READ THIS INTERNET SERVICE AGREEMENT CAREFULLY BEFORE USING THE EARTHLINK AND PEOPLEPC SERVICES LISTED BELOW.
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.
This Internet Service Agreement ("Agreement") governs your use of the following Internet access services and products:
2. TERM OF THIS AGREEMENT
The effective date of this Agreement is the date on which you subscribed to the Service. This Agreement terminates upon the termination of your Service account. Sections 10, 13, 14, 15, 17, 18, and 20 of this Agreement will survive 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 card, 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, for shipping the EarthLink Dial-Up Modem or the EarthLink DSL Modem, if applicable. 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.
The Service must be available to your location. EarthLink may accept or reject any potential subscriber to the Service in its sole discretion. Even if EarthLink has accepted your order, EarthLink cannot guarantee that the Service can be provisioned to your address.
4. USERNAMES AND PASSWORDS, SECURITY
Upon subscription, you will receive a username, a password, and other account information. You will be responsible for (i) maintaining the confidentiality of your username and password, and (ii) the use of your Service by any person who uses your username and password to access the Service, whether or not you specifically authorize such person's use. You must notify EarthLink immediately upon discovering any unauthorized use of your 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 maintaining the security of (i) the device (such as a desktop, laptop, notebook, tablet or smart phone ("Device") you will use in connection with the Service; (ii) any WI-FI network you will use in connection with the Service; (iii) your data; and (iv) your username and password. In addition, you are solely responsible for the encryption of any of your data and the back-up and restoration of your Device and data. EarthLink recommends that you use anti-virus, anti-spyware and firewall software and that you update this software, as recommended by the applicable provider.
5. GENERAL DESCRIPTION OF AND RESTRICTIONS ON THE SERVICES
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 Service may require separate active telephone or cable service in order for the Service to work. You are responsible for charges for such telephone or cable service. 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.
Because of the complex nature of Internet service, availability, and the underlying infrastructure, it may not be possible to provide 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 EarthLink Residential DSL Service or the PeoplePC Residential DSL Service (collectively referred to herein as the "DSL Service").
The DSL Service includes a dial-up connection to the Internet for up to 20 hours per monthly billing cycle. The EarthLink Dial-Up Service and the PeoplePC Dial-Up Service (collectively, "Dial-Up Service") also include a dial-up connection to the Internet for up to 20 hours per monthly billing cycle. In calculating the 20 hours of usage for both the DSL Service and the Dial-Up Service, the dial-up usage of each Device logged into your account to access the Internet is counted. For example, if you have two Devices logged in from 10:00 a.m. to 11:00 a.m., your total usage for that time period will be 2 hours of usage. If your dial-up connection usage exceeds 20 hours per month, you will be charged an additional $1.00 per hour (up to a maximum of $21.95 per month), pro-rated to the minute, through the end of the monthly billing cycle.
The Dial-Up Service allows a dial-up connection to the Internet from only one computer at a time without incurring additional fees; however, if two or more Devices are logged into a 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 access plans come with multiple email addresses, Simultaneous Usage charges will accrue if two or more dial-up connections from one Dial-Up Service account are accessing more than one of these email addresses at the same time.
Unless your Service includes a static IP address, you will be allocated a dynamic IP address. For the Dial-Up Service, EarthLink reserves the right to timeout connections that EarthLink deems are excessive.
6. SPECIFIC TERMS FOR THE EARTHLINK ACCESS SOFTWARE, THE DIAL-UP MODEM AND THE DSL MODEM
EarthLink will ship a free self-installation kit ("Self-Installation Kit") that will include software ("EarthLink Access Software") that you may use to access the Dial-Up Service or the DSL Service. The EarthLink Access Software includes a setup wizard to guide you step-by-step through the installation process. The minimum computer requirements for the EarthLink Access Software are located at www.earthlink.net or www.peoplepc.com .
In addition to the EarthLink Access Software, the Dial-Up Service and the DSL Service require a modem to access the Internet.
EarthLink recommends use of the EarthLink DSL Modem to ensure proper ongoing support for the DSL Service. The EarthLink DSL Modem for new DSL Service subscribers is free and you just have to pay the shipping and handling fees. The EarthLink DSL Modem has a 365 days' warranty from the original shipment date of the EarthLink DSL Modem, as stated on its packing slip, against defects in material and workmanship under ordinary consumer use from the shipment date ("DSL Warranty Period"). New DSL Service subscribers have the option to decline EarthLink's offer of a free EarthLink DSL Modem. However, EarthLink does not guarantee technical support of other modems.
The warranty for the EarthLink DSL Modem includes the following:
If your Device does not have a modem to access a dial-up connection, you may order the EarthLink Dial-Up Modem to access the Dial-Up Service for a one-time charge plus shipping and handling fees. EarthLink warrants the EarthLink Dial-Up Modem against defects in material and workmanship under ordinary consumer use for a warranty period of 365 days from the original shipment date of the EarthLink Dial-Up Modem ("Dial-Up Warranty Period"). The original shipment date is stated on the EarthLink packing slip. This warranty applies to the original subscriber and is not transferable.
The warranty for the EarthLink Dial-Up Modem includes the following:
This warranties for the EarthLink DSL Modem and the EarthLink Dial-Up Modem (each an "EarthLink Modem") do not cover defects resulting from use contrary to the instructions or repair or modification by you or any party other than EarthLink. This warranty gives you specific legal rights, and you may also have other rights that vary from state to state.
If you have any problems with installation of the EarthLink Modem, you can contact EarthLink Technical Support for assistance. EarthLink may suggest an outside vendor to help install the EarthLink Modem. You will be responsible for all costs and scheduling associated with the installation of the EarthLink Modem. You are also responsible for all inside wiring repair necessary to install for such installation.
7. LOCAL TELEPHONE, TOLL AND LONG DISTANCE CHARGE
EarthLink will provide you with a dial-up access number to access the Service ("POP Number"). When using the Service, you are solely responsible for determining if use of a particular POP Number will cause you to incur long-distance, toll, or any other charges, including Simultaneous Usage charges. EarthLink does not guarantee that any POP Number that EarthLink provides will be a local call from your location. EarthLink is not responsible for any long-distance, toll, or other charges you incur.
EarthLink may change its POP numbers at any time. EarthLink reserves the right to direct you to use certain POP Numbers to access the Service or to restrict use of specific POP Numbers.
8. PROVISIONING, BILLING AND PAYMENT
If your billing plan is based on a monthly subscription fee, 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. In addition, your bill will include (i) taxes, surcharges, and fees required by any applicable government entity and (ii) shipping and handling fees. All payments must be made in US dollars.
For monthly subscription billing plans, 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.
Charges may be billed on or after your billing cycle date to your method of payment on file each month for the Service including any additional charges incurred (e.g. taxes and fees). EarthLink is not responsible for any fees resulting from charges billed by EarthLink including, but not limited to, overdrawn accounts or exceeding credit card limits.
If you provided EarthLink with a valid credit or debit card, you agree to maintain valid and current credit or debit card information with EarthLink at all times. If you authorized EarthLink to automatically deduct (" ACH Debit ") your monthly Service fees and any other charges, fees, or taxes billed to you, from your checking or savings bank account, then you hereby reaffirm your agreement to the Recurring Automatic Bank Draft Authorization Agreement1. 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. EarthLink will email an e-invoice to your primary EarthLink or PeoplePC email address selected by or assigned to you during the subscription process ("Contact Email Address") each month or if you designated a different billing email address, EarthLink will email the e-invoice to such billing email address each month. You may request that EarthLink send a paper invoice to your billing mailing address each month rather than an e-invoice. EarthLink will charge you an account fee for each such paper invoice.
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. In addition to your monthly paper invoice, you may request that the monthly invoice also be sent to you via your Contact Email Address or if you designated a different billing email address , to such billing email address. EarthLink will charge you an account fee for each such paper invoice.
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.
1375 Peachtree Street
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 (i) change fees and institute new fees (for example, equipment fees) associated with your Service or any of your value added services upon email notice at least 30 days prior to the effective date of such new fee to your Contact Email Address and (ii) change fees associated with your account upon email notice at least 30 days prior to the effective date of such new fee to your Contact Email Address or your billing email address if different from your Contact Email address.
EarthLink may use various means to recover monies due. If EarthLink uses a collection agency or 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.
9. BILLING PLAN FEATURES (INCLUDING EMAIL STORAGE AND WEBSPACE)
The billing plans for some Services may vary by geographic location, phone carrier and cable provider. In the event that you change to a different Service, prior to changing Service consult with an EarthLink representative regarding how such change will affect your billing plan.
If you signed up for a pre-paid billing plan, you will receive the applicable Service for the duration of your subscription term without further monthly Service fees. Depending on the terms of your pre-paid billing plan, your subscription may convert to either a monthly or a fixed period subscription at the end of the initial fixed pre-paid subscription term. Pricing will be subject to the rates in effect at that time for that Service. If you cancel your subscription before the end of the fixed term or if EarthLink terminates your subscription before the end of the fixed term for violation of this Agreement or other applicable EarthLink agreements or policies, EarthLink will not refund, in whole or in part, the amount you have paid for your subscription.
The email storage limits for your billing plan are posted on the EarthLink website located at www.earthlink.net or the PeoplePC website located at www.peoplepc.com . If your mailbox is approaching the storage limit for your Service, it will be noted visually on your web mail. EarthLink also will send email notices to this mailbox stating you are approaching your email storage limit. When your mailbox exceeds the allotted email storage space, you will receive a second email warning from EarthLink that your email storage is over quota and then EarthLink will stop transmitting email messages to your inbox. Any incoming emails will be bounced with an error message to the sender stating that your mailbox is full. After you delete some email messages to free up some space, new messages will be accepted again. You may purchase additional storage up to a fixed limit as described at https://myaccount.earthlink.net or https://myacount.peoplepc.com .
Certain billing plans may offer the ability to create your personal webspace. The maximum webspace available for such use is 10MB per 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.
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. Please check your bill plan details for more information.
10. CANCELLATION AND TERMINATION
You may cancel your Service only as follows:
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 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 Service 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, (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. 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 account is cancelled by EarthLink due to non-payment and then your Service is reactivated at a later date, EarthLink will bill you an account reactivation fee.
If your Service is canceled by you or by EarthLink prior to the end of the fixed period in your billing plan and your billing plan includes an early termination fee, EarthLink will 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, without further notice to you, your Service will be terminated and you will no longer have Internet access which includes access to your email, files or other information on EarthLink's servers.
If you move your 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, EarthLink will bill you a re-provisioning fee because this change requires a new installation. If EarthLink cannot provide the DSL Service in your new location or on your new telephone line, you will be charged the early termination fee.
11. USE OF THE SERVICE
EarthLink may take any legal and technical remedies to enforce or prevent the violation of this Agreement or any other EarthLink agreement or policy including the EarthLink Acceptable Use Policy .
12. MONITORING THE SERVICE
EarthLink will use commercially reasonable efforts to schedule any maintenance outages in a way that minimizes the impact on subscribers; however, EarthLink cannot guarantee that your Service will not be interrupted and cannot always provide advance notice of such outages.
13. DISCLAIMERS AND LIMITATIONs OF LIABILITY
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, PRODUCT, EQUIPMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EARTHLINK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND VENDORS (COLLECTIVELY "EARTHLINK PARTIES") WILL HAVE NOT LIABILITY FOR ANY CLAIMS, LOSSES, ACTIONS, SUITS, COSTS OR DAMAGES, INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, IN CONNECTION WITH THE SERVICE, OR THE EARTHLINK MODEM DIRECTLY OR INDIRECTLY, INCLUDING ARISING FROM: (I) SERVICE AVAILABILITY OR QUALITY, REGARDLESS OF THE CAUSES OF THE PROBLEMS; (II) OTHER USERS ACCESSING YOUR DEVICE; (III) THE INSTALLATION OF THE EARTHLINK MODEM BY YOU OR BY A THIRD PARTY; (IV) VARIATIONS IN THE SPEED OR BANDWIDTH AVAILABILITY OF YOUR DEVICE; (V) SECURITY BREACHES; (VI) EAVESDROPPING; (VII) INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (VIII) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE), DELETION OF FILES, ERRORS, OR DEFECTS; (iX) DELAYS OR ERRORS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE OF THE SERVICE; (X) YOUR RELIANCE ON OR USE OF THE SERVICE; (XI) THE USE OF THE SERVICE BY YOU OR A THIRD PARTY THAT INFRINGES A THIRD PARTY'S COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET , CONFIDENTIALITY, PRIVACY, OTHER INTELLECTUAL PROPERTY, PROPRIETARY, OR CONTRACTUAL RIGHTS; OR (XII) THE ACCURACY, COMPLETENESS, AND USEFULNESS OF ANY THIRD PARTY PRODUCTS, SERVICES OR INFORMATION OR THE MERCHANTABILITY OF SUCH ITEMS (INCLUDING ANY SUCH ITEMS OFFERED THROUGH CO-BRANDED WEB SITES LINKED FROM THE EARTHLINK WEB SITES).
THE 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 MODEM 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).
In addition, if you are not the owner of the premises where you are going to install the EarthLink Modem, you warrant that you have obtained the consent of the owner for EarthLink or vendor personnel and/or 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 in connection with the installation of the EarthLink Modem.
15. ELECTRONIC COMMUNICATIONS AND CELL PHONE CALLING
You consent to receive notices, documents, disclosures and other communications 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 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 electronic Communications provided or business transacted between EarthLink and you prior to the time you withdraw your consent.
In addition, you hereby agree that your acceptance of this Agreement constitutes your written consent: (i) to EarthLink calling you at the phone number that you provided EarthLink in connection with your subscription to or use of the Service, and (ii) if you provided EarthLink with a mobile or cellular phone number, to EarthLink also texting you at such mobile or cellular phone number in connection with your subscription to or use of the Service. Consent to receiving autodialed marketing telephone calls and/or marketing texts from EarthLink is not required to purchase products or services from EarthLink. You may exercise your option not to receive any marketing communications from EarthLink (i) by going directly to https://myaccount.earthlink.net/cam/contactinfo.jsp or calling EarthLink Customer Service in connection with your EarthLink Service or (ii) by going directly to https://myaccount.peoplepc.com/cam/contactinfo.jsp or by calling PeoplePC Customer Service.
16. CUSTOMER AND TECHNICAL SUPPORT
For online customer support for your Service, including troubleshooting email, certain connection issues, billing issues, setting up your email, and online account maintenance, go to http://support.earthlink.net/ for the EarthLink Services or http://psc.peoplepc.com/ for the PeoplePC Services.
To contact EarthLink Customer Service via telephone or live chat, go to http://www.earthlink.net/about/contact/ for the EarthLink Services and http://psc.peoplepc.com/contact/contact.php for the PeoplePC Services.
EarthLink may provide technical support for certain computer software configurations and browser setups for problems connecting to the Internet through laptops, notebooks and tablets, but not for smart phones. However, EarthLink may refer you to the manufacturer of any hardware or software for technical support.
17. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
18. 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.
18.2 Agreement to Arbitrate
EarthLink and you agree to resolve all disputes and claims between us through binding arbitration by the American Arbitration Association ("AAA"). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- Claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
- Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- Claims that may arise after the termination of this Agreement.
References to "EarthLink," "you," and "us" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the 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.
18.3 Informal Dispute Resolution Prior to Arbitration
18.3(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, Inc., 1375 Peachtree Street, N.E., Atlanta, Georgia 30308 ("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.
18.3(2) Settlement Proposals
The amount of any settlement offer made by EarthLink or you shall 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.
18.3(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.
18.4 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, 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.)
18.5 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 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 thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the AAA. The AAA will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party's notice of appeal. The decision of the three-arbitrator panel shall 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.
18.7 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.
18.8 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 (the "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 (the "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 18.8 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.
18.9 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 shall be null and void and all disputes shall be heard by a court.
18.10 Changes to Agreement to Arbitrate
If you were a subscriber to the Service before November 27, 2013, you have the right to reject the changes to this Section 18 set forth in this Version November 27, 2013 by sending us written notice of such rejection to our Notice Address postmarked on or before January 31, 2014. By rejecting these changes, you are agreeing that you will arbitrate any dispute between us in accordance with the language in Section 18 of Version August 1, 2013. 2
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 18 of this Version November 27, 2013.
18.11 Notice to California Residents
California residents are entitled to the following information:
The Service is provided by EarthLink, Inc., 1375 Peachtree Street, 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 18 will survive the termination of your Service with EarthLink.
19. 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 18; 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: November 27, 2013
The following endnotes summarize the material revisions made in this November 27, 2013 version of this Agreement compared to the previous version of this Agreement dated August 1, 2013.
1The second sentence in the fourth paragraph in Section 8 was added to facilitate access to the Recurring Automatic Bank Draft Authorization Agreement for those who use the ACH Debit method of payment.
2Section 18 was revised to clarify the arbitration procedures. Section 18 of Version August 1, 2013 included the following language:
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 Internet field 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 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.