READ THIS INTERNET SERVICE AGREEMENT CAREFULLY BEFORE USING THE EARTHLINK AND PEOPLEPC SERVICES LISTED BELOW.
This Internet Service Agreement ("Agreement") governs your use of the following Internet access services:
By establishing an account with EarthLink, 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 begins on your account billing start date, as indicated on your first invoice. This Agreement terminates or expires upon the termination of your account. Sections 9, 11, 12, 13, 15, 16, 18 and 19 of this Agreement will survive termination or expiration of this Agreement.
3. REGISTRATION 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 a valid credit card, debit card or other EarthLink approved payment method 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.
In addition, the Service must be available to your location. The Service may require separate active telephone or cable service providers in order for the Service to work. You are responsible for charges for such telephone or cable service providers. Please note that changing telephone carriers or cable providers may result in substantial interruption of the Service and may result in fees associated with cancellation and setting up a new account.
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.
4. USERNAMES, PASSWORDS, AND SECURITY
Upon registration, you will receive a username, a password, and other account information. You will be responsible for use of the Service by any person who uses your username and password to access the Service, whether or not you specifically authorize such person's use or actions, including maintaining the confidentiality of your username and password. You must notify EarthLink immediately upon discovering any unauthorized use of your account information. 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 (i) maintaining the security of your computer and data, including protection of your username and password, (ii) the encryption of data, and (iii) back-up and restoration of your computer and data. EarthLink recommends that you use anti-virus, anti-spyware and firewall software including appropriately updating such software.
5. SERVICE REQUIREMENTS FOR EARTHLINK DIAL-UP, PEOPLEPC DIAL-UP, EARTHLINK DSL AND PEOPLEPC DSL
The minimum computer requirements for (i) the EarthLink Dial-Up and the EarthLink Residential DSL Service are listed on the EarthLink website located at www.earthlink.net and (ii) the PeoplePC Dial-Up Service and the PeoplePC DSL Service are listed on the PeoplePC website located at www.peoplepc.com.
EarthLink will ship software to you to install on your computer for the EarthLink Dial-Up Service and the PeoplePC Dial-Up Service. If your computer does not have a modem to access a dial-up connection, you may order a modem from EarthLink ("EarthLink Dial-Up Modem") to access the EarthLink Dial-Up Service or the PeoplePC Dial-Up Service (See Section 20).
For the EarthLink Residential DSL Service and the PeoplePC DSL Service, EarthLink will ship the free DSL self-installation kit that will include a DSL modem ("EarthLink DSL Modem") and filters in addition to software.
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 Services may only work using certain telephone carriers or non-PBX (including rollover/party line) phone systems. Some Services may require the use of specific hardware and/or software and may be limited by specific geographic location. The billing plans for some Services may vary by geographic location and phone carrier or cable provider. In the event that you change to a different Service, consult with an EarthLink representative regarding how such change will affect your billing plan.
Unless your Service includes a static IP address, you will be allocated a dynamic IP address. For the EarthLink Dial-Up Service and the PeoplePC Dial-Up Service, EarthLink reserves the right to timeout connections that EarthLink deems are inactive or excessive.
6. USE OF THE SERVICE
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 email 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 EarthLink 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.
EarthLink Dial-Up and PeoplePC Dial-Up accounts permit a dial-up connection to the Internet from only one computer at a time without incurring additional fees; however, if two or more computers are logged into an EarthLink Dial-Up account or a PeoplePC Dial-Up account to access the Internet at the same time ("Simultaneous Usage"), Simultaneous Usage charges will accrue for that month. The Simultaneous Usage fee is $1.00 per hour, pro-rated to the minute, through the end of the monthly billing cycle. The Simultaneous Usage fee will be added to your monthly bill. Although some EarthLink Dial-Up and PeoplePC Dial-Up plans come with multiple email addresses, Simultaneous Usage charges will accrue if two or more dial-up connections from one Dial-Up account are accessing more than one of these email addresses at the same time.
EarthLink Residential DSL and PeoplePC DSL customers also may accrue Simultaneous Usage fees if accessing the Internet through a dial-up modem. DSL Service accounts allow up to 20 hours per month of dial-up modem access to the Internet. If you access the Internet via two or more dial-up modem connections at the same time using the same DSL Service account, Simultaneous Usage charges will accrue for that month. If you have a DSL account, your primary connection via the DSL Service does not count toward the Simultaneous Usage calculations.
7. LOCAL TELEPHONE, TOLL AND LONG DISTANCE CHARGE
When using the Service, you are solely responsible for determining if use of a particular dial-up number, if applicable, will cause you to incur long-distance, toll, or any other charges, including Simultaneous Usage charges. EarthLink does not guarantee that any dial-up access numbers EarthLink provides will be a local call from your location. EarthLink is not responsible for any long-distance, toll, or other charges you incur. Toll-free (800, 888, 877), international, and Simultaneous Usage access costs will be extra.
EarthLink may change its POP numbers at any time. EarthLink reserves the right to direct you to use certain numbers to access the Service or to restrict use of specific access numbers.
8. BILLING AND PAYMENT
You agree to pay the monthly fees in your billing plan for the Service and to pay (i) applicable taxes, surcharges, and fees required by any applicable government entity and (ii) other applicable fees and charges. Depending on the billing plan for your Service, the other fees and charges may include hardware fees, activation fees, early termination fees, method of payment fees, or shipping and handling fees. If your billing plan is based on a monthly subscription fee in addition to any of the aforementioned charges, you will be billed a flat monthly fee. If your billing plan is based on usage, you will be billed each month based on usage. EarthLink reserves the right to change the monthly fees of your billing plan upon 30 days prior notice to your EarthLink or PeoplePC contact email address on file prior to the effective date of such new monthly fee. All payments must be made in US dollars.
All charges are considered valid unless disputed in writing within 30 days of the billing date and mailed to:
1375 Peachtree Street
Atlanta, Georgia 30309
Adjustments will not be made for charges that are disputed more than 30 days after the billing date.
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 usage, services, taxes and fees. EarthLink is not responsible for any charges or resulting from charges billed by EarthLink including, but not limited to, overdrawn accounts or exceeding credit card 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.
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 a fee for returned checks or returned bank drafts from your financial institution.
If you signed up for a pre-paid billing plan, you will receive the Service for the duration of your membership term without further monthly Service fees. Depending on which pre-paid billing plan you signed up under, your membership may convert to either a monthly or a fixed period membership at the end of the fixed pre-paid membership term. Pricing will be subject to the rates in effect at that time for that Service. If you cancel your membership before the end of the fixed term or if EarthLink terminates your membership for violations of this Agreement or other applicable EarthLink agreements or policies, and you have paid EarthLink in advance, the amount you have paid for your membership will not be refunded in whole or in part.
Your account will be automatically inactivated if you put a stop payment on your account with your financial institution in connection with payment of your monthly bill.
To cancel your Service you must do one of the following:
- Telephone Cancellation for EarthLink Services: 1-888- 327-8454
- Telephone Cancellation for PeoplePC Services: 1-866-772-6277
- Fax Cancellation for both EarthLink Services and PeoplePC Services: 1-404-795-1034 -include your account number and current telephone number.
- Mail Cancellation for both EarthLink Services and PeoplePC Services: Send registered or certified mail, return receipt requested to:
Cancel (write Name of 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. Termination notice will be sent to you via (i) your EarthLink or PeoplePC 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.
On the inactivation date of your Service, your Service will be terminated and you will no longer have access to your email, files or other information on EarthLink's servers without further notice to you. If you decide to reactivate your canceled account, EarthLink will bill you a reactivation fee.
10. MONITORING THE SERVICE
11. DISCLAIMERS AND WARRANTIES
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 REGARDING ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH EARTHLINK OR THE INTERNET GENERALLY. NO ADVICE OR INFORMATION GIVEN BY EARTHLINK, ITS SUPPLIERS OR VENDORS WILL CREATE A WARRANTY.
EARTHLINK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND VENDORS (COLLECTIVELY, EARTHLINK PARTIES) WILL HAVE NO LIABILITY 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, THE CUMULATIVE LIABILITY OF ANY EARTHLINK PARTY 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 DOES NOT WARRANT OR GUARANTEE THAT THE SERVICE CAN BE PROVISIONED TO YOUR LOCATION EVEN IF EARTHLINK HAS ACCEPTED YOUR ORDER FOR THE SERVICE.
THE EARTHLINK PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS IN CONNECTION WITH THE SERVICES, THE EARTHLINK DIAL-UP MODEM OR THE EARTHLINK DSL MODEM 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 SERVICE, THE EARTHLINK DIAL-UP MODEM OR THE EARTHLINK DSL MODEM; INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS REGARDLESS OF WHETHER YOUR DATA ARE MAINTAINED ON THE EARTHLINK SERVERS OR YOUR DEVICE(S); DELAYS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE OF THE SERVICE, THE EARTHLINK DIAL-UP MODEM OR THE EARTHLINK DSL MODEM; THE USE OF THE SERVICE, THE EARTHLINK DIAL-UP MODEM, OR THE EARTHLINK DSL MODEM 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 PRODUCTS OR OTHER INFORMATION; OR THE MERCHANTABILITY OF ANY MERCHANDISE OR OTHER ITEMS PROVIDED OR SOLD BY THIRD PARTY WEB SITES (INCLUDING ANY CO-BRANDED WEB SITES LINKED FROM THE EARTHLINK OR PEOPLEPC WEB SITES).
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 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).
13. ELECTRONIC COMMUNICATIONS
You consent to receive notices, documents, disclosures and other communications from EarthLink (Communications) in an electronic format to your EarthLink or PeoplePC 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 or PeoplePC contact email address on file 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.
14. 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 or http://psc.peoplepc.com/ for the PeoplePC Services.
To contact 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.
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.
15. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
16. 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.
17. 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 and the PeoplePC 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 16; 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.
19. ADDITIONAL TERMS FOR THE DSL SERVICE AND THE EARTHLINK DSL MODEM
This Section 19 explains the additional terms and conditions specific to the DSL Service and the EarthLink DSL Modem. EarthLink charges a shipping and handling fee for shipping the DSL self-installation kit to you. The free DSL self-installation kit includes the software needed to begin using the DSL Service and the EarthLink DSL Modem and filters. After your payment of the shipping and handling fee clears, EarthLink will begin the provisioning process which includes shipping the DSL self-installation kit to you. EarthLink recommends use of such EarthLink DSL Modem in order to ensure proper ongoing support for the DSL Service; however, if you decide to use another provider's modem, the provisioning process will begin immediately after sign-up.
The installation, use, inspection, maintenance, repair, and removal of the EarthLink DSL Modem may result in a Service outage or potential damage to your computer. You are solely responsible for backing up all of your existing computer files and data. The EarthLink Parties 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 the self-installation of the EarthLink DSL Modem, 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 by a third party. You are also responsible for all inside wiring repair necessary to install the EarthLink DSL Modem. 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, defend and hold the EarthLink Parties harmless from and against any claims of the owner of the premises arising out of the performance of this Agreement.
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 WILL NOT CAUSE DAMAGE TO YOUR COMPUTER, DATA, SOFTWARE, FILES, OR PERIPHERALS.
THE EARTHLINK PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, OR FOR THE FAILURE TO PROPERLY INSTALL, ACCESS, USE, OR OPERATE THE EARTHLINK DSL MODEM OR THE DSL SERVICE BECAUSE OF YOUR INSTALLATION. THE FOREGOING LIMITATION OF LIABILITY IS IN ADDITION TO AND WILL IN NO WAY BE CONSTRUED TO LIMIT ANY AND ALL LIMITATIONS OF LIABILITY SET FORTH ELSEWHERE IN THIS AGREEMENT.
Because of the complex nature of Internet service, availability, and the underlying infrastructure, it may not be possible to provide the DSL 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. It may take up to 90 days to determine if EarthLink is able to provide the DSL Service. The EarthLink Parties will have no responsibility whatsoever for claims arising out of EarthLink's failure or refusal to complete the installation or provide the DSL Service.
Changes to your DSL Service billing plan in months two through twelve may result in an early termination fee. Such changes may include (i) cancellation of your DSL Service, (ii) downgrading or changing your DSL Service to another EarthLink or PeoplePC Service, or (iii) if you move the DSL Service to a new location, change your local telephone company within the same location or discontinue your local telephone service within the same location.
If you move your DSL Service or change your local telephone company and EarthLink can provide the DSL Service at the new location or on the new telephone line, you must pay a reactivation fee because this change requires a new installation; however, EarthLink will credit a portion of any early termination fee to your account providing you reactivate the DSL Service and begin a new billing plan within 60 days from the date you terminated the previous DSL Service. If EarthLink cannot provide the DSL Service in your new location on your new telephone line, you will be charged the early termination fee.
If you cancel your DSL Service account within the first 35 days from the shipment date of your EarthLink DSL Modem, you must return your EarthLink DSL Modem. EarthLink will mail you a prepaid return shipping label upon cancellation and will not accept returns without an EarthLink-supplied shipping label. All EarthLink DSL Modem returns must have an EarthLink supplied shipping label or they will be rejected.
If you cancel your account and return your EarthLink DSL Modem in its original packaging (or equivalent) using an EarthLink supplied return shipping label within 35 days from the shipment date of your EarthLink DSL Modem, EarthLink will refund certain fees incurred up to the cancellation date, excluding charges for certain usage, for example: international calls, directory assistance and other metered usage, applicable taxes or other governmental fees, shipping and handling.
EarthLink warrants the EarthLink DSL Modem against defects in material and workmanship for a warranty period of one year starting from the shipment date. This warranty applies to the original end-user purchaser and is not transferable. EarthLink, at its option, will repair or replace your original EarthLink DSL Modem that proves to be defective on an active account because of manufacturer's defect at no cost to you provided that (i) you call the EarthLink Technical Support Department within one year of your original shipment date; (ii) the EarthLink Technical Support Department certifies that a defect has occurred; and (iii) you return your EarthLink DSL Modem in its original packaging (or equivalent) using the EarthLink provided prepaid shipping label within 30 days of certification by the EarthLink Technical Support Department. Upon certification, EarthLink will ship a replacement EarthLink DSL Modem to you. This warranty does not cover defects resulting from use of the EarthLink DSL Modem contrary to the instructions or repair or modification by any party other than EarthLink. EarthLink will not replace any EarthLink DSL Modem with a new component without a fee after one year from your original shipment date. Failure to return the certified EarthLink DSL Modem within 30 days of certification will result in a charge for the new EarthLink DSL Modem. This warranty gives you specific legal rights, and you may also have other rights that vary from state to state.
20. ADDITIONAL TERMS FOR THE EARTHLINK DIAL-UP MODEM
This Section 20 explains the additional terms and conditions specific to the EarthLink Dial-Up Modem. EarthLink will ship the EarthLink Dial-Up Modem to you after your payment for your EarthLink Dial-Up Modem and shipping and handling fees clears.
The EarthLink Dial-Up Modem package will include printed instructions explaining how to install the EarthLink Dial-Up Modem in your computer. If you have any problems with installation of the EarthLink Dial-Up Modem, you can contact EarthLink Technical Support for assistance. If you are unable to perform the self-installation of the EarthLink Dial-Up Modem, EarthLink Technical Support may suggest an outside vendor to assist you with its installation. You will be responsible for all costs and scheduling associated with the installation of the EarthLink Dial-Up Modem a third party.
The installation, use, inspection, maintenance, repair, and removal of the EarthLink Dial-Up Modem may result in a Service outage or potential damage to your computer. You are solely responsible for backing up all of your existing computer files and data. The EarthLink Parties will have no liability whatsoever for any damage to or loss or destruction of any of your hardware, software, files, data, or peripherals.
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 WILL NOT CAUSE DAMAGE TO YOUR COMPUTER, DATA, SOFTWARE, FILES, OR PERIPHERALS.
THE EARTHLINK PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, OR FOR THE FAILURE TO PROPERLY INSTALL, ACCESS, USE, OR OPERATE THE EARTHLINK DIAL-UP MODEM OR THE SERVICE BECAUSE OF YOUR INSTALLATION. THE FOREGOING LIMITATION OF LIABILITY IS IN ADDITION TO AND WILL IN NO WAY BE CONSTRUED TO LIMIT ANY AND ALL LIMITATIONS OF LIABILITY SET FORTH ELSEWHERE IN THIS AGREEMENT.
You may cancel your order for your EarthLink Dial-Up Modem by calling EarthLink within thirty-five (35) days from the date of shipment in order to receive a refund. EarthLink will mail you a prepaid return shipping label after this call. All EarthLink Dial-Up Modem returns must be shipped with the EarthLink supplied shipping label or they will be rejected. Upon receipt of the returned EarthLink Dial-Up Modem, EarthLink will send you a refund of your original payment.
EarthLink warrants the EarthLink Dial-Up Modem against defects in material and workmanship for a warranty period of one year starting from the shipment date. This warranty applies to the original end-user purchaser and is not transferable. EarthLink, at its option, will repair or replace your original EarthLink Dial-Up Modem that proves to be defective on an active account because of manufacturer's defect at no cost to you provided that (i) you call the EarthLink Technical Support Department within one year of your original shipment date; (ii) the EarthLink Technical Support Department certifies that a defect has occurred; and (iii) you return the EarthLink Dial-Up Modem within 30 days of certification by the EarthLink Technical Support Department using the EarthLink prepaid return shipping label. This warranty does not cover defects resulting from use of the EarthLink Dial-Up Modem contrary to the instructions or repair or modification by any party other than EarthLink. EarthLink will not replace your EarthLink Dial-Up Modem without a fee if you call EarthLink Technical Support Department about the defect in your EarthLink Dial-Up Modem after one year from your original shipment date. This warranty gives you specific legal rights, and you may also have other rights that vary from state to state.
The following endnotes summarize the revisions made in this May 1, 2013 version of the Agreement compared to the previous version of the Agreement dated January 3, 2012.
1 The last sentence in the last paragraph of Section 5 was revised to clarify that EarthLink reserves the right to timeout connections that EarthLink deems inactive or excessive