Name of Service)
1170 Peachtree Street, Suite 900
Atlanta, Georgia 30309
*Include your account number and current telephone number.

EarthLink does NOT accept cancellations by email.

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. 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.

EarthLink may terminate your account for the Service 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 . A 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 account for the Service is cancelled by EarthLink due to non-payment and then it is reactivated at a later date, EarthLink will bill you an account reactivation fee.

If your Service is canceled by you or by EarthLink prior to the end of the fixed period in your billing plan and your billing plan includes an early termination fee, EarthLink will charge the early termination fee set forth in your billing plan to your account. In certain situations, EarthLink may waive the early termination fee, at its discretion, if (i) EarthLink no longer provides the Service to your current location, (ii) you live in an area currently deemed a weather or war disaster area, or (iii) you were deployed for active military service. Your Service will close at the end of the current billing period in which notice of cancellation is received or in which EarthLink canceled your Service.

Sections 10, 11 and 12 set forth the specific cancellation policies for the EarthLink DSL Modem, Freestanding DSL Modem Provided by AT&T and the HyperLink Equipment. EarthLink will credit any refunds from cancellation during the remorse periods to your account on file with EarthLink. In the event that your EarthLink account is inactive, EarthLink will credit the refund to your credit card on file with EarthLink.

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.

If you move your EarthLink DSL Service or PeoplePC DSL Service or if you change your local telephone company and EarthLink can provide these Service at the new location or on the new telephone line, EarthLink will bill you a re-provisioning fee because this change requires a new installation. If EarthLink cannot provide the EarthLink DSL Service of the PeoplePC DSL Service in your new location or on your new telephone line during the term commitment of your EarthLink DSL Service or PeoplePC DSL Service, you will be charged the early termination fee.

10. SPECIFIC INSTALLATION, WARRANTY AND CANCELLATION TERMS FOR THE EARTHLINK DSL MODEM

EarthLink encourages subscribers to the DSL Service to order the EarthLink DSL Modem because although other modems may be used with the DSL Service to access the Internet, EarthLink only guarantees technical support of the EarthLink DSL Modem.

Customers who subscribe to the Freestanding Service on or after February 11, 2016 and whose Service Address is located in one of the following states in the former SBC Communications region can only use their Freestanding Service with the Freestanding DSL Modem provided by AT&T ("Freestanding DSL Modem Provided by AT&T"): Arkansas, California, Illinois, Indiana, Kansas, Michigan, Missouri, Nevada, Ohio, Oklahoma, Texas or Wisconsin (collectively, " Former SBC Coverage Area" .) EarthLink will handle the ordering process, billing, technical support, and customer service for the Freestanding DSL Modem Provided by AT&T. Section 11 sets forth the terms associated with the Freestanding DSL Modem Provided by AT&T.

The Freestanding Service subscribers who subscribed to the Freestanding Service prior to February 11, 2016 may continue to use the EarthLink DSL Modem to access the Internet. Customers who subscribe to the Freestanding Service on or after February 11, 2016 and whose Service Address is located in states outside of the Former SBC Coverage Area also may use the EarthLink DSL Modem.

Upon receiving the order for the EarthLink DSL Modem, EarthLink will ship the EarthLink DSL Modem self-installation kit ("EarthLink DSL Modem Self-Installation Kit") to you. The EarthLink DSL Modem Self-Installation Kit will include an EarthLink DSL Modem, a power supply, an Ethernet cable, a telephone cord, phone jack filters, an installation guide and a packing slip ("EarthLink DSL Modem Install Guide"). The EarthLink DSL Modem will be either a new or a fully inspected and tested refurbished unit. T he shipment date ("Original Shipment Date") of the EarthLink DSL Modem will be stated on the packing slip.

If you have any problems with the installation of the EarthLink DSL Modem, you can contact EarthLink technical support for assistance. EarthLink may suggest an outside vendor to help install the EarthLink DSL Modem. You will be responsible for all costs and scheduling associated with the installation of the EarthLink DSL Modem. You are also responsible for all inside wiring repair necessary for such installation.

The EarthLink DSL Modem may operate with other DSL Internet access services.

10.2 Warranty for the EarthLink DSL Modem

EarthLink provides a warranty for the EarthLink DSL Modem against defects in material and workmanship under ordinary consumer use. The EarthLink DSL Modem warranty does not cover defects resulting from (i) your installation of the EarthLink DSL Modem contrary to the setup instructions in the EarthLink DSL Modem Install Guide or (ii) repair or modification of the EarthLink DSL Modem by you or any party other than EarthLink. This warranty applies to the original subscriber and is not transferable. This warranty gives you specific legal rights, and you may also have other rights that vary from state to state.

The warranty for an EarthLink DSL Modem shipped on or after February 11, 2016 (i) under the Monthly Equipment Fee Plan c ontinues for as long as your account for the Monthly Equipment Fee Plan is in good standing and (ii) under the One-Time Equipment Charge Plan continues for as long as your account for your DSL Service is in good standing.1 The warranty procedures for such EarthLink DSL Modems include the following policies:

  • You must contact EarthLink Technical Support via telephone or chat support about your defective EarthLink DSL Modem.
  • If EarthLink Technical Support confirms that your EarthLink DSL Modem is defective, EarthLink, upon your request, will ship to you a replacement EarthLink DSL Modem.
  • EarthLink will not charge shipping or handling fees for shipping the replacement modem except if you upgrade the shipping method to overnight delivery.
  • The package with the replacement modem will include a packing slip with its shipment date and a prepaid shipping label for you to use to ship your defective EarthLink DSL Modem back to EarthLink. In order for the return to be processed correctly, you must use the EarthLink provided prepaid shipping label. If your defective EarthLink DSL Modem is not shipped back to EarthLink with the prepaid shipping label to be received by EarthLink within 30 days from the shipment date of the replacement modem, EarthLink will charge a non-returned equipment fee ("Non-Returned Equipment Fee") to your account. This process is referred to below as the "EarthLink Warranty Shipping Policy".

Please Note:The warranty for an EarthLink DSL Modem shipped prior to February 11, 2016 is 365 days ("One Year Warranty Period") from the Original Shipment Date (as defined above) and includes the following policies:

  • If EarthLink Technical Support confirms during the One Year Warranty Period that your EarthLink DSL Modem is defective, EarthLink will ship to you a replacement EarthLink DSL Modem and you will ship the defective EarthLink DSL Modem to EarthLink in accordance with the EarthLink Warranty Shipping Policy.
  • If EarthLink Technical Support confirms after the One Year Warranty Period that your EarthLink DSL Modem is defective, upon your request, EarthLink will send you and charge you for a replacement EarthLink DSL Modem plus shipping and handling fees or you can opt to subscribe to the Monthly Equipment Fee Plan. You will not need to ship back the defective EarthLink DSL Modem.

The replacement EarthLink DSL Modem will be either a new or a fully inspected and tested refurbished unit.

10.3 Specific Terms regarding Cancellation of the DSL Service

The cancellation policy of the Monthly Equipment Fee Plan for the DSL Service requires you to ship your EarthLink DSL Modem to EarthLink. EarthLink will mail you a package with a letter with instructions for shipping the DSL Modem to EarthLink and a prepaid shipping label for you to use to ship the EarthLink DSL Modem to be received by EarthLink within 30 days of the date listed in the letter. In order for the return of the EarthLink DSL Modem to be processed correctly, you will need to use the EarthLink provided prepaid shipping label. If you do not ship the EarthLink DSL Modem to EarthLink in accordance with these procedures within the required time period, EarthLink will charge a Non-Returned Equipment Fee to your account. This process is known below as the "EarthLink Cancellation Shipping Policy".

Refunds resulting from cancellations will be credited to your EarthLink account on file if it is still active or to your method of payment on file if your account is not active.

In addition, the Monthly Equipment Fee Plan's cancellation policies include the following:

  • If you cancel your Service and the Monthly Equipment Fee Plan within 30 days of the Original Shipment Date ("DSL Remorse Period"), EarthLink will refund the monthly recurring fee for the Service and the Monthly Equipment Fee. If you cancel before the EarthLink DSL Modem was shipped, EarthLink also will refund the shipping and handling fees.
  • If you cancel your Service and the Monthly Equipment Fee Plan after the DSL Remorse Period but during the term of your Service ("Term Commitment"), there will be no refunds and EarthLink will charge you the applicable early termination fee.
  • If you cancel your Service and the Monthly Equipment Fee Plan after the DSL Remorse Period and after the Term Commitment, there will be no refunds and no early termination fee.
  • If you cancel only the Monthly Equipment Fee Plan (and not the DSL Service) during the DSL Remorse Period, EarthLink will refund the first month's Monthly Equipment Fee.

If you cancel only your DSL Service, your Monthly Equipment Fee Plan will automatically be cancelled.

The One-Time Equipment Charge Plan's cancellation policies include the following:

  • If you cancel your Service and the One-Time Equipment Charge Plan during the DSL Remorse Period, EarthLink will credit to your account the monthly recurring fee for the DSL Service and the One-Time Equipment Charge that you paid. You must ship the EarthLink DSL Modem to EarthLink in accordance with the EarthLink Cancellation Shipping Policy.
  • If you cancel your Service and the One-Time Equipment Charge Plan after the DSL Remorse Period but during your Term Commitment, there will be no refunds and EarthLink will charge the early termination fee. You will not need to ship your EarthLink DSL Modem to EarthLink.
  • If you cancel your Service or the One-Time Equipment Charge Plan after the DSL Remorse Period and after your Term Commitment, there will be no refunds and you will not need to ship your EarthLink DSL Modem to EarthLink.
  • If you cancel only the One-Time Equipment Charge Plan (and not the Service) during the DSL Remorse Period, EarthLink will refund the One-Time Equipment Charge. You must ship the EarthLink DSL Modem to EarthLink in accordance with the EarthLink Cancellation Shipping Policy .

11. SPECIFIC INSTALLATION, WARRANTY AND CANCELLATION TERMS FOR THE FREESTANDING DSL MODEM PROVIDED BY AT&T

Subscribers who subscribe to the EarthLink Freestanding DSL Service on or after February 11, 2016 and whose Service Address in located in the Former SBC Coverage Area will be shipped a Freestanding Modem Provided by AT&T for use with their EarthLink Freestanding DSL Service.

EarthLink will charge subscribers for the Freestanding DSL ModemsProvided by AT&Tunder two payment plans: (i) a Monthly Equipment Fee Plan for the length of the subscription or (ii) a One-Time Equipment Charge Plan.

11.1 Self-Installation of the Freestanding DSL Modem Provided by AT&T

EarthLink will coordinate with AT&T for AT&T to ship the Freestanding DSL Modem Provided by AT&T self-installation guide ("Freestanding Installation Kit") to your shipping address on file. The Freestanding Self-Installation Kit will include the Freestanding DSL ModemProvided by AT&T, filters, necessary cables to get connected, power supply and the installation guide ("Freestanding Install Guide"). The Original Shipment Date of the Freestanding DSL Modem Provided by AT&T is stated on the packing slip or your confirmation letter in the Freestanding Installation Kit. You can only connect to the Internet after 2:00 p.m. on the date specified on your confirmation letter or packing slip.

If you have any problems with installing the Freestanding DSL Modem Provided by AT&T, you can contact EarthLink technical support for assistance. EarthLink may suggest an outside vendor to help install it. You will be responsible for all costs and scheduling associated with the installation of the Freestanding DSL Modem Provided by AT&T. You are also responsible for all inside wiring repair necessary for such installation.

11.2 Warranty for the Freestanding DSL Modems Provided by AT&T

EarthLink provides a warranty for the Freestanding DSL Modems Provided by AT&T against defects in material and workmanship under ordinary consumer use. The Freestanding DSL Modems Provided by AT&T warranty does not cover defects resulting from (i) your installation of the Freestanding DSL Modems Provided by AT&T contrary to the setup instructions in the Freestanding Install Guide or (ii) repair or modification of the Freestanding DSL Modems Provided by AT&T by you or any party other than EarthLink. This warranty applies to the original subscriber and is not transferable. This warranty gives you specific legal rights, and you may also have other rights that vary from state to state.

The warranty under the Monthly Equipment Fee Plan continues for as long as your account for the Monthly Equipment Fee Plan is in good standing. T he warranty under the One-Time Equipment Charge Plan is 365 days from the Original Shipment Date ("One-Time Equipment Charge One Year Warranty Period").

The warranty procedures under the Monthly Equipment Fee Plan include the following:

  • You must contact EarthLink Technical Support via telephone or chat support about your defective Freestanding DSL Modem Provided by AT&T.
  • If EarthLink Technical Support confirms that your Freestanding DSL Modem Provided by AT&T is defective, EarthLink, upon your request, will arrange for AT&T to ship to you a replacement Freestanding DSL Modem Provided by AT&T. EarthLink will not charge shipping or handling fees for shipping the replacement modem except if you upgrade the shipping method to overnight delivery.

The warranty procedures under the One-Time Equipment Charge Plan include the following procedures:

  • You must contact EarthLink Technical Support via telephone or chat support about your defective Freestanding DSL Modem Provided by AT&T.
  • If EarthLink Technical Support confirms during the One-Time Equipment Charge Plan's One Year Warranty Period that your modem is defective, upon your request, EarthLink will arrange for AT&T to ship a replacement modem to you. EarthLink will not charge shipping or handling fees for shipping the replacement modem except if you upgrade the shipping method to overnight delivery.
  • If EarthLink Technical Support confirms after the One-Time Equipment Charge Plan's One Year Warranty Period that your modem is defective, upon your request, EarthLink will arrange for AT&T to ship a replacement modem to you. You will have the option to (i) pay the One-Time Equipment Charge plus shipping and handling fees or (ii) you can opt to subscribe to the Monthly Equipment Fee Plan.

The replacement Freestanding DSL Modem Provided by AT&T will be either a new or a fully inspected and tested refurbished unit.

You will not need to ship back the defective Freestanding DSL Modem Provided by AT&T under any of the above scenarios. The Freestanding DSL Modem Provided by AT&T may work with some DSL freestanding services of other providers that require authentication.

You agree to only use the Freestanding DSL Modem Provided by AT&T for its intended use with the EarthLink Freestanding DSL Service. The Freestanding Service in the Former SBC Coverage Area will not function with any other modem.

11.3 Specific Terms regarding Cancellation of the Freestanding DSL Modem Provided by AT&T

The Freestanding DSL Modem Provided by AT&T Monthly Equipment Fee Plan's cancellation policies include the

Following:

  • If you cancel your Freestanding DSL Modem Provided by AT&T and the Monthly Equipment Fee Plan prior to theDSL Billing Start Date, EarthLink will refund the monthly recurring fee for the Freestanding DSL Modem Provided by AT&T and the Monthly Equipment Fee. If you cancel before the Freestanding DSL Modem Provided by AT&T was shipped, EarthLink also will refund the shipping and handling fees.
  • If you cancel your Freestanding DSL Modem Provided by AT&T and the Monthly Equipment Fee Plan within 30 days after the DSL Billing Start Date ("Freestanding DSL Modem Provided by AT&T Remorse Period"), EarthLink will refund the monthly recurring fee for the Freestanding DSL Modem Provided by AT&T and the Monthly Equipment Fee.
  • If you cancel your Freestanding DSL Modem Provided by AT&T and the Monthly Equipment Fee Plan after the Freestanding DSL Modem Provided by AT&T Remorse Period but during the term of your Freestanding DSL Modem Provided by AT&T ("Term Commitment"), there will be no refunds and EarthLink will charge you the applicable early termination fee.
  • If you cancel your Freestanding DSL Modem Provided by AT&T and the Monthly Equipment Fee Plan after the Freestanding DSL Modem Provided by AT&T Remorse Period and after the Term Commitment, there will be no refunds and no early termination fee.
  • If you cancel the Monthly Equipment Fee Plan at any time but you want to keep the Freestanding DSL Modem Provided by AT&T, you will have to pay the One-Time Equipment Charge.

If you cancel your Freestanding DSL Modem Provided by AT&T, your Monthly Equipment Fee Plan will automatically be cancelled.

The Freestanding DSL Modem Provided by AT&T's One-Time Equipment Charge Plan's cancellation policies include the following:

  • If you cancel your Freestanding DSL Modem Provided by AT&T during the Freestanding DSL Modem Provided by AT&T Remorse Period, EarthLink will credit the monthly recurring fee for the Freestanding DSL Modem Provided by AT&T and the One-Time Equipment Charge that you paid.
  • If you cancel your Freestanding DSL Modem Provided by AT&T after the Freestanding DSL Modem Provided by AT&T Remorse Period but during your Term Commitment, there will be no refunds and EarthLink will charge you the early termination fee.
  • If you cancel your Freestanding DSL Modem Provided by AT&T after the Freestanding DSL Modem Provided by AT&T Remorse Period and after your Term Commitment, there will be no refunds.

12. SPECIFIC INSTALLATION, WARRANTY AND CANCELLATION TERMS FOR THE HYPERLINK SERVICE

EarthLink offers two payment plans to pay for the HyperLink Equipment: (i) the monthly recurring equipment fee plan for the length of the subscription ("Monthly Equipment Fee Plan") or (ii) the one-time equipment charge plan. (" One-Time Equipment Charge Plan").

EarthLink will charge you an upfront installation charge to your account ("Installation Charge"). EarthLink will coordinate with you to schedule the date of the installation of the HyperLink Equipment by an AT&T technician ("Technician") at your Service Address. EarthLink will send you an email notifying you of the installation date and the two hour arrival time ("Arrival Window"). On the day of install, the Technician will call you on the telephone number that you provided to inform you that he or she is on his or her way to your location.

If you need to reschedule the installation, you must call EarthLink at least 48 hours before your installation date. This 48 hour time period includes weekends. If you miss your scheduled appointment, EarthLink will charge a missed appointment fee to your EarthLink account after the HyperLink Equipment is installed on the second scheduled installation date. In the event that you miss the appointment on the second scheduled Arrival Window without rescheduling in accordance with the rescheduling procedures set forth above, EarthLink will charge a second missed appointment fee after the HyperLink Equipment is installed on the second rescheduled Arrival Window.

The Technician will determine the most appropriate installation location for the HyperLink Equipment to support your HyperLink Service. If you prefer a different installation location in your premises from where the Technician recommended, additional charges may apply. If you cannot agree on the installation location for the HyperLink Equipment, or you do not want to pay additional charges, you may cancel the Hyperlink Service while the Technician is still in your home. You also must contact EarthLink to cancel the HyperLink Service. All charges incurred will be refunded to your EarthLink account or if your EarthLink account is inactive, EarthLink will refund the charges paid to your credit card on file.

If existing wiring does not meet AT&T standards, additional charges may apply for a wiring upgrade. If you request additional wiring, charges may also apply. After the HyperLink Equipment has been installed, if you wish to move the HyperLink Equipment to a different location in your premises but additional wiring is needed to install the HyperLink Equipment to this new location, you will be responsible for contacting a third party vendor to install the appropriate wiring to the location of your choosing. EarthLink also may charge you for the Technician's visit to move the HyperLink Equipment to the new location in your premises.

If you do not own your premises and need to obtain permission from any necessary party, such as a landlord or building manager, to allow AT&T to use the wiring inside of your unit or house and to make alternation to the property that AT&T deems appropriate in order to install the HyperLink Equipment, you must obtain such permission prior to installation.

The installation of the HyperLink Equipment and the first use of the HyperLink Service may interfere with the normal operation of a monitored alarm or emergency response system. Therefore, it is essential that all customers with monitored alarm systems test their alarms immediately following installation of the HyperLink Equipment. In no event will EarthLink be responsible for any claims or damages, of any nature whatsoever, resulting from any failure or malfunction of any alarm systems, whether or not caused bay any interference with or from the HyperLink Service.

In some cases, the HyperLink Equipment installation may require the inactivation of your current landline home phone service, if applicable, to complete the HyperLink Equipment installation. After the installation is complete, it will be your responsibility to cancel your landline telephone service with your provider so that you will not continue to be billed for this landline home phone service.

Your Internet access will be down for a short period of time during the installation.

12.2 Warranty of the HyperLink Equipment

The warranty under the Monthly Equipment Fee Plan continues for as long as your account for the Monthly Equipment Fee Plan is in good standing. T he warranty under the One-Time Equipment Charge Plan is 365 days from the Original Shipment Date ("One-Time Equipment Charge One Year Warranty Period").

The warranty procedures under the Monthly Equipment Fee Plan include the following:

  • You must contact EarthLink Technical Support via telephone or chat support about your defective HyperLink Equipment .
  • If EarthLink Technical Support confirms that HyperLink Equipment is defective, EarthLink, upon your request, will arrange for a Technician to come to your premises to install the replaced HyperLink Equipment.
  • EarthLink will not charge Installation Charges to install the new HyperLink Equipment unless you miss your appointment without contacting EarthLink in advance.

The warranty procedures under the One-Time Equipment Charge Plan include the following:

  • You must contact EarthLink Technical Support via telephone or chat support about your defective HyperLink Equipment .
  • If EarthLink Technical Support confirms that HyperLink Equipment is defective during the One-Time Equipment Charge One Year Warranty Period , upon your request, EarthLink will arrange for a Technician to come to your premises to install the replaced HyperLink Equipment at no charge. EarthLink will not charge Installation Charges to install the replaced HyperLink Equipment unless you miss your appointment without contacting EarthLink in advance.
  • If EarthLink Technical Support confirms that HyperLink Equipment is defective after the One-Time Equipment Charge One Year Warranty Period , upon your request, EarthLink will arrange for AT&T to install the replaced HyperLink Equipment. EarthLink will charge the One-Time Charge and Installation Charge to your account for the replaced HyperLink Equipment

The replacement HyperLink Equipment will be either a new or a fully inspected and tested refurbished unit.

The HyperLink Equipment requires electrical power from your premises which you are responsible for providing. The HyperLink Equipment will not function in the event of a loss of power. You will be responsible for any backup battery solution. You may purchase battery backup for the HyperLink Equipment from third party manufacturers or retailers. You also are solely responsible for replacing and recycling used batteries. You agree to read and follow the manufacturer's or vendor's instructions for replacing and recycling backup batteries.

You agree to only use the HyperLink Equipment for its intended use with the HyperLink Service .

12.3 Specific Terms for the HyperLink Service with Apple TV

EarthLink also offers the HyperLink Service with Apple TV ("HyperLink Service with Apple TV") includes one Apple TV device ("Apple TV Device"). You cannot order additional Apple TV Devices from EarthLink.

If you place an order for the HyperLink Service with Apple TV offer, you cannot change it to any other HyperLink offer after your original order has been placed. Likewise, if you placed an order for only the HyperLink Service offer, you cannot change it to the HyperLink Service with Apple TV offer after your original order has been placed.

The Apple TV Device will be shipped to you by Apple after (i) the HyperLink Equipment installation and processing fee has been paid in full, (ii) the HyperLink Equipment has been installed, and (iii) a monthly invoice has been paid in full. You cannot return the Apple TV Device for a refund. Apple's policies and agreements will govern your use of Apple TV. The warranty for the Apple TV Device can be found at http://www.apple.com/legal/warranty/products/ios-warranty-document-us.html.

The instructions in the package containing the Apple TV Device will explain how to install the Apple TV Device and how to use Apple TV. If you have any problems with the installing the Apple TV Device or other questions regarding Apple TV, you can contact Apple Technical Support at https://getsupport.apple.com/.

12.4 Specific Terms regarding Cancellation of the HyperLink Service

This Section 12.4 applies to both the HyperLink Service without Apple TV and the HyperLink Service with Apple TV.

The Monthly Equipment Fee Plan's cancellation policies include the following:

  • If you cancel your HyperLink Service and the Monthly Equipment Fee Plan prior to thescheduled installation date, EarthLink will refund the monthly recurring fee for the HyperLink Service, the Monthly Equipment Fee and the Installation Charge.
  • If you cancel your HyperLink Service and the Monthly Equipment Fee Plan within 30 days after the HyperLink Equipment has been installed ("HyperLink Remorse Period"), EarthLink will refund the monthly recurring fee for the HyperLink Service and the Monthly Equipment Fee.
  • If you cancel your HyperLink Service and the Monthly Equipment Fee Plan after the HyperLink Remorse Period but during the term of your HyperLink Service ("Term Commitment"), there will be no refunds and EarthLink will charge you the applicable early termination fee.
  • If you cancel your HyperLink Service and the Monthly Equipment Fee Plan after the HyperLink Remorse Period and after the Term Commitment, there will be no refunds and no early termination fee.
  • If you cancel the Monthly Equipment Fee Plan at any time but you want to keep the HyperLink Service, you will have to pay the One-Time Equipment Charge.

If you cancel your HyperLink Service, your Monthly Equipment Fee Plan will automatically be cancelled.

The cancellation policies for the One-Time Equipment Charge include the following:

  • If you cancel your HyperLink Service prior to theInstallation, EarthLink will refund the monthly recurring fee for the HyperLink Service, the One-Time Equipment Charge, and the Installation Charge.
  • If you cancel your HyperLink Service during the HyperLink Remorse Period, EarthLink will credit to your account the monthly recurring fee for the HyperLink Service and the One-Time Equipment Charge that you paid.
  • If you cancel your HyperLink Service after the HyperLink Remorse Period but during your Term Commitment, there will be no refunds and EarthLink will charge you the early termination fee.
  • If you cancel your HyperLink Service after the HyperLink Remorse Period and after your Term Commitment, there will be no refunds.

No matter when you cancel your HyperLink Service, you do not need to return the HyperLink Equipment. If you ordered the HyperLink Service with Apple TV and cancel within your Term Commitment, EarthLink requires you to ship your Apple TV Device to EarthLink. EarthLink will mail you a letter with instructions for shipping the Apple TV Device to EarthLink and a prepaid shipping label for you to use to ship the Apple TV Device to be received by EarthLink within 30 days of the date listed in the letter. In order for the return of the Apple TV Device to be processed correctly, you will need to use the EarthLink provided prepaid shipping label. If you do not ship the Apple TV Device to EarthLink in accordance with these procedures within the required time period, EarthLink will charge a Non-Returned Equipment Fee to your account. If you cancel the HyperLink Service with Apple TV after the Term Commitment, then you do not need to return the Apple TV Device to EarthLink.

13. USE OF THE 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 content, image or data does not violate any law (including 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, third party web sites, message boards, chat rooms, social networks or online services. The Internet may contain material that is unsuitable for minors, and you agree to supervise and to accept sole responsibility and liability for any use of the Service by minors through your account. Your use of the Service is also governed by the EarthLink Acceptable Use Policy and the Windstream Privacy Policy.

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 Windstream Acceptable Use Policy.

14. MONITORING THE SERVICE

EarthLink has no obligation to monitor the Service but may do so to (i) comply with laws, regulations, or governmental or legal requests; (ii) protect the overall integrity of the Service (including the EarthLink network); (iii) operate the technical aspects of the Service in a proper, effective, and reasonable manner; (iv) protect itself, its employees, or others as described in the Windstream Privacy Policy; and (v) enforce or prevent breaches of this Agreement or other EarthLink agreements or policies, including the Windstream Acceptable Use Policy.

EarthLink will only disclose information regarding your use of your Service in accordance with the Windstream Privacy Policy. EarthLink may immediately remove your material or information from EarthLink's servers, in whole or in part, if EarthLink reasonably believes it infringes another's property rights or violates the Windstream Acceptable Use Policy, other EarthLink agreements or policies, or any laws or regulations. 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.

EarthLink's tools and methods to manage EarthLink's network, including network congestion, and to address security concerns and harmful online activities (e.g. spamming and phishing) in connection with Residential DSL Internet Service are specifically addressed in the Residential Broadband Network Management Information .

15. GENERAL DISCLAIMERS AND WARRANTIES

THE SERVICE AND THE EQUIPMENT ARE 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 REGARDING THE SERVICE AND THE EQUIPMENT AND WAIVE ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, 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, DAMAGES, SUITS, OR PROCEEDINGS IN CONNECTION WITH THE SERVICE AND THE EQUIPMENT RESULTING FROM: (I) AVAILABILITY OR QUALITY WITHIN THE COVERAGE AREA REGARDLESS OF THE CAUSE(S) OF THE PROBLEM; (II) OTHER USERS ACCESSING YOUR DEVICE; (III) VARIATIONS IN THE SPEED OR BANDWIDTH AVAILABILITY TO EACH DEVICE CONNECTED TO THE EARTHLINK NETWORK; (IV) SECURITY BREACHES; (V) EAVESDROPPING; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (VI) YOUR RELIANCE ON OR USE OF THE SERVICE; (VII) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE), DELETION OF FILES, ERRORS, OR DEFECTS REGARDLESS OF WHETHER YOUR DATA IS MAINTAINED ON THE EARTHLINK SERVERS OR YOUR DEVICE(S); (VIII) DELAYS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE OF THE SERVICE; (IX) 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 (X) 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 EARTHLINK PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR (I) YOUR FAILURE TO PROPERLY INSTALL, USE OR OPERATE THE EQUIPMENT OR (II) ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY OF YOUR DEVICES, SOFTWARE, FILES, DATA, PERIPHERALS OR PROPERTY DUE TO YOUR INSTALLATION, ATTEMPTED INSTALLATION, USE, REPAIR OR REMOVAL OF THE EQUIPMENT.

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 EQUIPMENT 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.

16. INDEMNIFICATION

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 Equipment or the use or misuse of the Service of the Equipment by anyone else through your account including, but not limited to, use or misuse of the Service of Equipment (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; (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); or (iv) any claims of the owner of your premises in connection with the installation of the Equipment including the use of wiring inside your unit for installation of the HyperLink Equipment.

17. ELECTRONIC COMMUNICATIONS AND PHONE COMMUNICATIONS

17.1 Electronic Communications

You consent to receive notices, documents, disclosures and other communications from EarthLink about your account or Service ("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 receive Communications from EarthLink electronically or if you withdraw your consent to receive such Communications electronically, 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.

17.2 Phone Calling and Texting

In addition, you hereby agree that your use of the Service constitutes your express written consent to receive automated and manually dialed calls, text messages and pre-recorded messages at the phone number(s) that you provide EarthLink in connection with your subscription to or use of the Service. Consent to receiving autodialed calls, text messages, and/or pre-recorded messages from EarthLink is not required to purchase products or services from EarthLink.

17.3 Changing Your Contact Preferences

You may exercise your option not to receive any marketing communications from and/or automated or manually dialed calls, text messages and pre-recorded messages from EarthLink (i) for EarthLink Services, by going directly to https://myaccount.earthlink.net/cam/contactinfo.jsp or calling EarthLink customer service, or (ii) for the PeoplePC DSL Service, by going directly to https://myaccount.peoplepc.com/cam/contactinfo.jsp or calling PeoplePC customer service . You also may text STOP in response to any text message from EarthLink to stop receiving text messages from EarthLink.

18. CUSTOMER SERVICE 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/ for the EarthLink Services or https://support.peoplepc.com/ for the PeoplePC Services . For specific billing questions, you also can login to myaccount at https://myaccount.earthlink.net/cam/whlogin.jsp.

To contact EarthLink Customer Service via telephone or live chat, go to http://www.earthlink.net/about/contact/ for the EarthLink Services and http://psc.peoplepc.com/contact/contact.php for the PeoplePC Services.

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.

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)

20.1 Summary

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 Service 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, LLC, 1170 Peachtree Street, Suite 900, 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 will 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, https://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 https://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.

20.6 Appeal

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 one hundred and twenty (120) days of the date of the appealing party's notice of appeal. The decision of the three-arbitrator panel will 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 awardor $2,500 ("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 ("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 will be null and void and all disputes will be heard by a court.

20.10 Future Changes to Agreement to Arbitrate

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 dated March 1, 2017.

20.11 Notice to California Residents

California residents are entitled to the following information:

The Service is provided by EarthLink, LLC, 1170 Peachtree Street, Suite 900, 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 1-800-952-5200.

20.12 Survival

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 which is also linked from www.peoplepc.com. 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.

22. MISCELLANEOUS

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: March 1, 2017

The following endnote summarizes the material revision made in this March 1, 2017 version of this Agreement compared to the December 13, 2016 version of this Agreement.

1 The first sentence in the second paragraph was revised to expand the duration of the warranty for the EarthLink DSL Modem shipped on or after February 11, 2016 under the One-Time Equipment Fee from two years to as long your account for your DSL Service is in good standing.



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