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 EARTLINK EARTHLINK ONLINE BACKUP SOFTWARE AND SERVICE ("SERVICE").
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 begins when you sign up for the Service. This Agreement terminates or expires upon the termination of your account for the Service. Sections 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 17 of this Agreement will survive termination or expiration of this Agreement.
2. REGISTRATION INFORMATION
To order and receive the Service, you acknowledge that you are 18 years of age or older, and you have legal authority to enter into this Agreement. You must provide EarthLink with a valid credit card, debit card or other EarthLink approved payment method for the Service. You represent that all information you provided during the registration process is accurate and complete and that you will update such information with EarthLink should it change.
3. 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 reserves the right to change 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. BILLING AND FEES
You agree to pay the monthly fees in your billing plan for the Service ("Fees") and to pay any applicable taxes. EarthLink reserves the right to change the monthly fees of your billing plan upon 30 days prior notice to your EarthLink or PeoplePC contact email address on file prior to the effective date of such new monthly fee. All payments must be made in US dollars.
All charges are considered valid unless disputed in writing within 30 days of the billing date and mailed to:
1375 Peachtree Street
Atlanta, Georgia 30309
Adjustments will not be made for charges that are disputed more than 30 days after the billing date.
Charges may be billed on or after your billing cycle date to your method of payment on file each month for the Service including any additional taxes and fees. EarthLink is not responsible for any charges or resulting from charges billed by EarthLink including, but not limited to, overdrawn accounts or exceeding credit card limits. EarthLink may use various means to recover monies due. If EarthLink uses a collection agency or uses legal action to recover monies due, you agree to pay all fees arising from or relating to the recovery of such monies, including attorneys' fees.
If you provided EarthLink with a valid credit card or debit card, you agree to maintain valid and current credit card or debit card information on file with EarthLink at all times. You acknowledge and agree that you authorize EarthLink and that EarthLink does not need to obtain any additional authorization from you for any recurring payments or automatic billing options. In addition, if your credit or debit card company provides updated credit card or debit card information to EarthLink, you acknowledge that EarthLink does not need to obtain authorization from you for EarthLink to use such information to update your credit card or debit card on file.
If payment by check has been accepted by EarthLink, then payments by check must be received by EarthLink by the due date listed in your monthly invoice. When you pay your fees by check, you authorize EarthLink to electronically process your payment. If your check is processed electronically, your checking account may be debited on the same day as EarthLink receives your check and neither your check nor a copy of your check will be included with your checking account statement. EarthLink will charge a fee for returned checks or returned bank drafts from your financial institution.
Your account for the Service will be considered delinquent if your credit card company or debit card company refuses for any reason to pay the amount billed to it and that amount remains unpaid at the beginning of the next accounting cycle. The Service may be suspended, archived or purged from the system if your account for the Service is delinquent for more than one billing cycle. Your Service will be automatically inactivated if you put a stop payment on your account with your financial institution in connection with payment of your monthly bill. EarthLink may impose a charge to restore archived data from delinquent accounts.
Payment by fraudulent means will result in immediate and permanent termination of your Service and possible criminal penalties.
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:EarthLink, Inc.
Cancel the 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 your proof of cancellation of your Service. 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 at any time for any reason, including, without limitation, if your account for the Service is delinquent because charges on your method of payment were refused for any reason, you failed to make payment when due or you did not provide EarthLink with a new charge card, or debit card expiration date or expiration date of any other method of payment before the existing date expired or if EarthLink reasonably believes that your use of the Service is prohibited by any applicable federal, state or local laws. EarthLink may terminate this Agreement immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Termination notice will be sent to you via (i) your EarthLink or PeoplePC contact email address on file or (ii) U.S. Mail to the mailing address on file with EarthLink or PeoplePC.
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 of cancellation.
10. WARRANTY DISCLAIMER
YOU ACKNOWLEDGE THAT THE SERVICE IS PROVIDED "ON AN AS IS" AND "AS AVAILABLE" BASIS. EARTHLINK AND ITS PROVIDERS DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. EARTHLINK AND ITS PROVIDERS MAKE NO EXPRESS WARRANTIES AND WAIVE ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY EARTHLINK OR ITS PROVIDERS WILL CREATE A WARRANTY.
EARTHLINK, ITS PROVIDERS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND VENDORS (COLLECTIVELY, "EARTHLINK PARTIES") WILL HAVE NO LIABILITY FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SERVICE OR THE INTERNET, INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. IN ANY EVENT, THE CUMULATIVE LIABILITY OF ANY EARTHLINK PARTY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEEDING TO THE ACT OF INJURY THAT GAVE RISE TO THE LIABILITY A CLAIM WHETHER OR NOT FORESEEABLE AND EVEN IF THE EARTHLINK PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE EARTHLINK PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM: OTHER USERS ACCESSING YOUR COMPUTER; SECURITY BREACHES; EAVESDROPPING; DENIAL OF SERVICE ATTACKS; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; YOUR RELIANCE ON OR USE OF THE SERVICE; INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS REGARDLESS OF WHETHER YOUR DATA ARE MAINTAINED ON EARTHLINK'S SERVERS OR THE PROVIDER'S SERVERS; DELAYS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS; THE USE OF THE SERVICE BY YOU OR A THIRD PARTY THAT INFRINGES THE COPYRIGHT, PATENT, TRADEMARK,TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INTELLECTUAL PROPERTY RIGHTS, PROPRIETARY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY.
THE FOREGOING LIMITATIONS APPLY TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF THE EARTHLINK PARTIES WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO THE CAUSE OF ACTION AGAINST ANY EARTHLINK PARTY IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE. YOUR EXCLUSIVE AND ONLY REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET FORTH THIS AGREEMENT. ANY WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE OTHER RIGHTS UNDER CERTAIN LAWS IN CERTAIN STATES WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.
You agree to defend, indemnify and hold the EarthLink Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages including, but not limited to, direct, indirect and consequential, attorney's fees and expenses that an EarthLink Party may sustain or incur by reason of your use of the Service or the use of the Service by anyone else through your account for the Service including, use of the Service (i) in violation of applicable laws or regulations or the terms of this Agreement, or any other EarthLink agreement or policy; (ii) to transmit any messages, content, images or other information via the Internet; (iii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with such use; or (iv) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible property (including data). If you violate the restrictions of this Agreement, you agree to defend and indemnify EarthLink and its providers against any claim or action that arises from your unlawful or improper use of the Service.
12. ELECTRONIC COMMUNICATIONS
You consent to receive notices, documents, disclosures and other communications from EarthLink ("Communications") in an electronic format to your EarthLink or PeoplePC contact email address on file, and agree that the Communications provided to you by EarthLink electronically satisfy any legal requirement that such communications would satisfy if they were in a writing. Your consent to receive Communications from EarthLink electronically to your EarthLink or PeoplePC contact email address on file and EarthLink's agreement to do so applies to all of your transactions and interactions with EarthLink. If you do not want to consent to receive Communications from EarthLink electronically or if you withdraw such consent, then you must stop using the Service. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between EarthLink and you prior to the time you withdraw your consent.
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
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be settled by arbitration, and administered by the American Arbitration Association under its Commercial Arbitration Rules. Any such arbitration will be governed by Georgia law. The arbitrator will be an expert in the field of Internet services and will be bound by the terms of this Agreement. The arbitrator's award will be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
ANY CUSTOMER SEEKING ARBITRATION PURSUANT TO THIS AGREEMENT WILL PURSUE SUCH ARBITRATION ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS ACTION OR REPRESENTATIVE BASIS PURSUANT TO THIS AGREEMENT.
California residents are entitled to the following information:
The Service is provided by EarthLink, Inc., 1375 Peachtree Street, Atlanta, Georgia 30309. Charges vary depending on the type of Service. EarthLink reserves the right to change fees and institute new fees at any time upon 30 days prior notice as further described in Section 13 above.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814 or by telephone at (916) 445-1254.
Actions arising from this Agreement may be brought in an appropriate California small claims court.
16. REVISIONS TO THE AGREEMENT
EarthLink may revise, amend, or modify this Agreement at any time by posting the revised version on the EarthLink Web Site and the PeoplePC Web Site. The revised version will be effective on the date that it is posted as stated at the end of the revised version. The material changes to the Agreement will be noted in endnotes of the revised version. Your continued use of the Service after the date of the revised version constitutes your acceptance of all of the revisions. If you do not agree to the revisions in the revised version, your sole and exclusive remedy will be to terminate your account and use of the Service.
You may not assign your rights or delegate any of your duties under this Agreement without the prior written consent of EarthLink, and any attempted assignment or delegation without such consent will be void. If one or more provisions of this Agreement will be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration provision in Section 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 will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of EarthLink as reflected in the original provision. Nothing in this Agreement or in the understanding of the parties confers upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. EarthLink may subcontract any work, obligations or other performance required of EarthLink under this Agreement without your consent. EarthLink will not be liable for delays, damages or failures in performance because of causes beyond its reasonable control, including, but not limited to, acts of a government in its sovereign capacity, acts of war, terrorism, acts of a public enemy, fires, earthquakes, acts of God, labor disputes, strikes, work slow-downs or other labor-related activity.