EARTHLINK® ONLINE BACKUP TERMS OF SERVICE
READ THESE TERMS OF SERVICE AND LICENSE AGREEMENT FOR THE EARTHLINK ONLINE BACKUP SOFTWARE AND SERVICE ("AGREEMENT") BEFORE SUBSCRIBING TO THE EARTHLINK ONLINE BACKUP SOFTWARE AND SERVICE ("SERVICE").
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.
IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT OR YOU CANNOT COMPLY WITH THESE TERMS AND CONDITIONS, THEN YOU SHOULD NOT USE THE SERVICE, AND YOU SHOULD CLICK THE CANCEL BUTTON; THE REGISTRATION PROCESS WILL NOT CONTINUE AND YOU WILL STOP ALL USE OF THE SERVICE AND WILL HAVE NO AUTHORITY TO USE THE SERVICE.
IF YOU ARE DEEMED TO HAVE REGISTERED FOR THE SERVICE, EARTHLINK'S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON THE ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS.
IMPORTANT NOTE: The Service may be used to reproduce and store materials. It is licensed to you only for reproduction and storage of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. The Service may also be used for remote access to materials for usage between computers. Remote access of copyrighted material is only provided for lawful personal use or as otherwise legally permitted. If you are uncertain about your right to copy or permit access to any material you should contact your legal advisor.
1. 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 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 17 of this Agreement will survive termination of this Agreement.
2. 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 and (ii) your billing address. 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.
3. GENERAL DESCRIPTION OF THE SERVICE
Subject to EarthLink's acceptance of your subscription to the Service, and your compliance with the terms and conditions of this Agreement, EarthLink will provide you with software ("Software") that will automatically backup and store your data from your computer provided you successfully installed and configured the Software. EarthLink will allow you to retrieve your data files from the Service up to a maximum amount of data which can be downloaded from your account per each 24-hour period as determined by EarthLink ("Download Limit"). Your "Download Limit" is set by EarthLink, at its sole discretion, and is currently calculated by the number of bytes downloaded over the course of a 24-hour period according to the local time of EarthLink's servers or its providers' servers. EarthLink reserves the right to change the Download Limit calculation method without further notice. From time to time, EarthLink may offer promotions to increase your Download Limit. In the event that you desire or attempt to download more than your Download Limit through EarthLink's servers or its providers' servers, EarthLink reserves the right, but will have no obligation, to offer and, upon your acceptance, provide to you a higher Download Limit as part of the Service (or other EarthLink additional services and products that may be offered from time to time).
You represent that when you transmit, upload, post or submit any content, images or data using the Service you have the legal right to do so and that your use of such data or content does not violate any law (including copyright or trademark laws), any other third party rights, the EarthLink Acceptable Use Policy or the EarthLink Digital Millennium Copyright Act Policy . You are solely responsible for the content of all data you store or retrieve from, or attempt to store or retrieve from your Service account, and the Service in general, and for all transmission by you from and to your Service account. You agree that EarthLink has no responsibility for the accuracy, completeness, value or usefulness of any of your content. You agree to supervise and to accept sole responsibility and liability for any use of the Service by minors through your account. In addition, you will not download nor cause to be downloaded data in excess of your Download Limit.
You are responsible for obtaining and maintaining all computer hardware and communications equipment needed to access the Service, and for paying all third party access fees incurred while using the Service. You will use your EarthLink username and password to access the Service. 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.
EarthLink makes no guarantees as to the continuous availability of the Service or any specific feature(s) of the Service. 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.
You acknowledge that the Service may include information, communications, code, the Software, photos, text, video, graphics, sounds, images, logos and other material and services that are owned, provided and maintained by EarthLink or its providers ("EarthLink Content"). You agree and acknowledge that notwithstanding that EarthLink may permit access to and use of the EarthLink Content and that the EarthLink Content is protected by copyrights, trademarks and proprietary rights. You may not copy, reproduce, distribute, or create derivative works from, the Content, unless expressly authorized by EarthLink.
5. LEGAL COMPLIANCE
You are solely responsible for (i) obtaining sufficient rights to the content of all data and files stored by you on EarthLink's or its providers' servers and (ii) ensuring that such content does not violate the EarthLink Acceptable Use Policy or the EarthLink Digital Millennium Copyright Act Policy .
If you believe that, your copyright in any material, has been infringed by an EarthLink Online Backup account holder, please notify EarthLink as set forth in the EarthLink Digital Millennium Copyright Act Policy.
EarthLink will comply with its obligation to report evidence of child pornography offenses to the appropriate law enforcement authorities pursuant to the Protection of Children from Sexual Predators Act. Any such materials will be forwarded to the appropriate law enforcement authorities upon discovery and public access will be disabled.
6. PROTECTION OF FILES
You are solely responsible for protecting the information on your computer such as by installing anti-virus software, updating your applications, password protecting your files, and not permitting third party access to your computer. The Service may backup files that are no longer usable due to corruption from viruses, software malfunctions or other causes that may result in you restoring files that are no longer usable.
7. DELETION OF BACKUP DATA
The Software saves a copy of each file you designate to a server operated by EarthLink or its providers. The Software scans for changes or additions to these files and then periodically creates a copy of modified or newly designated file. You will not be able to restore files that EarthLink has not completed copying or files that have been changed but not yet been backed up or not eligible for backup.
If your account for the Service expires, is terminated, is not renewed, or is otherwise discontinued for any reason, EarthLink and its providers may, without notice, delete or deny you access to any of your backup data that may remain in their possession or control.
You agree that if you mark a file to no longer be backed up, delete a file from your computer, or terminate or allow your trial or license to terminate, non-renew, or otherwise lapse for any reason, that these files may not be available to you should you wish to restore them.
You agree that EarthLink and its providers may retain (but will have no obligation to retain) your backup data for a period after your trial or license has been terminated, expired, or otherwise lapsed, as part of EarthLink's marketing to you the opportunity to purchase, renew, or extend a license.
8. PROVISIONING, BILLING AND PAYMENT
You agree to pay the monthly fees in your billing plan for the Service ("Fees") and to pay any applicable taxes. All payments must be made in US dollars.
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 Agreement2. 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.
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.
EarthLink reserves the right to (i) change the fees associated with your Service or institute new fees upon email notice at least 30 days prior to the effective date of such new fee to your Contact Email Address and (ii) 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 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. CANCELLATION AND TERMINATION
You may cancel your Service only as follows:
Telephone Cancellation for EarthLink accounts: 1-888- 327-8454
Telephone Cancellation for PeoplePC accounts: 1-866-772-6277
Fax Cancellation for both EarthLink and PeoplePC accounts: 1-404-795-1034 include your account number and current telephone number.
Mail Cancellation for both EarthLink and PeoplePC accounts: Send registered or certified mail, return receipt requested to:
Cancel EarthLink Online Backup 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. 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; (ii) you failed to make payment when due or you did not provide EarthLink with the new expiration date of your payment method prior to the occurrence of the existing expiration date; (iii) EarthLink, in its sole discretion, believes you have breached this Agreement or any other EarthLink agreement or policy; 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 or PeoplePC account. If your Service account is terminated by EarthLink due to non-payment and then your Service is reactivated at a later date, EarthLink will bill you an account reactivation fee.
Upon expiration or termination, you will immediately cease all use of the Service and any documentation. Termination is not an exclusive remedy and all other remedies will be available whether or not the license is terminated.
If you cancel your account for the Service, you will be able to use the Service until the day before your next billing date unless you specified a closing date prior to the day before your next billing period. After such date, access to the Service will no longer be possible, any files you stored through the Service will be deleted and any unused storage remaining will be forfeited.
EarthLink does not offer refunds for unused time or storage. EarthLink does not grant refunds or credits for any prior use including partial use of the Service during the last month prior to cancellation.
10. WARRANTY DISCLAIMER
THE SERVICE IS PROVIDED "ON AN AS IS" AND "AS AVAILABLE" BASIS. EARTHLINK, ITS PROVIDERS AND SUPPLIERS DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. EARTHLINK, ITS PROVIDERS AND ITS SUPPLIERS 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.
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, 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) SECURITY BREACHES; (V) EAVESDROPPING; (VI) INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (VII) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE), DELETION OF FILES, ERRORS, OR DEFECTS; (VIII) DELAYS OR ERRORS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE OF THE SERVICE; (IX) YOUR RELIANCE ON OR USE OF THE SERVICE; OR (X) THE USE OF THE SERVICE BY YOU OR A THIRD PARTY THAT INFRINGES A THRID PARTY'S COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET , CONFIDENTIALITY, PRIVACY, OTHER INTELLECTUAL PROPERTY, PROPRIETARY, OR CONTRACTUAL RIGHTS.
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).
12. 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.
13. CUSTOMER SUPPORT
For online customer support in connection with billing issues, go to http://support.earthlink.net/ if you have an EarthLink account or go to http://psc.peoplepc.com/ if you have a PeoplePC account. To contact Customer Service about a billing issue via telephone or live chat, go to http://www.earthlink.net/about/contact/ if you have an EarthLink account or http://psc.peoplepc.com/contact/contact.php if you have a PeoplePC account.
EarthLink does not provide telephone technical support. For customer support in connection with the use of the Service other than billing issues, EarthLink will provide support services for the Service and associated software via e-mail. EarthLink does not have any obligation to provide hard-copy documentation, upgrades, enhancements, or modifications.
14. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
15. 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.
15.2 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 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.
15.3 Informal Dispute Resolution Prior to Arbitration
15.3(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 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.
15.3(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.
15.3(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.
15.4 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.)
15.5 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 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 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.
15.7 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.
15.8 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.
15.9 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.
15.10 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 15 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 15 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 15 of this Version November 27, 2013.
15.11 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 15 will survive the termination of your Service with EarthLink.
16. 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 15; 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 15 was revised to clarify the arbitration procedures. Section 15 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.