READ THIS DIAL-UP SERVICE AGREEMENT CAREFULLY BEFORE USING THE EARTHLINK DIAL-UP SERVICE OR THE PEOPLEPC DIAL-UP SERVICE.
THIS DIAL-UP SERVICE 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 Dial-Up Service Agreement ("Agreement") is between EarthLink, LLC and its related entities ("EarthLink") and applies to our use of the EarthLink Dial-Up service, the PeoplePC Dial-Up service, and the EarthLink and PeoplePC software and tools including those described at http://www.earthlink.net/software/ (collectively referred to as "Service") except for EarthLink Home Networking and EarthLink Online Backup which have their own Service Agreements.
By establishing an account for the Service or using the Service, you agree to be bound by this Agreement and to use the Service in compliance with the terms of this Agreement and all applicable federal, state and local laws, rules and regulations.
2. TERM OF THIS AGREEMENT
The effective date of this Agreement is the date on which you subscribed to the Service. This Agreement continues until the date of termination of your Service. Sections 10, 13, 14, 15, 17, 18, and 20 of this Agreement will survive the termination of this Agreement.
3. SUBSCRIPTION INFORMATION
To order and receive the Service, you acknowledge that you are 18 years of age or older, and you have legal authority to enter into this Agreement. You must provide EarthLink with (i) a valid credit or debit card or other EarthLink approved payment method for the Service; (ii) your billing address; and (iii) your shipping address, if different from your billing address, for shipping the EarthLink Dial-Up modem ("EarthLink Dial-Up 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. EarthLink will send you a welcome email as written confirmation of your order. 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 registration, you will receive a username, a password, and other account information. You are responsible for (i) maintaining the confidentiality of both 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 Service and other breaches of security. 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 the device (such as a desktop, laptop, notebook, tablet or smart phone) ("Device") and any software on your Device necessary to use the Service, including responsibility for (i) maintaining the security of the Device and data including protection of your username and password, (ii) the encryption of data, (iii) back-up of your Device and data, and (iv) any WI-FI network you use in connection with the Service. 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 SERVICE
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 of the Services may only work using certain telephone carriers or non-PBX (including rollover/party line) phone systems. Some of the 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 the Service to everyone. In its sole discretion, EarthLink may cancel the Service and refund any money that you have paid. EarthLink will notify you of its intent to cancel as soon as reasonably possible.
Depending on the billing plan for your EarthLink Dial-Up Service or PeoplePC Dial-Up Service (collectively, "Dial-Up Service") you may have a limit to the number of hours of connection to the Internet per 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 account for the Dial-Up Service 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 AND THE EARTHLINK DIAL-UP MODEM
EarthLink will ship a welcome kit that will include software ("EarthLink Access Software") that you may use to access the Dial-Up 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 for the EarthLink Services or www.peoplepc.com for the PeoplePC Services.
In addition to the EarthLink Access Software, the Dial-Up Service requires a modem to access the Internet. 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 recommends the EarthLink Dial-Up Modem to ensure ongoing technical support.
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"). This warranty applies to the original subscriber and is not transferable.
The warranty for the EarthLink Dial-Up Modem includes the following:
The replacement EarthLink Dial-Up Modem will be either a new or a fully inspected and tested refurbished unit.
This warranties for the EarthLink Dial-Up 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 Dial-Up Modem, you can contact EarthLink Technical Support for assistance.
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. BILLING AND PAYMENT
If your billing plan is based on a monthly subscription fee, you agree to pay the recurring monthly fee in your billing plan due in advance of the month incurred. 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; (ii) shipping and handling fees, if applicable; and (iii) the method of payment fees, if applicable. 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.
You must provide accurate billing information including legal name, address, telephone number, and credit or debit card number and expiration date and report all changes to this information promptly to EarthLink.
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. usage, 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 Agreement. You acknowledge and agree that you authorize EarthLink and that EarthLink does not need to obtain any additional authorization from you for any recurring payments or automatic billing options. In addition, if your credit or debit card company provides updated credit or debit card information to EarthLink, you acknowledge that EarthLink does not need to obtain authorization from you for EarthLink to use such information to update your credit or debit card.
If payment by check has been accepted by EarthLink, then payments by check must be received by EarthLink by the due date listed in your monthly paper invoice. EarthLink will charge a processing fee each time you pay your monthly billing invoice. When you pay your fees by check, you also authorize EarthLink to electronically process your payment. If your check is processed electronically, your checking account may be debited on the same day that EarthLink receives your check and neither your check nor a copy of your check will be included with your checking account statement.
EarthLink will charge a fee for returned checks or returned bank drafts from your financial institution.
EarthLink will email an e-invoice to your primary EarthLink 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 through https://myaccount.earthlink.net/cam/billing_info.jsp or by calling EarthLink Customer Service that EarthLink mail a paper invoice to your billing mailing address each month. EarthLink will charge your account a fee for each paper invoice. If you elect to have EarthLink mail you your monthly invoice, you may request that EarthLink also email your monthly invoice your Contact Email Address or if you designated a different billing email address, to such billing email address. There is no charge for e-invoices.
Your account will be automatically inactivated if you put a stop payment on your account with your financial institution in connection with the payment of your monthly bill.
All charges are considered valid unless disputed in writing within 30 days of the billing date and mailed to:
1170 Peachtree Street, Suite 900
Atlanta, Georgia 30309
Adjustments will not be made for charges that are disputed more than 30 days after the billing date.
EarthLink reserves the right (i) to change the fees associated with your Service and institute new fees (e.g. equipment fees) upon email notice at least 30 days prior to the effective date of such new fee to your Contact Email Address and (ii) to change the 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 retains a collection agency or takes legal action to collect monies due on your account, you agree to pay all costs and expenses of collection incurred by EarthLink, which may include reasonable attorney's fees and collection agency fees which may be based on a percentage of the amount owed, up to a maximum of 25%, where permitted by applicable law.
9. BILLING PLAN FEATURES (INCLUDING EMAIL STORAGE AND WEBSPACE)
The billing plans for some of the 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 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.
You may cancel your Service only as follows:
Telephone Cancellation for EarthLink Services: toll free number at 1-888-327-8454
Telephone Cancellation for PeoplePC Services: toll free number at 1-866-772-6277
Fax Cancellation for both EarthLink Services and PeoplePC Services: Please include your account number and current telephone number and fax to 404-795-1034.
Mail Cancellation for both EarthLink Services and PeoplePC Services: Send registered or certified mail, return receipt requested to:
Cancel (write Name of Service)
1170 Peachtree Street, Suite 900
Atlanta, Georgia 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 account for the Service at any time for any reason, including, without limitation, if (i) your account is delinquent because charges on your method of payment were refused for any reason, (ii) you failed to make payment when due or you did not provide EarthLink with your credit or debit card's expiration date or expiration date of any other method of payment before the existing expiration date; (iii) EarthLink, in its sole discretion, believes you have breached this Agreement or any other EarthLink agreements or policies; or (iv) your use of the Service is prohibited by law . A termination notice will be sent to you via (i) your Contact Email Address or (ii) U.S. Mail to the billing address for your EarthLink account. If your account for the Dial-Up Service is cancelled by EarthLink due to non-payment and then it 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, at its discretion, if (i) EarthLink no longer provides the Service to your current location, (ii) you live in an area currently deemed a weather or war disaster area, or (iii) you were deployed for active military service. Your Service will close at the end of the current billing period in which notice of cancellation is received or in which EarthLink canceled your Service.
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.
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 Windstream 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. GENERAL DISCLAIMERS AND WARRANTIES
THE SERVICE AND THE EARTHLINK DIAL-UP MODEM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EARTHLINK AND ITS SUPPLIERS AND VENDORS DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EARTHLINK AND ITS SUPPLIERS AND VENDORS MAKE NO EXPRESS WARRANTIES REGARDING THE SERVICE AND THE EARTHLINK DIAL-UP MODEM AND WAIVE ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EARTHLINK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND VENDORS (COLLECTIVELY "EARTHLINK PARTIES") WILL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS IN CONNECTION WITH THE SERVICE AND THE EARTHLINK DIAL-UP MODEM RESULTING FROM: (I) AVAILABILITY OR QUALITY WITHIN THE COVERAGE AREA REGARDLESS OF THE CAUSE(S) OF THE PROBLEM; (II) OTHER USERS ACCESSING YOUR DEVICE; (III) VARIATIONS IN THE SPEED OR BANDWIDTH AVAILABILITY TO EACH DEVICE CONNECTED TO THE EARTHLINK NETWORK; (IV) SECURITY BREACHES; (V) EAVESDROPPING; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (VI) YOUR RELIANCE ON OR USE OF THE SERVICE; (VII) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE), DELETION OF FILES, ERRORS, OR DEFECTS REGARDLESS OF WHETHER YOUR DATA IS MAINTAINED ON THE EARTHLINK SERVERS OR YOUR DEVICE(S); (VIII) DELAYS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE OF THE SERVICE; (IX) 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 (X) 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 EARTHLINK PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR (I) YOUR FAILURE TO PROPERLY INSTALL, USE OR OPERATE THE EARTHLINK DIAL-UP MODEM OR (II) ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY OF YOUR DEVICES, SOFTWARE, FILES, DATA, PERIPHERALS OR PROPERTY DUE TO YOUR INSTALLATION, ATTEMPTED INSTALLATION, USE, REPAIR OR REMOVAL OF THE EARTHLINK DIAL-UP MODEM.
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 DIAL-UP 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).
15. ELECTRONIC COMMUNICATIONS AND PHONE COMMUNICATIONS
15.1 Electronic Communications
You consent to receive notices, documents, disclosures and other communications about your account or EarthLink Service from EarthLink ("Communications") in an electronic format to your Contact Email Address and agree that the Communications provided to you by EarthLink electronically will be deemed a writing. If you do not want to receive Communications from EarthLink electronically or if you withdraw your consent to receive such Communications electronically, then you must stop using the Service. The withdrawal of your consent will not affect the legal validity and enforceability of any electronic Communications provided or business transacted between EarthLink and you prior to the time you withdraw your consent.
15 . 2 Phone Calling and Texting
In addition, you hereby agree that your use of the Service constitutes your express written consent to receive automated and manually dialed calls, text messages and pre-recorded messages at the phone number(s) that you provide EarthLink in connection with your subscription to or use of the Service. Consent to receiving autodialed calls, text messages, and/or pre-recorded messages from EarthLink is not required to purchase products or services from EarthLink.
15.3 Changing Your Contact Preferences
You may exercise your option not to receive any marketing communications from and/or automated or manually dialed calls, text messages and pre-recorded messages from EarthLink (i) for EarthLink Services, by going directly to https://myaccount.earthlink.net/cam/contactinfo.jsp or calling EarthLink customer service, or (ii) for the PeoplePC DSL Service, by going directly to https://myaccount.peoplepc.com/cam/contactinfo.jsp or calling PeoplePC customer service. You also may text STOP in response to any text message from EarthLink to stop receiving text messages from EarthLink.1
16. CUSTOMER SERVICE 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 https://support.peoplepc.com/ for the PeoplePC Services. For specific billing questions, you also can login to myaccount at https://myaccount.earthlink.net/cam/whlogin.jsp.
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:
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 Service 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, LLC, 1170 Peachtree Street, Suite 900, Atlanta, Georgia 30309 ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). A Notice to you will be addressed to the billing address that EarthLink has on file for you.
18.3(2) Settlement Proposals
The amount of any settlement offer made by EarthLink or you will not be disclosed to the arbitrator in any arbitration between us until after the arbitrator determines the amount, if any, to which you or EarthLink is entitled.
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, https://www.adr.org. If EarthLink receives notice at the Notice Address that you have commenced arbitration and paid the filing fee to the AAA, it will promptly reimburse you for your payment of the filing fee by check to your address or by credit to your account unless your claim is for greater than $75,000. (The filing fee currently is $200 for claims under $10,000 but is subject to change by the arbitration provider. If you are unable to pay this fee, EarthLink will pay it directly upon receiving a written request from you to the Notice Address.)
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 https://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 will be final and binding, except for any appellate right which exists under the FAA. If an award issued by the arbitrator does not exceed $75,000, any appeal rights from the award will be governed by the FAA.
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 ("Alternative Payment"), whichever is greater, and pay your attorney, if any, the amount of attorney's fees incurred, and reimburse any expenses (including expert witness fees and costs) that your attorney, if any, reasonably accrues and documents with specificity for investigating, preparing, and pursuing your claim in arbitration ("Attorney Fee Award").
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the Alternative Payment and the Attorney Fee Award at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
The right to attorneys' fees and expenses discussed in this Section 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 will be null and void and all disputes will be heard by a court.
18.10 Future Changes to Agreement to Arbitrate
Notwithstanding any provision in this Agreement to the contrary, if EarthLink makes any future change to this arbitration provision (other than a change to the Notice Address) during the term of your subscription with EarthLink, you may reject any such change by sending us written notice to the Notice Address postmarked within 30 days of the date of the change. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language in this Section 18 of this Version dated September 15, 2016.
18.11 Notice to California Residents
California residents are entitled to the following information:
The Service is provided by EarthLink, LLC, 1170 Peachtree Street, Suite 900, Atlanta, Georgia 30309.
Charges may vary depending on the type of Service.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834 or by telephone at 1-800-952-5210.
This Section 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 which is also linked from www.peoplepc.com. 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: September 15, 2016
The following endnote summarize the material revision made in this September 15, 2016 version of this Agreement compared to the February 11, 2016 version of this Agreement.
1 Section 15 was updated.