|
|
|
|
|
EARTHLINK TRUEVOICE® SERVICE AGREEMENT
READ THIS SERVICE AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE EARTHLINK TRUEVOICE SERVICE.
1. AGREEMENT
This Service Agreement ("Agreement") is between EarthLink, Inc. ("EarthLink") and you for EarthLink's trueVoice Service ("Service"). This Agreement consists of the terms and conditions below, the specific terms of your billing plan for the Service, and the EarthLink Privacy Policy and the EarthLink Acceptable Use Policy, which are found at www.earthlink.net/about/policies, all of which are incorporated herein.
By establishing an account with EarthLink, using the Service, using the equipment or indicating agreement through the EarthLink website you agree to be bound by this Agreement and to use the Service in compliance with the current EarthLink Acceptable Use Policy. This Agreement governs both the Service and any devices, such as an analog telephone adapter or any other IP connection device ("Device" or "Equipment"), used in conjunction with the Service. If you purchased Equipment from a retail store, dealer or another provider other than EarthLink, you are a "Retail Customer" for purposes of this Agreement.
2. 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:
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.
3. 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.
4. ACCOUNT REQUIREMENTS
In order to subscribe to and receive the Service, you must be at least 18 years old and may have to provide a valid credit card or debit card. The Service must be available to your location. The Service requires a separate active broadband service in order for the Service to work. You are responsible for charges for the Service regardless of the status of these separate services. Changing service providers may result in substantial interruption of the Service and may result in fees associated with cancellation and setting up a new account. Your computer may have to meet certain minimum requirements, which may be found on the EarthLink homepage at: www.earthlink.net.
5. THE SERVICE
The current prices and features of the Service may be obtained by visiting the EarthLink website www.earthlink.net or by calling (888) 327-8454. EarthLink reserves the right to change features of the Service at any time and prices of the Service upon 30 days notice.
The Service may be offered with a month to month plan or a fixed term plan. For month to month plans, you are purchasing the Service for full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you will be responsible for the full month's charges to the end of the then-current term, including, without limitation, unbilled charges, which will immediately become due and payable. You will also be responsible for the next full month's charges in the event that you do not provide the requisite ten-days notice of termination prior to the expiration of the then-current term. Expiration of the term or termination of Service will not excuse you from paying all accrued and unpaid charges due under this Agreement.
For fixed term plans (ie. 12 months) you are purchasing the Service for the full term, to be paid monthly. You will automatically convert to a month to month plan after the initial fixed term is over. Cancellation of the Service after the first 30 days but before the end of the fixed term may result in an early termination fee to cover hardware and/or other setup costs. Early cancellation may also result in the loss of rebates or other promotional consideration.
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.
6. PAYMENT
You will be charged a monthly service fee and applicable taxes and other fees. Some Service plans may also include charges for hardware, activation or early cancellation. EarthLink may offer, from time to time, certain promotions with different terms, activation fees, and monthly charges. 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.
You agree to pay all taxes, surcharges, and fees set by the government. EarthLink may not always give advance notice of changes to these items.
You are responsible for any charges to your account. 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. Adjustments will not be made for charges that are more than 30 days old.
Charges may be billed to your credit card or debit card each month for the Service and any additional usage, services, taxes and fees. If payment by check was approved by EarthLink, then payments be check must be received by EarthLink by the due date listed in your monthly invoice.
EarthLink is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by EarthLink.
If you provided EarthLink with a valid credit card or debit card, you agree to maintain 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, automatic billing options or updated credit card or debit card information provided by your credit card or debit card company to EarthLink. Your account will be automatically inactivated if you put a stop payment on your account with a financial institution in connection with payment of your monthly bill.
7. CANCELLATION
EarthLink only accepts cancellation by phone, fax or U.S. Mail. EarthLink does NOT accept cancellations by email. Accounts are set to close at the end of the current billing period. If you cancelled by telephone, 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 do cancel by one of the prescribed methods and are mistakenly billed again, EarthLink will refund any erroneous charges upon proof of cancellation.
Phone Cancellation: (888) EARTHLINK
Fax Cancellation: 404-795-1034. Please include your account number and a current phone number.
Mail Cancellation: Send registered or certified mail, return receipt requested to:EarthLink, Inc.
Cancel trueVoice
1375 Peachtree Street, Level A
Atlanta, GA 30309
EarthLink may terminate this Agreement, your account, or your use of the Service for any reason, including, without limitation, if EarthLink, in its sole discretion, believes you have violated the terms of this Agreement, violated the EarthLink Acceptable Use Policy or if you fail to pay any charges when due. Termination notice will be by email or U.S. Mail to the address you provided for the Service.
8. RETURN OF DEVICE
Retail Customers. A retail customer may only return the device to the retail store, dealer, or other provider from which the Retail Customer purchased the Device. All returns will be subject to the return policy of such retail store, dealer, or other provider. EarthLink will not accept any device returned to from a retail customer.
Non-Retail Customers. All equipment returns must have an EarthLink provided shipping label or they will be rejected. If you cancel your account and return all equipment within 30 days of your shipping date (the date EarthLink mails your equipment) in its original packaging (or equivalent) using an EarthLink supplied return shipping label, EarthLink will return any early termination fees.
EarthLink, in its discretion, may replace equipment due to manufacturer's defect at no cost to you under the following circumstances: You call the EarthLink Technical Support Department within one year of your original shipping date; The EarthLink Technical Support Department certifies that a defect has occurred and; You return the equipment in the original packaging (or equivalent) using an EarthLink provided shipping label within 30 days of certification. Upon certification, EarthLink will ship replacement equipment to you. Failure to return the certified equipment within 30 days of certification will result in a charge for the new equipment. EarthLink will not accept the return of equipment without EarthLink Technical Support Department certification and shipping label after 30 days from the original shipping date. EarthLink will not replace any equipment, including replacement equipment, after one year from your original shipping date.
9. NUMBER TRANSFER ON SERVICE TERMINATION
Upon the termination 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:
10. MONITORING THE SERVICE
EarthLink has no obligation to monitor the Service, but may do so if EarthLink, in its sole discretion, believes that to do so would be needed to: comply with laws, regulations, or governmental or legal requests; operate the technical aspects of the Service in a proper, effective, and reasonable manner; or protect itself, its employees, its customers or others as described in the EarthLink Privacy Policy. EarthLink would only disclose information to third parties regarding your use of the Service in a manner that is consistent with the EarthLink Privacy Policy. EarthLink may immediately remove your material or information from EarthLink's servers, in whole or in part, which EarthLink reasonably believes to infringe on another's property rights or to violate the EarthLink Acceptable Use Policy or other policies, laws or regulations.
11. DISCLAIMERS AND WARRANTIES
CERTAIN EQUIPMENT 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 EQUIPMENT 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. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EARTHLINK DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS.
EARTHLINK MAKES NO EXPRESS WARRANTIES AND WAIVES 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 OR ITS REPRESENTATIVES WILL CREATE A WARRANTY.
EARTHLINK, ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND CONTRACTORS (COLLECTIVELY, "EARTHLINK PARTIES") ARE NOT LIABLE 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 FOR ANY ANDALL 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. 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 EQUIPMENT OR THE SERVICE, OR THE MISTAKES, OMISSION, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSIONS, OR ANY FAILURE OF PERFORMANCE OF THE EQUIPMENT OR THE SERVICE;THE USE OF THE EQUIPMENT 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, AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE PROVIDED THROUGH THE SERVICE OR THE INTERNET. THE FOREGOING LIMITATION APPLIES 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 ONLY AND EXCLUSIVE REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET OUT IN THIS AGREEMENT. ANY WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS.YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
12. INDEMNIFCIATION
In addition to the indemnification provision in Section 3, you will defend, indemnify and hold the EarthLink Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages (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 in your household (i) in violation of applicable laws, regulations or the terms of this Agreement, (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 use of the Service, or (iv) in any manner that harms any person resulting in the personal injury or death of any person or in damage to or loss of any tangible or intangible (including data) property.
13. JURISDICTION
This Agreement is governed by Georgia law without regard to conflict of law provisions. 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 and will be held in Atlanta, Georgia. The arbitrator will be an expert in the field of Internet services. 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. There will be no class action arbitration pursuant to this Agreement.
California residents are entitled to the following information:
Actions arising from this Agreement may be brought in an appropriate California small claims court.
14. MISCELLANEOUS
EarthLink may revise, amend, or modify this Agreement at any time and in any manner. Notice of any revision, amendment, or modification will be posted on the EarthLink Web site at www.earthlink.net/about/policies and/or on your start pages and/or by email and/or in mailings to you. This Agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of EarthLink.
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. 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 construes 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.
Version: 03-05-2009
