EARTHLINK TRUEVOICE® SERVICE AGREEMENT
READ THIS SERVICE AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE EARTHLINK TRUEVOICE SERVICE.
By establishing an account with EarthLink or using the Service, you agree to be bound by this Agreement and to use the Service in compliance with the terms of this Agreement and all applicable federal, state and local laws, rules and regulations. This Agreement governs both the Service and the analog telephone adapter or any other IP connection device (Device) used in conjunction with the Service.
2. TERM OF THIS AGREEMENT
The effective date of this Agreement begins on your account billing start date, as indicated on your first invoice. This Agreement terminates or expires upon the termination of your account. Sections 8, 10, 11, 12, 13, 14 and 15 of this Agreement will survive termination or expiration of this Agreement.
3. EMERGENCY SERVICES DIALING 911
The Service supports E911 access to emergency services however there are important differences from traditional 911 services. You must give EarthLink the physical location where you will be using the Service for E911 service to function properly. If you move the Device to a new location, you must register the new location with EarthLink for E911 service to function properly. You hereby acknowledge that registering your current physical location is your responsibility.
Your 911 Dialing feature may not be operational until you receive confirmation from EarthLink that E911 has been activated.
E911 will not function under any one of the following circumstances:
- Before the Service is activated by EarthLink and notice is sent.
- In the event of a power failure or disruption. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to utilizing the Service.
- Service outages or suspensions or terminations of service by your broadband provider or ISP.
- Service outages due to suspension or termination of your EarthLink True Voice Account.
- Your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service.
- Other Service Outages that occur for a variety of reasons.
- Changing your number or adding or porting new numbers to your account without successfully registering your location of use for each changed, newly added or newly ported phone number.
There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Service as compared to traditional 911 dialing over traditional public telephone networks.
4. 911 DISCLAIMER OF LIABILITY AND INDEMNIFICATION
EarthLink does not have any control over whether, or the manner in which, calls using EarthLink's 911 Dialing service are answered or addressed by any local emergency response center. EarthLink disclaims all responsibility for the conduct of local emergency response centers and the national emergency calling center. EarthLink disclaims any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither EarthLink nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to EarthLink's 911 Dialing service unless such claims or causes of action arose from EarthLink's gross negligence, recklessness or willful misconduct. You will defend, indemnify, and hold harmless EarthLink, its officers, directors, employees, subsidiaries, affiliates, suppliers and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel.
If you are not comfortable with the limitations of the 911 Dialing service, you should consider having an alternate means of accessing traditional 911 or E911 services or terminating the Service.
5. THE SERVICE
The current prices and features of the Service may be obtained by calling (888) 327-8454.
The Service will be used in a fixed location in certain areas of the United States. The Service is for residential use only. The Service should not be used as a mobile, business or international voice service. You will not resell or transfer the Service or the Device to another party without EarthLink's prior written consent. EarthLink reserves the right to immediately terminate or modify your Service if EarthLink determines, in its sole and absolute discretion, that your use of the Service or the Device is, or at any time was, inconsistent with normal fixed residential usage patterns. You will use the Service and the Device only for lawful purposes. From time to time EarthLink may impose reasonable rules and regulations regarding the use of the Service.
The Service quality can vary depending on location, line quality, inside wiring, Internet traffic, and other factors beyond the control of EarthLink. EarthLink does not guarantee call quality and your sole remedy is to cancel the Service.
The Service may not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911 which is provided for elsewhere in this Agreement) services in one or more (or all) service areas. The phone numbers you obtain from us will not be listed in any telephone directories. Phone numbers transferred from your local phone company may, however, be listed. As a result, someone with your phone number may not be able to utilize a reverse directory to lookup your address.
The Service may not be compatible with home security systems. You may be required to maintain a telephone connection through your local exchange carrier in order to use any alarm monitoring functions for any security system installed in your home or business. You are responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.
The Service may not be compatible with certain broadband services. EarthLink does not warrant that the Service will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
EarthLink reserves the right to change the fees for the Service at any time upon 30 days notice. 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.
In the event that the Device for the Service does not operate properly, contact EarthLink at (888) 327-8454. EarthLink will ship a new Device to you. EarthLink will only charge you for the shipping fees for the Device.
6. BILLING AND PAYMENT
You agree to pay the monthly fees in your billing plan and to pay (i) applicable taxes, surcharges, and fees required by any applicable government entity and (ii) other applicable fees and charges. Some Service plans may also include method of payment fees or shipping fee. All monthly fees for the Service will be due in advance of the month incurred. All payments will be made in US dollars. You must provide accurate billing information including legal name, address, telephone number, and credit card or debit card billing information, and report all changes to this information promptly to EarthLink.
EarthLink may not always give advance notice of changes to these items. Questions regarding charges to an account should be directed to EarthLink's Customer Service Department at (888) 327-8454. All charges are considered valid unless disputed in writing within 30 days of the billing date and mailed to:
1375 Peachtree Street
Atlanta, Georgia 30309
Adjustments will not be made for charges that are disputed more than 30 days after the billing date. Charges may be billed on or after your billing cycle date to your method of payment on file each month for the Service including any additional usage, services, taxes and fees. EarthLink is not responsible for any charges 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.i
EarthLink reserves the right to validate the payment method information you provided at registration and account updates including attempting up to a $1.00 authorization to your credit card or debit card which is not actually billed. 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.ii
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.
Your account will be automatically inactivated if you put a stop payment on your account with your financial institution in connection with payment of your monthly bill.
You can proactively cancel your Service by contacting EarthLink by phone, fax or U.S. Mail. You can specify the date you want your Service canceled.
Phone Cancellation: 1-888-327-8454
Fax Cancellation: 1- 404-795-1034. Please include your account number and a current phone number.
Mail Cancellation: Send registered or certified mail, return receipt requested to:
1375 Peachtree Street, Level A
Atlanta, GA 30309
EarthLink does not accept email cancellations.
In the event that you port out (transfer) your existing telephone number to another carrier and you do not contact EarthLink that you are cancelling your Service, EarthLink will use such port out date as the date of your cancellation of the Service.
By whichever method of cancellation you use, your account is set to close at the end of the current billing period. If you canceled your Service by contacting EarthLink by telephone, fax or mail, you will be issued a confirmation number as your only proof of cancellation. EarthLink does not grant refunds or credits for any prior use including partial use during the last month of cancellation. If you cancel by one of the prescribed methods 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. When canceling by telephone, you will be issued a confirmation number as your only proof of cancellation.
EarthLink may terminate your account at any time for any reason, including, without limitation, if (i) your account is delinquent because charges on your method of payment were refused for any reason, you failed to make payment when due or you did not provide EarthLink with a new charge card, or debit card expiration date or expiration date of any other method of payment before the existing date expired; (ii) EarthLink, in its sole discretion, believes you have breached this Agreement, other EarthLink agreements or other EarthLink policies; or (iii) your use of the Service is prohibited by law. Termination notice will be sent to you via (i) your EarthLink contact email address on file or (ii) U.S. Mail to your mailing address on file. Accounts are set to close at the end of the current billing period.
If you decide to reactivate your canceled account, EarthLink will bill you a reactivation fee.iii
8. NUMBER TRANSFER ON SERVICE TERMINATION
On the inactivation date of your Service, EarthLink may, in its sole and absolute discretion, release to your new service provider the telephone number that you ported (transferred or moved over) to EarthLink from your previous service provider and used in connection with your Service if:
such new service provider is able to accept such number;
your account has been properly terminated;
your account is completely current, including payment for all charges and applicable termination fees; and
you request the transfer upon terminating your account with EarthLink.
9. MONITORING THE SERVICE
10. DISCLAIMERS AND WARRANTIES
CERTAIN DEVICES MAY BE SUBJECT TO THIRD PARTY WARRANTIES, WHICH MAY BE PASSED THROUGH EARTHLINK TO YOU AT NO ADDITIONAL CHARGE. EARTHLINK WILL COMPLY WITH ALL REASONABLE REQUIREMENTS NECESSARY TO AFFECT THE PASS-THROUGH OF THE WARRANTY TO YOU. AT ITS SOLE OPTION WITHIN THE INITIAL TERM OF YOUR BILLING PLAN, EARTHLINK OR ITS AGENT MAY REPLACE A DEFECTIVE HARDWARE ON BEHALF OF THE MANUFACTURER, PROVIDED YOU FOLLOW ALL APPLICABLE PROCEDURES AND OBTAIN A RETURN MATERIALS AUTHORIZATION (RMA) NUMBER. THIS WARRANTY DOES NOT COVER DEFECTS RESULTING FROM ACTS OUTSIDE OF EARTHLINK'S CONTROL, USE CONTRARY TO SPECIFICATIONS OR INSTRUCTIONS, OR REPAIR OR MODIFICATION BY ANYONE OTHER THAN EARTHLINK OR ITS CONTRACTOR. EARTHLINK RESERVES THE RIGHT TO MODIFY THIS WARRANTY AT ANY TIME. EARTHLINK WILL NOT BE RESPONSIBLE FOR ANY DEVICE DAMAGED BY ANY NATURALLY OCCURRING EVENT SUCH AS LIGHTNING, FLOOD, OR EARTHQUAKE OR OTHER EVENTS OUT OF EARTHLINK'S CONTROL SUCH AS FIRE, POWER SURGES, TERRORISM OR THE OTHER ACTS OF THIRD PARTIES. YOU ACKNOWLEDGE THAT THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EARTHLINK AND ITS SUPPLIERS AND VENDORS DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS.
EARTHLINK AND ITS SUPPIERS AND VENDORS MAKE NO EXPRESS WARRANTIES AND WAIVE ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH EARTHLINK OR THE INTERNET GENERALLY. NO ADVICE OR INFORMATION GIVEN BY EARTHLINK, ITS SUPPLIERS OR VENDORS WILL CREATE A WARRANTY.
EARTHLINK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND VENDORS (COLLECTIVELY, "EARTHLINK PARTIES") WILL NOT BE LIABILE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SERVICE OR THE INTERNET INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. IN ANY EVENT, THE CUMULATIVE LIABILITY OF ANY EARTHLINK PARTY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM. EARTHLINK DOES NOT WARRANT OR GUARANTEE THAT THE SERVICE CAN BE PROVISIONED TO YOUR LOCATION EVEN IF EARTHLINK HAS ACCEPTED YOUR ORDER FOR THE SERVICE.
THE EARTHLINK PARTIES WILL HAVE NOT BE LIABILE 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 DEVICE OR THE SERVICE; INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSIONS, OR ANY FAILURE OF PERFORMANCE OF THE DEVICE OR THE SERVICE;THE USE OF THE DEVICE OR THE SERVICE BY YOU OR A THIRD PARTY THAT INFRINGES THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INDUSTRIAL OR INTELLECTUAL PROPERTY RIGHTS, PROPRIETARY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY; THE ACCURACY, COMPLETENESS, AND USEFULNESS OF THE SERVICES, PRODUCTS, AND OTHER INFORMATION; OR THE MERCHANTABILITY OF ANY MERCHANDISE OR OTHER ITEMS PROVIDED OR SOLD BY THIRD PARTY WEB SITES INCLUDING CO-BRANDED WEB STIES LINKED FROM THE EARTHLINK WEB SITE.
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. 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.
11. General INDEMNIFCIATION
You agree to defend, indemnify and hold the EarthLink Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages (including, but not limited to, direct, indirect and consequential), attorney's fees and expenses that an EarthLink Party may sustain or incur by reason of your use of the Service or the use of the Service by anyone else through your account including use of the Service (i) in violation of applicable laws, or regulations or the terms of this Agreement or any other EarthLink agreement or policy; (ii) to transmit any messages, content, images or other information via the Internet; (iii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with such use; or (iv) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible property (including data).
12. ELECTRONIC COMMUNICATIONS
You consent to receive notices, documents, disclosures and other communications from EarthLink (Communications) in an electronic format to your EarthLink 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 contact email address on file and EarthLinks 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 SERVICE AND TECHNICAL SUPPORT
For online customer support including troubleshooting email and connection issues, billing issues, setting up your email, and online account maintenance, go to http://support.earthlink.net/.
To contact Customer Service via telephone or live chat, go to http://www.earthlink.net/about/contact/. iv
Because of the wide range of hardware and software configurations and compatibility, it may not be possible for EarthLink to provide technical support for your current set of products. In certain circumstances, it may be necessary to refer you to the manufacturer of your hardware or a software vendor for technical support of their products.
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 12 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 AGREEMENT
EarthLink may revise, amend, or modify this Agreement at any time by posting the revised version on the EarthLink 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 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 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.
The following endnotes summarize the revisions made in this July 7, 2011 version of this Agreement compared to the previous version of this Agreement dated May 6, 2011.
i The last sentence is the third paragraph in Section 6 was added to explain that you are responsible for fees in connection with recovering monies due.
ii The last sentence is the third paragraph in Section 6 was added to explain that you are responsible for fees in connection with recovering monies due.
iii The last paragraph in Section 7 was added to clarify that you will be charged a reactivation fee if you reactivate your canceled account.
iv Section 13 was added to provide customer service and technical support information.