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EARTHLINK® HOME NETWORKING SERVICE AGREEMENT
READ THIS SERVICE AGREEMENT CAREFULLY BEFORE USING THE EARTHLINK HOME NETWORKING SERVICE.
1. AGREEMENT
This Service Agreement ("Agreement") between EarthLink, Inc. ("EarthLink") and you for the EarthLink Home Networking Service ("Service"). This Agreement consists of the terms and conditions below, the specific terms of your billing plan for the Service, and the EarthLink Privacy Policy and the EarthLink Acceptable Use Policy which are found at www.earthlink.net/about/policies, all of which are incorporated herein.
By establishing an account with EarthLink for the Service or indicating agreement to subscribe to the Service on the EarthLink website at www.earthlink.net, you agree to be bound by this Agreement, and to use the Service in compliance with the terms of this Agreement.
2. TERM
The effective date of this Agreement begins on your account billing start date, as indicated on your first invoice. This Agreement will continue for the 12 month term of your billing plan commitment and then continue on a month-to-month basis thereafter until you notify us otherwise. EarthLink reserves the right to change prices of your billing plan upon 30 days written notice prior to the effective date of such new pricing. EarthLink reserves the right to change any of the features, content or applications of the Service at any time with or without notice to you. The current prices and features of the Service may be obtained by visiting the EarthLink website www.earthlink.net or by calling (888) 327-8454.
EarthLink may terminate this Agreement, your password, your account, or your use of the Service for any reason, including, without limitation, if EarthLink, in its sole discretion, believes you have violated this Agreement or if you fail to pay any charges when due. Termination notice will be sent to you via email or U.S. Mail to the address you provided when subscribing to the Service. This Agreement terminates upon the termination of your Service. Sections 5, 7, 8, 9, 10 and 12 of this Agreement will survive termination of this Agreement.
3. THE SERVICE
The Service includes installation, configuration, and ongoing technical support for a single home network that meets certain system requirements. You have the option to purchase EarthLink-provided equipment in connection with using the Service ("EarthLink-provided Equipment").
The Service term is 12 months. After the initial 12 month term, the Service will continue on a month-to-month basis. From time to time EarthLink may impose reasonable rules and regulations regarding the use of the Service. EarthLink reserves the right to change prices of the Service upon 30 days notice. EarthLink reserves the right to change features of the Service at any time. Current Service prices and features may be obtained by visiting the EarthLink website at www.earthlink.net or by calling (888) 327-8454.
The Service speed and quality can vary depending on location, line quality, inside wiring, Internet traffic, and other factors beyond the control of EarthLink. EarthLink does not guarantee upload, download, or network speeds or quality.
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 refund any money that you have paid. EarthLink will notify you of its intent to cancel as soon as reasonably possible. EarthLink will have no responsibility whatsoever for claims arising out of its failure or refusal to provide the Service.
4. REQUIREMENTS AND TECHNICAL SUPPORT LIMITATIONS
In order 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 a valid credit card, debit card or other EarthLink approved payment methods for the Service. The Service must be available to your location.
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 network meets the minimum system requirements before signing up for the Service.
EarthLink will use commercially reasonable effort to provide support for the home networking configurations listed on the EarthLink website at: www.earthlink.net/about/policies/homenetworking_terms.faces. 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 your hardware or software for technical support of their products.
Specifically, EarthLink will not be able to provide technical support for the following:
5. PAYMENT
The charges for the Service can be found at www.earthlink.net/software/stayconnected.faces?tab=homenetworking&p=start.
All monthly fees for the Service will be due in advance of the month incurred. You agree to pay all charges when due. EarthLink may charge for shipping, taxes and other applicable fees. All payments will be made in US dollars. The Service monthly fee is in addition to your high speed Internet monthly access fee.
Your account will be automatically inactivated if you put a stop payment on your account with a financial institution in connection with payment of your monthly bill.
Charges may be billed on or after your billing cycle date to your method of payment on file each month for the Service and any additional usage, services, taxes and fees. EarthLink is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by EarthLink.
You must provide accurate billing information including legal name, address, telephone number, and credit or debit card billing information, and report all changes to this information promptly to EarthLink. You agree to pay all taxes, surcharges, and fees set by the government. EarthLink may not always give advance notice of changes to these items.
You are responsible for any charges to your account. Questions regarding charges to an account should be directed to EarthLink's Customer Service Department at (888) 327-8454 or via online chat at support.earthlink.net. All charges are considered valid unless disputed in writing within thirty (30) days of the billing date and mailed to:
EarthLink, Inc.
Customer Service
1375 Peachtree Street, Level A
Atlanta, Georgia 30309
Adjustments will not be made for charges that are more than 30 days old.
If you provided EarthLink with a valid credit or debit card, you agree to maintain valid and current credit or debit card information on file with EarthLink at all times. 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, automatic billing options or updated credit or debit card information provided by your credit card or debit card company to EarthLink.
If purchasing the Service through a reseller, the reseller must pay all amounts owing for your account. If the reseller fails to pay EarthLink any amounts due, whether or not you have paid the reseller, your account will be subject to suspension or cancellation until you or the reseller has paid all amounts due. Delinquent accounts may be suspended or canceled at EarthLink's sole discretion; however charges will continue to accrue until the account is canceled. If your account is inactivated due to non-payment, you will be charged reactivation fees to reactivate your account.
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 invoice.
Delinquent accounts may be suspended or canceled at EarthLink's sole discretion.
6. INSTALLATION
If you purchased EarthLink-provided Equipment in connection with the Service, 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 are solely responsible for backing up all of your existing computer files and data. EarthLink and its employees, agents, contractors, and representatives will have no liability whatsoever for any damage to or loss or destruction of any of your hardware, software, files, data, or peripherals. You assume responsibility for impacts to or loss of any warranty associated with the opening of your computer for installation purposes.
If you are unable to perform self-installation, EarthLink may suggest an outside vendor to help install the EarthLink-provided Equipment. You will be responsible for all costs and scheduling associated with the installation by a third party. 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.
7. CANCELLATION
EarthLink only accepts cancellation by phone, fax, or U.S. Mail as specifically set forth below. EarthLink does NOT accept cancellations by email. If you cancel by telephone, you will be issued a confirmation number as your only proof of cancellation. EarthLink does not grant refunds or credits for any prior use including partial use during the last month of cancellation.
To cancel the Service you must call (888) 327-8454 or notify us via registered or certified mail, return receipt requested, to EarthLink, Inc., Customer Service, Home Networking Service, 1375 Peachtree Street, Level A, Atlanta, GA 30309. You may also cancel by fax to: (404) 795-1034. Please include your account number and a current phone number.
If you do cancel by one of the prescribed methods and are mistakenly billed again, EarthLink will refund any erroneous charges upon proof of cancellation except for those charges and fee that accrue as a result of the cancellation. If you cancel the Service before the end of the 12 month commitment period, you will be charged an early cancellation fee.
Cancellation will be effective at the end of the current billing cycle in which notice of cancellation is received or in which EarthLink canceled your Service. EarthLink may terminate your use of the Service for any reason, including, without limitation, if EarthLink, in its sole discretion, believes you are abusing the Service, you breached this Agreement or you failed to pay any charges when due.
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. DISCLAIMERS AND WARRANTIES
EARTHLINK DOES NOT REPRESENT, WARRANT, OR COVENANT THAT INSTALLATION BY YOU OR A THIRD PARTY CHOSEN BY YOU WILL ENABLE YOU TO SUCCESSFULLY ACCESS, OPERATE, OR USE THE SERVICE, NOR THAT SUCH INSTALLATION OR THE EARTHLINK-PROVIDED EQUIPMENT WILL NOT CAUSE DAMAGE TO YOUR COMPUTER, DATA, SOFTWARE, FILES, OR PERIPHERALS. IN ADDITION, EARTHLINK WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, OR FOR THE FAILURE TO PROPERLY INSTALL, ACCESS, USE, OR OPERATE THE SERVICE OR THE EARTHLINK-PROVIDED EQUIPMENT BECAUSE OF YOUR INSTALLATION.THE FOREGOING LIMITATION OF LIABILITY IS IN ADDITION TO AND WILL IN NO WAY BE CONSTRUED TO LIMIT ANY ANDALL LIMITATIONS OF LIABILITY SET FORTH ELSEWHERE IN THIS AGREEMENT.
CERTAIN EARTHLINK-PROVIDED EQUIPMENT MAY BE SUBJECT TO THIRD PARTY WARRANTIES, WHICH MAY BE PASSED THROUGH EARTHLINK TO YOU AT NO ADDITIONAL CHARGE. EARTHLINK WILL COMPLY WITH ALL REASONABLE REQUIREMENTS NECESSARY TO AFFECT THE PASS-THROUGH OF THE WARRANTY TO YOU. AT ITS SOLE OPTION, EARTHLINK OR ITS AGENT MAY REPLACE A DEFECTIVE HARDWARE ON BEHALF OF THE MANUFACTURER, PROVIDED YOU FOLLOW ALL APPLICABLE PROCEDURES AND OBTAIN A RETURN MATERIALS AUTHORIZATION (RMA) NUMBER.THIS WARRANTY DOES NOT COVER DEFECTS RESULTING FROM ACTS OUTSIDE OF EARTHLINK'S CONTROL, USE CONTRARY TO SPECIFICATIONS OR INSTRUCTIONS, OR REPAIR OR MODIFICATION BY ANYONE OTHER THAN EARTHLINK OR ITS CONTRACTOR. EARTHLINK RESERVES THE RIGHT TO MODIFY THIS WARRANTY AT ANY TIME. EARTHLINK WILL NOT BE RESPONSIBLE FOR ANY EARTHLINK-PROVIDED EQUIPMENT DAMAGED BY ANY NATURALLY OCCURRING EVENT SUCH AS LIGHTNING, FLOOD, OR EARTHQUAKE OR OTHER EVENTS OUT OF EARTHLINK'S CONTROL SUCH AS FIRE, POWER SURGES, OR THE ACTS OF OTHERS.
THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EARTHLINK DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. EARTHLINK MAKES NO EXPRESS WARRANTIES AND WAIVES ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH EARTHLINK OR THE INTERNET GENERALLY. NO ADVICE OR INFORMATION GIVEN BY EARTHLINK OR ITS REPRESENTATIVES WILL CREATE A WARRANTY. EARTHLINK AND ITS EMPLOYEES ARE NOT LIABLE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SERVICE OR THE INTERNET INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. IN ANY EVENT, EARTHLINK'S CUMULATIVE LIABILITY TO YOU FOR ANY ANDALL CLAIMS RELATING TO THE USE OF THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM.
EARTHLINK, ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND CONTRACTORS (COLLECTIVELY, "EARTHLINK PARTIES") WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM: OTHER USERS ACCESSING YOUR COMPUTER; SECURITY BREACHES; EAVESDROPPING; DENIAL OF SERVICE ATTACKS; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; YOUR RELIANCE ON OR USE OF THE EARTHLINK-PROVIDED EQUIPMENT, ANY OTHER EQUIPMENT OR THE SERVICE, OR THE MISTAKES, OMISSION, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS, OR ANY FAILURE OF PERFORMANCE OF THE EARTHLINK-PROVIDED EQUIPMENT, OTHER EQUIPMENT OR THE SERVICE;THE USE OF THE EARTHLINK-PROVIDED EQUIPMENT OR THE SERVICE BY YOU OR A THIRD PARTY THAT INFRINGES THE COPYRIGHT, PATENT, TRADEMARK,TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INTELLECTUAL PROPERTY RIGHTS, PROPRIETARY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY; THE ACCURACY, COMPLETENESS,AND USEFULNESS OF ALL SERVICES, PRODUCTS, OR OTHER INFORMATION,AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE PROVIDED THROUGH THE SERVICE OR THE INTERNET.
THE FOREGOING LIMITATION APPLIES TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF THE EARTHLINK PARTIES WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO THE CAUSE OF ACTION AGAINST ANY EARTHLINK PARTY IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE. YOUR EXCLUSIVE REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET FORTH IN THIS AGREEMENT. ANY WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
10. 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 (direct, indirect and consequential), attorney's fees and expenses that an EarthLink Party may sustain or incur by reason of your use of the Service or the use of the Service by anyone else in your household (i) in violation of applicable laws, regulations or the terms of this Agreement, (ii) to transmit any messages, content, images or other information via the Internet, (iii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with use of the Service, or (iv) in any manner that harms any person resulting in the personal injury or death of any person or in damage to or loss of any tangible or intangible (including data) property.
11. JURISDICTION
This Agreement is governed by Georgia law without regard to conflict of law provisions. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be settled by arbitration, and administered by the American Arbitration Association under its Commercial Arbitration Rules. Any such arbitration will be governed by Georgia law and will be held in Atlanta, Georgia. The arbitrator will be an expert in the field of Internet services. The arbitrator's award will be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. There will be no class action arbitration pursuant to this Agreement.
California residents are entitled to the following information:
The Service is provided by EarthLink, Inc., 1375 Peachtree Street, Atlanta, Georgia 30309. Phone: (800) 890-6356.
Charges vary depending on the type of Service. Current pricing may be obtained from the EarthLink website: www.earthlink.net. EarthLink reserves the right to change prices and institute new fees at any time upon 30 days prior notice.
Complaints and questions about the Service should be directed to EarthLink Customer Service at (800) 890-6356. The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814 or by telephone at (916) 445-1254.
Actions arising from this Agreement may be brought in an appropriate California small claims court.
12. REVISIONS TO THE AGREEMENT
EarthLink may revise, amend, or modify this Agreement from time to time. Notice of any revision, amendment, or modification will be posted on the EarthLink' Web site at www.earthlink.net/about/policies and/or your start pages and/or by email and/or mailings to your primary EarthLink email account and will be effective on the date noted in the posting. This Agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of EarthLink. By continuing to use the Service after the amendments are effective, you accept and agree to abide by them.
13. 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 will be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. EarthLink will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of EarthLink as reflected in the original provision. Nothing in this Agreement or in the understanding of the parties construes upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. EarthLink may subcontract any work, obligations or other performance required of EarthLink under this Agreement without your consent. EarthLink will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a government in its sovereign capacity, acts of war, terrorism, acts of a public enemy, fires, earthquakes, acts of God, labor disputes, strikes, work slow-downs or other labor-related activity.
Version 03-05-2009
