EARTHLINK® HOME NETWORKING SERVICE AGREEMENT
READ THIS SERVICE AGREEMENT CAREFULLY BEFORE USING THE EARTHLINK HOME NETWORKING SERVICE.
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 and all applicable federal, state and local laws, rules and regulations.
2. TERM OF THIS AGREEMENT
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.
This Agreement terminates upon the termination of your Service. Sections 6, 7, 8, 9, 10, 11, 13, 14 and 16 of this Agreement will survive termination of this Agreement
3. 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 the router and/or adapters through the EarthLink web site ("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. 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 reserves the right to change any of the features, content or applications of the Service at any time with or without notice to you.
4. ACCOUNT 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. You represent that all information you provided during the registration process is accurate and complete and that you will update such information with EarthLink should it change. EarthLink reserves the right to verify the accuracy of the information you submit in connection with your registration and your account and you consent to such verification.
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.
EarthLink will use commercially reasonable effort to provide 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 your hardware or software for technical support of their products.
Specifically, EarthLink will not be able to provide technical support for the following:
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.
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, billing fees, postage and handling and other applicable fees.1 All payments will be made in US dollars. The Service monthly fee is in addition to your EarthLink Internet monthly access fee, if applicable,
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 including, but not limited to, overdrawn accounts or exceeding credit limits. EarthLink may use various means to recover monies due. If EarthLink uses a collection agency or uses legal action to recover monies due, you agree to pay all fees arising from or relating to the recovery of such monies, including attorneys' fees.1
You must provide accurate billing information including legal name, address, telephone number, and credit card 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 30 days of the billing date and mailed to:
1375 Peachtree Street, Level A
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 validate the payment method information you provide at registration and account updates including attempting up to a $1.00 authorization to your credit card or debit card which is not actually billed. If you provided EarthLink with a valid credit card or debit card, you agree to maintain valid and current credit or debit card information on file with EarthLink at all times.
If you provided EarthLink with a valid credit card or debit card, you agree to maintain valid and current credit card 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 or automatic billing options. In addition, if your credit or debit card company provides updated credit card 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 card or debit card on file.
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. When you pay your fees by check, you authorize EarthLink to electronically process your payment. If your check is processed electronically, your checking account may be debited on the same day as 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 you a fee for returned checks or returned bank drafts from your financial institution.2
EarthLink reserves the right to change prices of the Service upon 30 days notice.
To cancel your Service you must do one of the following:
Cancel Home Networking Service
1375 Peachtree Street
Atlanta, GA 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 your 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 of 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 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, you failed to make payment when due or you did not provide EarthLink with a new charge card, or debit card expiration date or expiration date of any other method of payment before the existing date expired; (ii) EarthLink, in its sole discretion, believes you have breached this Agreement, other EarthLink agreements or other EarthLink policies; or (iii) your use of the Services is prohibited by law.
The termination notice will be sent to you via (i) your EarthLink contact email address on file or (ii) U.S. Mail to the mailing address on file. If your Service is canceled by you or by EarthLink prior to the end of the fixed period in your billing plan, EarthLink will bill you the early termination fee set forth in your billing plan. In certain situations, EarthLink may waive the early termination fee, including, but not limited to, 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.
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.
Delinquent accounts may be suspended or canceled at EarthLink's sole discretion. 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. 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.
If you decide to reactivate your canceled account, EarthLink will bill you a reactivation fee.3
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 NOT BE LIABLE 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.
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.
YOU ACKNOWLEDGE THAT THE SERVICE IS 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 INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY EARTHLINK OR ITS OR ITS SUPPLIERS OR VENDORS WILL CREATE A WARRANTY. EARTHLINK AND ITS EMPLOYEES WILL NOT BE LIABLE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SERVICE OR THE EATHLINK-PROVIDED EQUIPMENT NCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. IN ANY EVENT, EARTHLINK'S CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL 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 VENDORS (COLLECTIVELY, "EARTHLINK PARTIES") WILL NOT BE LIABILE 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; OR 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 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. ANY WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO 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, 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 through your account including, use 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) 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 such use; or (iv) 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
You consent to receive notices, documents, disclosures and other communications from EarthLink (Communications) in an electronic format to your EarthLink contact email address on file, and agree that the Communications provided to you by EarthLink electronically satisfy any legal requirement that such communications would satisfy if they were in a writing. Your consent to receive Communications from EarthLink electronically to your EarthLink contact email address on file and EarthLinks agreement to do so applies to all of your transactions and interactions with EarthLink. If you do not want to consent to receive Communications from EarthLink electronically or if you withdraw such consent, then you must stop using the Service. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between EarthLink and you prior to the time you withdraw your consent.
12. CUSTOMER SERVICE AND TECHNICAL SUPPORT
For online customer support including troubleshooting email and connection issues, billing issues, setting up your email, and online account maintenance, go to http://support.earthlink.net/ for the EarthLink Services.
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/.
Because of the wide range of hardware and software configurations and compatibility, it may not be possible for EarthLink to provide technical support for your current set of products. In certain circumstances, it may be necessary to refer you to the manufacturer of your hardware or a software vendor for technical support of their products.
13. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
14. DISPUTE RESOLUTION BY BINDING ARBITRATION
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be settled by arbitration, and administered by the American Arbitration Association under its Commercial Arbitration Rules. Any such arbitration will be governed by Georgia law. The arbitrator will be an expert in the field of Internet services and will be bound by the terms of this Agreement. The arbitrator's award will be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
ANY CUSTOMER SEEKING ARBITRATION PURSUANT TO THIS AGREEMENT WILL PURSUE SUCH ARBITRATION ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS ACTION OR REPRESENTATIVE BASIS PURSUANT TO THIS AGREEMENT.
California residents are entitled to the following information:
The Service is provided by EarthLink, Inc., 1375 Peachtree Street, Atlanta, Georgia 30309.
Charges vary depending on the type of Service. EarthLink reserves the right to change fees and institute new fees at any time upon 30 days prior notice as further described in Section 13 above.
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.
15. REVISIONS TO THE AGREEMENT
EarthLink may revise, amend, or modify this Agreement at any time by posting the revised version on the EarthLink Web Site. 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 the 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 will be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration 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 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 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.
The following endnotes summarize the revisions made in this July 7, 2011 version of the Agreement compared to the previous version of the Agreement dated May 6, 2011.
1The last sentence is the third paragraph in Section 6 was added to clarify that you will be responsible for fees in connection with recovering monies due.
2The last sentence in the last paragraph in Section 6 was added to clarify that you will be charged a fee for returned checks or returned bank drafts.
3 The last paragraph in Section 7 was added to clarify that you will be charged a reactivation fee if you reactivate your canceled account.