EARTHLINK® HOME NETWORKING SERVICE AGREEMENT
READ THIS HOME NETWORKING SERVICE AGREEMENT CAREFULLY BEFORE USING THE EARTHLINK HOME NETWORKING SERVICE.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
By establishing an account 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 6, 7, 8, 9, 10, 11, 13, 14 and 16 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. 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. 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.
To receive the Service, you must have an active broadband connection. You are responsible for charges for the Service regardless of the status of your broadband connection. You are responsible for making sure that your computer's operating system and browser meets the minimum system requirements as set forth at http://www.earthlink.net/software/stayconnected.faces?tab=homenetworking&p=start before signing up for the Service. EarthLink may accept or reject any potential subscriber for the Service in its sole discretion.
4. GENERAL DESCRIPTION OF AND RESTRICTIONS ON THE SERVICE
The Service provides a way to link and protect computers and peripherals (such as printers, scanners, and disk drives) in your home. The Service includes configuration of your home networking by the EarthLink home networking specialists and ongoing technical support for a single home network that meets certain system requirements. You have the option to purchase EarthLink-provided Equipment or you can provide your own routers and/or adapters.
The Service term is 12 months. After the initial 12 month term, the Service will continue on a month-to-month basis until you cancel your Service or EarthLink terminates your Service account. From time to time EarthLink may impose reasonable rules and regulations regarding the use of the Service. EarthLink does not guarantee upload, download, or network speeds or quality.
EarthLink also reserves the right to change any of the features, content or applications of the Service at any time with or without notice to you.
5. INSTALLATION OF EARTHLINK-PROVIDED EQUIPMENT
If you purchased EarthLink-provided Equipment in connection with the Service, the EarthLink Home Networking specialists will assist you over the telephone to install the EarthLink-provided Equipment. You are solely responsible for backing up all of your existing computer files and data prior to installation of the EarthLink-provided Equipment. The installation, use, inspection, maintenance, repair, and removal of the EarthLink-provided Equipment may result in service outage or potential damage to your computer. You assume responsibility for impacts to or loss of any warranty associated with the opening of your computer for installation purposes.
You are also responsible for all inside wiring repair necessary to install the EarthLink-provided Equipment. If you are not the owner of the premises, you warrant that you have obtained the consent of the owner for vendor personnel and/or its agents to enter the premises for installation. You will indemnify and hold EarthLink, its officers, directors, employees, subsidiaries, affiliates, agents, suppliers and contractors harmless from and against any claims of the owner of the premises arising out of the performance of this Agreement.
6. BILLING AND PAYMENT
The charges for the Service can be found at www.earthlink.net/software/stayconnected.faces?tab=homenetworking&p=start. 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; and (iii) 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. If you subscribe to an EarthLink broadband access service, the Service fees are in addition to your monthly access fee. EarthLink may charge for shipping, taxes, billing fees, postage and handling and other applicable fees.
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 (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 or debit 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 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:
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 to change the fees and institute new fees (e.g. equipment fees) associated with the Service at any time with at least 30 days written notice prior to the effective date of such change or new fee. Such written notice may include a letter sent via U.S. mail, a notice on your monthly bill or an email sent to 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.
You may cancel your Service only as follows:
Cancel Home Networking Service
1170 Peachtree Street, Suite 900
Atlanta, Georgia 30309
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 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 bill you the early termination fee set forth in your billing plan. 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.
The 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.
If you ordered EarthLink-provided equipment, EarthLink requires that you pay any past due balance with EarthLink prior to EarthLink shipping the EarthLink-provided equipment.
8. EARTHLINK-PROVIDED EQUIPMENT RETURN POLICY
If you purchased EarthLink-provided Equipment, the following applies: All EarthLink-provided Equipment returns must have an EarthLink-provided shipping label and the original packaging (or equivalent). If you cancel your account and return all EarthLink-provided Equipment within 30 days of your shipping date (the date EarthLink mails your EarthLink-provided Equipment), EarthLink will refund all fees incurred to date, excluding postage and handling. EarthLink will not refund any fees after 30 days of your shipping date. EarthLink will mail you a shipping label upon cancellation and will not accept returns without an EarthLink-supplied shipping label.
EarthLink, in its discretion, may replace EarthLink-provided Equipment due to manufacturer's defect at no cost to you under the following circumstances: you call the EarthLink Technical Support Department within one year of your original shipping date; the EarthLink Technical Support Department certifies that a defect has occurred; and you return the EarthLink-provided Equipment in the original packaging (or equivalent) using an EarthLink-provided shipping label within 30 days of certification. Upon certification, EarthLink will ship replacement EarthLink-provided Equipment to you. Failure to return the certified EarthLink-provided Equipment within 30 days of certification will result in a charge for the new EarthLink-provided Equipment. EarthLink will not accept the return of EarthLink-provided Equipment without EarthLink Technical Support Department certification and shipping label after 30 days from the original shipping date. EarthLink will not replace any EarthLink-provided Equipment, including replacements, after one year from your original shipping date.
9. General DISCLAIMERS AND WARRANTIES
THE SERVICE AND THE EARTHLINK-PROVIDED 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 AND WAIVE ALL IMPLIED WARRANTIES REGARDING THE SERVICE AND THE EARTHLINK-PROVIDED EQUIPMENT 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 OR THE EARTHLINK-PROVIDED EQUIPMENT ARISING OR RESULTING FROM : (I) SERVICE AVAILABILITY OR QUALITY, REGARDLESS OF THE CAUSE(S) OF THE PROBLEM(S); (II) OTHER USERS ACCESSING YOUR SERVICE; (III) THE INSTALLATION, REPAIR, USE OR REMOVAL OF THE EARTHLINK-PROVIDED EQUIPMENT BY YOU OR BY A THIRD PARTY; (IV) AVAILABILITY OR QUALITY OF SERVICE REGARDLESS OF THE CAUSE(S) OF THE PROBLEM(S); (V) SECURITY BREACHES; (VI) EAVESDROPPING; (VII) YOUR RELIANCE ON OR USE OF THE SERVICE; ( VIII) MISTAKES, OMISSIONS, INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE), DELETION OF FILES OR DATA (INCLUDING PERSONALLY IDENTIFIABLE INFORMATION); (IX) DELAYS OR ERRORS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE OF THE SERVICE; (X) CLAIMS BY THE OWNER OF THE PREMISES FROM AND AGAINST ANY CLAIMS IN CONNECTION WITH THE INSTALLATION OF THE EARTHLINK-PROVIDED EQUIPMENT; (XI) YOUR RELIANCE ON OR USE OF THE SERVICE; OR (XII) THE USE OF THE SERVICE BY YOU OR A THIRD PARTY THAT INFRINGES A THIRD PARTY'S COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, INTELLECTUAL PROPERTY OR CONTRACTUAL RIGHTS.
THE EARTHLINK PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR (I) YOUR FAILURE TO PROPERLY INSTALL, USE OR OPERATE THE EARTHLINK-PROVIDED 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 EARTHLINK-PROVIDED 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 EARTHLINK-PROVIDED 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.
You agree to defend, indemnify and hold the EarthLink Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages including, but not limited to, direct, indirect and consequential damages, attorney's fees and expenses that an EarthLink Party may sustain or incur by reason of your use or misuse of the Service or the use or misuse of the Service by anyone else through your account including, but not limited to, use or misuse of the Service (i) in violation of applicable laws 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).
11. ELECTRONIC COMMUNICATIONS AND PHONE COMMUNICATIONS
11.1 Electronic Communications
You consent to receive notices, documents, disclosures and other communications about your account or EarthLink Service 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 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.
11.2 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.
11.3 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 by going directly to https://myaccount.earthlink.net/cam/contactinfo.jsp or calling EarthLink customer service. You also may text STOP in response to any text message from EarthLink to stop receiving text messages from EarthLink.1
12. CUSTOMER SERVICE AND TECHNICAL SUPPORT
For online customer support for your Service including billing issues and online account maintenance, go to http://support.earthlink.net/.
To contact the EarthLink Home Networking specialists via telephone call 888-327-8454 and by live chat, go to http://www.earthlink.net/about/contact/.
EarthLink may provide technical support for the home networking configurations. EarthLink limits support to EarthLink-provided Equipment or equipment on the system requirements list. In certain circumstances, it may be necessary to refer you to the manufacturer of any hardware or software for technical support.
Specifically, EarthLink will not be able to provide technical support for the following:
13. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
14. DISPUTE RESOLUTION BY BINDING ARBITRATION (INCLUDING IMPORTANT INFORMATION FOR CALIFORNIA RESIDENTS)
Most subscriber concerns can be resolved by calling 1-800-EARTHLINK. If EarthLink is unable to resolve your complaint to your satisfaction (or if EarthLink has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed $75,000, EarthLink will pay all costs of the arbitration. Moreover, in arbitration you are entitled to recover attorneys' fees from EarthLink to at least the same extent as you would be in court .
In addition, under certain circumstances (as explained below), EarthLink will pay you more than the amount of the arbitrator's award and will pay your attorney (if any) his or her reasonable attorneys' fees if the arbitrator awards you an amount that is greater than what EarthLink has offered you to settle the dispute.
14.2 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:
References to "EarthLink," "you," and "us" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Services under this Agreement or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court rather than by arbitration if the claim qualifies for small claims court in a location where jurisdiction and venue over EarthLink and you is proper. This agreement to arbitrate does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.
You agree that, by entering into this Agreement, you and EarthLink are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act ("FAA") governs the interpretation and enforcement of this provision.
14.3 Informal Dispute Resolution Prior to Arbitration
14.3(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.
14.3(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.
14.3(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.
14.4 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.)
14.5 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 http://www.adr.org, or by calling the AAA at 1-800-778-7879. One arbitrator, who is selected under the AAA Rules, will conduct the arbitration. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for a court to decide. Unless EarthLink and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. The right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
If an award issued by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the AAA by a written notice of appeal filed within 30 days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the AAA. The AAA will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within 120 days of the date of the appealing party's notice of appeal. The decision of the three-arbitrator panel 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.
14.7 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.
14.8 Awards and Attorney's Fees
If the arbitrator issues you an award that is greater than the value of EarthLink's last written settlement offer made before an arbitrator was selected, or if the arbitrator issues you an award and EarthLink made no settlement offer, then EarthLink will pay you the amount of the award or $2,500 ("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 14.8 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.
14.9 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.
14.10 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 14 of this Version dated September 15, 2016.
14.11 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 1-800-952-5210.
This Section 14 will survive the termination of your Service with EarthLink.
15. REVISIONS TO THIS AGREEMENT
EarthLink may revise, amend, or modify this Agreement at any time by posting the revised version of this Agreement on the EarthLink Web Site located at www.earthlink.net. The revised version will be effective on the date that it is posted as stated at the end of the revised version. The material changes to this Agreement will be noted in endnotes of the revised version. Your continued use of the Service after the date of the revised version constitutes your acceptance of all of the revisions. If you do not agree to the revisions in the revised version, your sole and exclusive remedy will be to terminate your account and use of the Service.
You may not assign your rights or delegate any of your duties under this Agreement without the prior written consent of EarthLink, and any attempted assignment or delegation without such consent will be void. If one or more provisions of this Agreement are held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration provision in Section 14; 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: September 15, 2016
The following endnote summarizes the material revision made in this September 15, 2016 version of this Agreement compared to the October 28, 2015 version of this Agreement.
1Section 11 was updated.