EARTHLINK WEB HOSTING AND EARTHLINK DOMAIN NAME REGISTRATION SERVICE AGREEMENT
READ THIS SERVICE AGREEMENT CAREFULLY BEFORE USING THE EARTHLINK WEB HOSTING SERVICE, THE DOMAIN NAME REGISTRATION SERVICE OR THE WEBSITE DESIGN 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.
This Agreement is between EarthLink, Inc. ("EarthLink") and you and applies to EarthLink's provision of (i) the EarthLink Web Hosting Service that includes the Do-It-Yourself plan, (ii) the Domain Name Registration Service and (iii) the "Do-It-For-Me" professional website design plan ("Website Design Service"). The EarthLink Web Hosting Service, the Domain Name Registration Service and the Website Design Service will be collectively referred to herein as "Services" and each will be a "Service".
Sections 1-10 and Sections 14-19 in this Agreement apply to each of the Services. Section 11 of this Agreement sets forth the specific terms of the EarthLink Web Hosting Agreement and only applies if you signed up for the EarthLink Web Hosting Service. Section 12 sets forth the specific terms of the Domain Name Registration Service and only applies to you if you signed up for the Domain Name Registration Service. Section 13 sets forth the specific terms regarding the Website Design Service and only applies to you if you signed up for the Website Design Service.
By establishing an account for any of the Services or using any of the Services, you agree to be bound by this Agreement and to use the the Service(s) in compliance with the terms of this Agreement and all applicable federal, state and local laws, rules and regulations.
2. TERM OF THIS AGREEMENT
The effective date of this Agreement is the date on which you subscribed to the EarthLink Web Hosting Service, the Domain Name Registration Service and/or the Website Design Service. This Agreement continues until the later date of termination of your EarthLink Web Hosting Service, Domain Name Registration Service or Website Design Service. Sections 4, 5, 8, 9, 14, 16, 17 and 19 of this Agreement will survive termination of this Agreement.
3. SUBSCRIPTION INFORMATION
To order and receive any of the Services, you acknowledge that you are 18 years of age or older and either (i) you have legal authority to enter into this Agreement or (ii) represent a corporation, partnership or other legal entity duly formed (and incorporated where applicable) in good standing and you have the legal authority and power to enter into this Agreement on behalf of such entity. You must provide EarthLink with a valid credit card, debit card or other EarthLink approved payment methods for the Services and 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.
EarthLink will send you a welcome email as written confirmation of your order. EarthLink will charge fees according to the billing plan of the Package you selected. EarthLink may accept or reject any potential subscriber to the Services in its sole discretion.
4. BILLING AND PAYMENT
You agree to pay (i) the monthly fees in your billing plan due in advance of the month incurred or the one-time prepaid fee for the fixed period set forth in your prepaid billing plan, whichever is applicable; (ii) the set-up fees, if applicable; (iii) the method of payment fees, if applicable; and (iv) the charges for add-ons to the features included in your Package, if applicable. You will be responsible for paying all taxes, surcharges, and fees required by any applicable government entity including taxes in connection with any purchases made from your website. 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 number and expiration date and report all changes to this information promptly to EarthLink.
Charges may be billed on or after your billing cycle date to your method of payment on file each month for the Service including any additional charges incurred (e.g. usage, taxes and fees). EarthLink is not responsible for any fees resulting from charges billed by EarthLink including, but not limited to, overdrawn accounts or exceeding credit card limits. 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.
For monthly subscription billing plans, you will be able to use the Service for any consecutive monthly period that has been paid in advance as described in the acceptance materials that you received as part of you sales transaction or on your order confirmation. For example, if your billing cycle begins on the sixth day of the month, then your payment due date (i.e. the date that the amount of your full monthly Service fee, including any and all applicable taxes, must be received by EarthLink) will be on the fifth day of the next month and of each month thereafter.
Charges may be billed on or after your billing cycle date to your method of payment on file each month for the Service including any additional charges incurred (e.g. usage, taxes and fees). EarthLink is not responsible for any fees resulting from charges billed by EarthLink including, but not limited to, overdrawn accounts or exceeding credit card limits.
If you provided EarthLink with a valid credit or debit card, you agree to maintain valid and current credit or debit card information with EarthLink at all times. If you authorized EarthLink to automatically deduct (" ACH Debit ") your monthly Service fees and any other charges, fees, or taxes billed to you, from your checking or savings bank account, then you hereby reaffirm your agreement to the Recurring Automatic Bank Draft Authorization Agreement1. 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 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.
Delinquent accounts may be suspended or canceled at EarthLink's sole discretion; however charges will continue to accrue until the account is canceled. If you pay your monthly Service fee to a third party provider, your account also may be suspended for non-payment if your account is delinquent.
If you upgrade or downgrade to another Package, there will not be any cost for upgrading or downgrading except for the difference in the monthly fees for the upgraded or downgraded Package. Such upgrade or downgrade will take effect immediately and you will be automatically charged, via the payment method you provided, the fees based upon your upgraded or downgraded Package. In the event that you changed Packages during your monthly billing period, your payment method will be charged a pro-rata amount for the changed Package for such period as of the date of such change.
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.
If you have a prepaid billing plan, EarthLink will automatically renew your prepaid billing plan on the prepaid billing plan anniversary date unless your Service is canceled or you change to the monthly billing plan. If you have the monthly billing plan, EarthLink will charge you the monthly fee each month until your Service is canceled or you change to the prepaid billing plan.
All charges are considered valid unless disputed in writing within thirty (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 thirty (30) days after the billing date.
EarthLink reserves the right (i) to change the fees associated with your Service and institute new fees upon email notice at least 30 days prior to the effective date of such new monthly fee to your Contact Email Address and (ii) to change the fees associated with your account upon email notice at least 30 days prior to the effective date of such new fee to your Contact Email Address or your billing email address if different from your Contact Email address.
EarthLink may use various means to recover monies due. If EarthLink 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.
5. CANCELLATION AND TERMINATION
You may cancel your Service only as follows:
Telephone Cancellation: EarthLink toll-free number at 800-955-0186.
Fax Cancellation: Please include your account number and current telephone number and fax to 404-795-1034.
Mail Cancellation: Send registered or certified mail, return receipt requested to:
Cancel Web Hosting Service and/or Domain Name Registration Service
1375 Peachtree Street
Atlanta, GA 30309
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.
Within the first thirty (30) days, you may cancel the Web Hosting Service by notifying EarthLink as set forth below. In such case, you will receive a full refund of any amounts paid for the Web Hosting Service except for set-up fees for the Domain Name Registration Services, if applicable. After the initial thirty (30) day period, the EarthLink Web Hosting Service will be deemed accepted for all purposes, provided no written claim has been received by EarthLink within such thirty (30) day period. EarthLink does not grant refunds or credits for any prior use including partial use of the EarthLink Web Hosting Service during the last month of cancellation. EarthLink does not issue pro rata refunds for fees paid in advance.
The fees for the Domain Name Registration Service and the fees for the Website Design Service are nonrefundable.
If EarthLink waived the registration fee of your domain name and you cancel the EarthLink Web Hosting Service prior to the 90th day after your account billing start date or whichever date is set forth in your billing plan, then EarthLink has the right to charge you for such domain name registration fee. The fee for the Website Design Service is not refundable.
Upon any termination by you, EarthLink will permit you to download or otherwise copy electronic materials, data, and files comprising your website, as well as any emails residing on the servers until the end of the current billing cycle. However, you may request immediate removal of such information. EarthLink will try to satisfy your request but will not be under an obligation to do so. EarthLink will not be liable for such deleted electronic materials, data, and files. EarthLink reserves the right to retain certain technical information about your website such as logs and statistics for a period of time as needed for technical and legal reasons.
EarthLink may terminate your Service 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 your credit or debit card's expiration date or expiration date of any other method of payment before the existing expiration date; (iii) EarthLink, in its sole discretion, believes you have breached this Agreement or any other EarthLink agreements or policies; or (iv) your use of the Service is prohibited by law. Termination notice will be sent to you via (i) Contact Email Address or (ii) U.S. Mail to the billing address for your EarthLink account. Accounts are set to close at the end of the current billing period. Termination of the EarthLink Web Hosting Service will terminate the Domain Name Registration Service and the Website Design Service. Upon termination by EarthLink under its sole discretion, EarthLink may immediately remove your website, including all of your materials, data and files, from EarthLink's servers and you will have no right to copy or download such data or information; however, if your account was terminated by EarthLink due to nonpayment, your account will remain in inactive status for thirty (30) days and then your website will be removed.
Your canceled account cannot be reactivated.
6. YOUR ACCOUNT, PASSWORD, AND SECURITY
Upon registration, you will receive a username, password, and other account information. You are responsible for (i) maintaining the confidentiality of both your password and your account and (ii) all activities that occur under your password and your account. You must notify EarthLink immediately upon discovering any unauthorized uses of the account information or any other breaches of security. You will be responsible for use of the Services 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. Usernames, passwords, email addresses and Internet Protocol ("IP") addresses are EarthLink's property and EarthLink may alter or replace them at any time.
The EarthLink Parties, as defined in Section 8, will not be liable for any loss or damage from your failure to comply with these security obligations. You acknowledge and agree that under no circumstances will the EarthLink Parties be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.
You are solely responsible for the computer and software necessary to use the Services including responsibility for (i) maintaining the security of your computer and data, including protection of your username and password, (ii) the management of your information on your website including back up and restoration of your data, (iii) the encryption of data, and (iii) back-up and restoration of your computer and data. EarthLink recommends that you use anti-virus, anti-spyware and firewall software including appropriately updating such software.
7. MONITORING THE SERVICES
EarthLink will use commercially reasonable efforts to schedule any maintenance outages in a way that minimizes the impact on subscribers; however, EarthLink cannot guarantee that your Service will not be interrupted and cannot always provide advance notice of such outages.
8. DISCLAIMERS AND LIMITATIONS OF LIABILITY
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EARTHLINK AND ITS SUPPLIERS AND VENDORS DO NOT WARRANT THAT (I) THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS OR (II) THE ACCURACY, SPELLING OR GRAMMAR OF THE CONTENT ON YOUR WEBSITE. EARTHLINK AND ITS SUPPLIERS AND VENDORS MAKE NO EXPRESS WARRANTIES AND WAIVE ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, PRODUCT, EQUIPMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EARTHLINK, ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, RESELLERS, SUPPLIERS AND VENDORS (COLLECTIVELY "EARTHLINK PARTIES") WILL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, ACTIONS, SUITS, COSTS OR DAMAGES, INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, IN CONNECTION WITH THE SERVICES, DIRECTLY OR INDIRECTLY, INCLUDING ARISING FROM (I) CONTENT ON YOUR WEBSITE; (II) END USERS' USE OF YOUR WEBSITE; (III) OTHER PARTIES ACCESSING YOUR DEVICE; (IV) SECURITY BREACHES; (VI) EAVESDROPPING; DENIAL OF SERVICE ATTACKS; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (V) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE) OF THE EARTHLINK WEB HOSTING SERVICE; (VI) YOUR RELIANCE ON OR USE OR MISUSE OF THE SERVICE; (VII) THE MISTAKES, OMISSION, INTERRUPTIONS, DELETION OF FILES OR DATA (INCLUDING PERSONALLY-IDENTIFIABLE INFORMATION), ERRORS OR DEFECTS, DELAYS OR ERRORS IN OPERATION, TRANSMISSIONS, SERVICE INTERRUPTIONS, OR ANY FAILURE OF PERFORMANCE OF THE SERVICE; (VIII) INABILITY TO ACCESS THE SERVICE DUE TO CONNECTIONS, INTERNET ROUTING, FILTERING BY GOVERNMENT AGENCIES, HACKING, SPAMMING OR ANY OTHER CIRCUMSTANCE OUTSIDE THE CONTROL OF THE EARTHLINK PARTIES; OR (IX) THE USE OF THE SERVICE BY YOU OR A THIRD PARTY THAT INFRINGES A THIRD PARTY'S COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INTELLECTUAL PROPERTY RIGHTS, PROPRIETARY RIGHTS OR CONTRACTUAL RIGHTS. THE EARTHLINK PARTIES WILL NOT BE OBLIGATED TO COMPENSATE YOU FOR ANY DOWNTIME OF YOUR WEBSITE, WHETHER CAUSED BY YOU OR AN EARTHLINK 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 IN THIS AGREEMENT.
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.
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).
In addition, 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 in connection with the Content on Your Website that EarthLink did not explicitly provide to you as part of the EarthLink Digital Content service or the Website Design Service.
10. LICENSE AND USE OF THE SERVICES
The names of EarthLink, the Service and other EarthLink products and services, and their related logos, are trademarks of EarthLink ("EarthLink Marks"). For certain Packages, EarthLink adds "powered by EarthLink" on your web site. Otherwise, you agree not use any EarthLink Marks on your website or anywhere without the prior written permission of EarthLink.
During the term of this Agreement and upon payment of all fees due and owing to EarthLink, EarthLink hereby grants, and you hereby accept, a nontransferable, revocable, non-sublicensable, and non-exclusive license to use the following pursuant to the terms and conditions set forth herein (i) the Web Hosting Services' tools that you may select from the EarthLink Control Center ("Tools"), the EarthLink Digital Content, and "powered by EarthLink" for certain Packages in connection with the EarthLink Web Hosting Services, and (ii) the Website Design materials provided by the Website Design Service.
Any rights not expressly granted herein will be reserved for EarthLink and its licensors. The source code is specifically excluded from the license granted hereunder. EarthLink and its licensors will, at all times, retain ownership of all right, title and interest to any and all intellectual property rights in (i) the EarthLink Software, including all updates, improvements, modifications and enhancements; (ii) Tools; (iii) the EarthLink Digital Content; and (iv) the Website Design Service Materials.
Except for the licenses set forth in this Agreement, nothing in this Agreement grants to or confers in you any license or right of ownership in any of the foregoing. You will not reproduce, copy or publicly display, or permit anyone else to reproduce, copy or publicly display, any of the Tools, EarthLink Digital Content or Website Design Service Materials, if applicable, except pursuant to reasonable backup procedures, or for use in your website pursuant to this Agreement, nor create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering, decompiling or otherwise, the source programs or any part thereof from the object program or from other information (whether oral, written, tangible or intangible) made available to you under this Agreement. This license will automatically terminate upon the termination of this Agreement.
In addition, you are not permitted to (i) use the EarthLink Digital Content or the Website Design Service Materials in a web page design whereby the EarthLink Digital Content or the Website Design Service Materials is in a format designed or intended for storage or re-use by others; (ii) use or permit the use of the EarthLink Digital Content or the Website Design Service Materials or any part thereof as a trademark or service mark, or claim any proprietary rights of any sort in the EarthLink Digital Content or the Website Design Service Materials or any part thereof; (iii) use the EarthLink Digital Content or the Website Design Service Materials with images of identifiable individuals, products or entities in a manner that suggests their association with or endorsement of any product or service; (iv) translate, reverse engineer, decompile, or disassemble the EarthLink Digital Content or the Website Design Service Materials; or (vi) rent, lease, assign, transfer or redistribute the EarthLink Digital Content or the Website Design Service Materials or a copy thereof, to another person or legal entity.
Any supplemental software code and supporting materials provided to you as part of support services for the EarthLink Digital Content shall be considered part of the EarthLink Digital Content and are subject to the terms and conditions of this Agreement and any software code and supporting materials provided to you as part of support services for the Website Design Service Materials shall be considered part of the Website Design Services Materials and are subject to the terms and conditions of this Agreement
The copyright and all other rights to the EarthLink Digital Content and the Website Design Service Materials will remain with the owners of the specific EarthLink Digital Content and Website Design Service Materials.
You agree to use the Service only for lawful purposes and in compliance with the EarthLink Acceptable Use Policy , which is incorporated herein. You are solely responsible for the content, materials, files, data and links on your website ("Content on Your Website"). You agree and warrant that the Content on Your Website and transmission of any data, images or materials from your website (i) will not violate any federal, state, local or foreign laws, rules or regulations, and (ii) will not violate the rights of any person, group or entity including the intellectual property rights protected by copyright, trade secret, patent, or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of "pirated" or other products that are not licensed to you. You will not use the network resources of EarthLink to impersonate another person or misrepresent authorization to act on behalf of others or EarthLink. Any emails sent in connection with your website must correctly identify the sender. Violations of any of these terms may result in termination of your use of the Services with or without notice.
11. THE FOLLOWING SECTION 11 ONLY APPLIES TO THE EARTHLINK WEB HOSTING SERVICES
11.1 Access to Digital Content
EarthLink will host your website according to the terms of the Package selected by you provided that you comply with the terms and conditions set forth in this Agreement. EarthLink will provide email boxes, web hosting storage and associated services as specified in the Package you selected. EarthLink has the right to remove or reassign the IP addresses of your website. From time to time EarthLink may impose reasonable rules and regulations regarding the use of the EarthLink Web Hosting Service. EarthLink reserves the right to change any of the features, content or applications of the EarthLink Web Hosting Service at any time with or without notice to you.
The EarthLink Web Hosting Service will provide you with access to objects such as images, photographs, templates, graphics, animations, video, audio, music, sound, text, data, software, trademarks, trade names, logos and other intellectual property as well as "applets", and "online" or electronic documentation (collectively, "EarthLink Digital Content") that you may incorporate into your own original work, modify and publish in your website for viewing purposes as long as you pay for the EarthLink Web Hosting Service. The EarthLink Digital Content will only function on EarthLink's servers. You may use the EarthLink Digital Content only in accordance with the EarthLink Acceptable Use Policy .
Except if you signed up for the Website Design Service, you will provide EarthLink with materials and data in a "server-ready" condition which means that it will not require consultation or any additional manipulation by EarthLink to host your website ("Server-Ready"). Materials include, but are not limited to, (i) any form of text files or documents in any format (.txt, .doc, .pdf); (ii) pictures, music, video, and other binary files; (iii) executable scripts known as CGIs (or any other web application software that makes a website more interactive); (iv) the EarthLink Digital Content; or (vi) anything else that EarthLink did not explicitly provide as part of the Services.
EarthLink may, at its option and at any time, reject such material and data, including but not limited to after it has been put on one of the EarthLink servers. EarthLink will notify you of its refusal of such materials and provide you with the opportunity to amend or modify such materials to satisfy the Server-Ready requirements. If you fail to modify such materials, as directed by EarthLink, within a reasonable period of time, your account will be deemed to be terminated. You warrant that you have the right to use the content, trademarks and any other intellectual property that you place on your website.
EarthLink will not be responsible for validating any of the text you display on your website for spelling, grammar or accuracy. EarthLink may be required to disclose information to individuals asserting rights under the Digital Millennium Copyright Act, and you expressly authorize EarthLink to comply with any and all lawful notices, subpoenas, court orders, or warrants without prior notice to you.
11.3 Data Transfer and Storage Limits
Your Package sets forth the monthly data transfer and storage limits. The EarthLink Web Hosting Control Center provides you with the ability to select a setting (i) for the percentage of your monthly data transfer limit when EarthLink will email to you a warning message email that your monthly data transfer is approaching its limit and you will be charged overage fees if its exceeds its limit, or (ii) that in the event your website exceeds the monthly data transfer limit in your Package, your website will shut down so that you do not incur any charges for the overage amount. If your website reaches its monthly storage limit, you will not be able to upload additional documents. In such event you can delete some of the stored documents or upgrade to a Package with a higher monthly storage limit.
11.4 Restrictions of Use
You will not attempt to undermine the security or integrity of the EarthLink Web Hosting Service or the EarthLink network including, but not limited to, port scanning, vulnerability probing or denial of service attacks of any kind. In addition, running excessively CPU intensive CGIs such as IRC bots and utilities, Bit Torrent clients, and any application that acts as a server and listens for inbound network connections are prohibited. Software that acts as proxy server/scripts also is not permitted. If your processes are adversely affecting server performance, EarthLink reserves the right to terminate and disable the offending processes even if such action causes disruption to your website. EarthLink restricts run time of any customer's CGI process to five minutes.
Using the EarthLink Web Hosting Service to send unsolicited bulk emails or usenet postings (spam) is also prohibited. Engaging in activities pertaining to Black Hat SEO, spandexing and so-called "scraper sites" is prohibited. EarthLink reserves the right to disable any portion of your website if EarthLink determines, at its sole discretion, that your website is being used for spamming, hacking or any other type of illegal activity.
12. THE FOLLOWING SECTION 12 APPLIES ONLY TO THE DOMAIN NAME REGISTRATION SERVICE
EarthLink currently provides the Domain Name Registration Service through the services provided by registrars accredited through the Internet Corporation for Assigned Names and Numbers ("ICANN"). ICANN coordinates, among other things, the top-level domain name ("TLDs) systems management including generic and country code TLDs and develops policies regarding domain names. EarthLink accepts applications to register domain names with the following TLDs in Roman-alphabet languages: com, .net, .org, .biz, .info, name, .mobi, .asia, .tel and .us.
If you are registering the .biz TLD, you agree that your registered domain will be used primarily for a bona fide business or commercial purpose at the time of registration. A bona fide business use is one of the following: (i) to exchange goods, services, or property of any kind in the ordinary course of trade or business; or (ii) to facilitate the exchange of goods, services, information, or property of any kind in the ordinary course of trade or business. You also agree that the .biz TLD will not be used exclusively for personal use; or solely for the purposes of (i) selling, trading or leasing the domain for compensation, or (ii) the unsolicited offering to sell, trade or lease the domain for compensation.
Registration of .us TLD is limited to (i) U.S. citizens or permanent residents in the U.S.; (ii) entities or organizations that are incorporated in the U.S.; (iii) U.S. federal, state or local government; or (iv) foreign entities with a bona fide presence in the United States. If you are registering the .us TLD, you agree and acknowledge that you have a presence in the United States and that you are not permitted to purchase private or proxy .us registration.
Your domain name application process will not be effective until the domain name registration information you provide to EarthLink is delivered to the registrar and the registrar puts into effect your domain name registration.
You agree that you will to be bound by all terms and conditions of ICANN's Uniform Domain Name Dispute Resolution Policy (the "UDRP"), as amended from time to time, which is hereby incorporated and made a part of this Agreement and can be found at http://www.icann.org/dndr/udrp/policy.htm . The UDRP sets forth the terms and conditions in connection with a dispute between you and any party other than us or the registrar over the registration and use of a domain name registered by you.
12.2 No Guarantee of Registration or Renewal
You acknowledge and agree that EarthLink does not guarantee that you will be able to register or renew a desired domain name, even if an inquiry indicates that domain name is available, because EarthLink cannot know with certainty whether or not the domain name which you are seeking to register is simultaneously being sought by a third party, or whether there are any inaccuracies or errors in the domain name registration or renewal process or related databases, including the various WHOIS databases.
You further acknowledge and agree that EarthLink may elect to accept or reject your application for registration for any reason at its sole discretion, such rejection including, but not limited to, rejection due to a request for registration of a prohibited domain name. You also acknowledge and agree that EarthLink is not liable or responsible in any way for any errors, omissions or any other actions by any registrar administrator arising out of or related to your application for, registration of, renewal of, or failure to register or renew a particular domain name.
In addition, EarthLink is not responsible for any domain names that you chose not to renew its registration. In the event that you have not paid your prepaid bill or monthly bill, whichever is applicable, and your EarthLink account has gone into inactive status, EarthLink will not renew your domain name. If you reactivate your EarthLink account after the registration of your domain name has expired, EarthLink will not be responsible for renewing the expired domain name registration.
12.3 The Customer Relationship
By submitting the domain name registration application to EarthLink, you acknowledge and agree that you are a customer of EarthLink for purposes of EarthLink registering and renewing your domain name. You further acknowledge that there is no customer relationship between you and the registrar of your domain name. U pon termination of EarthLink's relationship with its registrar or during the renewal of your domain name registration, EarthLink, in its sole discretion, may transfer your domain name registration to a new registrar at no additional charge to you and that this Agreement will continue in full force and effect. In the event that the registrar transfer process requires changing your administrative contact information and /or your organization's email address to EarthLink, to expedite such transfer process , EarthLink will notify you that your administrative contact information and/or your organization's email address will be changed to EarthLink for this short period of time while your domain name registration is transferred to the new registrar. Changing this information to EarthLink during the transfer process will not affect your ownership of the domain. After the transfer of your domain name to the new registrar has been completed, EarthLink and the new registrar will change the transferred administrative contact information and/or your organization's email address back to your original administrative contact information and/or your original organization's email address.
12.4 Domain Name Registrant
EarthLink considers the entity named as the administrative contact for the domain name at the time the controlling user name and password are secured to be the registrant of that domain name.
You agree to pay the then-current fees for domain name registrations and renewals set forth in the EarthLink price schedule for the billing plan you selected. All fees are non-refundable, in whole or in part, even if your domain name registration is suspended, canceled or transferred prior to the end of your then-current registration term. EarthLink reserves the right to change renewal fees at any time upon thirty (30) days' notice.
Unless you contact EarthLink in writing to give alternate instructions, EarthLink will automatically renew your domain name registration at the then-current renewal fee, charging the method of payment you used to register your domain name two (2) months prior to the renewal date. EarthLink will renew your domain name registration for the same period of time as the period of time of your original registration term. For example, if your original registration term was one year, then EarthLink will renew your domain name registration for a one year renewal term.
If you want to change your original billing information, you must do so by contacting EarthLink at least sixty (60) days before your domain name registration expires, otherwise your original credit card, debit card or other method of payment will be billed. If your original credit card or debit card has expired or is otherwise invalid, you must contact EarthLink with a valid credit card or debit card or some other method of payment acceptable to EarthLink at its sole discretion. However, in the event that EarthLink does not have your valid billing information before the date your domain name registration expires, your domain name registration may not be renewed.
12.6 Domain Name Revisions and Additions to this Agreement
You acknowledge that the Internet, domain name system and the practice of registering and administering domain names are evolving, and therefore you agree that EarthLink may modify this Agreement, as well as any additional rules or policies that are or may be published by EarthLink, as necessary to comply with any ICANN-accepted policy, or with any other agreements that EarthLink is currently bound by or will be bound by in the future, as well as to adjust to changing business circumstances. Your continued use of any domain name registered through EarthLink will constitute your acceptance of this Agreement as well as additional rules or policies that are or may be published by EarthLink, each with the new modifications. If you do not agree to any of such changes, you may request that your domain name registration be canceled or transferred to a different domain name registrar. You acknowledge and agree that such cancellation or request for transfer will be your exclusive remedy and EarthLink's sole liability if you do not wish to abide by any changes to this Agreement or any additional rules or policies that are or may be published by EarthLink.
12.7 Information Needed for Domain Name Registration
You hereby acknowledge and agree that, in connection with your domain name registration, you are required by ICANN and the registrar to provide certain information and to update promptly this information as needed to keep it current, complete and accurate ("Domain Information"). The Domain Information you are obligated to provide and keep current in connection with your use of EarthLink's domain name registration, administration, and renewal services includes: (i) your full name (or the name of the authorized person for contact purposes, if registration is for an organization, corporation or association), postal address, email address, voice telephone number, and fax number, if available (or if different, that of the domain name registrant); (ii) the domain name being registered; and (iii) the name, postal address, email address, voice telephone number, and where available, fax number for the administrative contact, technical contact and billing contact for the domain name registration.
12.8 Additional Information Maintained
In addition to the "Domain Information, EarthLink may maintain records relating to any domain name application received by EarthLink, as well as any domain name registered through, administered, or renewed by EarthLink. EarthLink also maintains records relating to the Domain Name Registration Service that may include, but are not limited to: (i) the original creation date of a domain name registration, renewal, or request for service; (ii) the submission date and time of a registration or renewal by EarthLink to the proper registry; (iii) communications (electronic or paper form) constituting submissions, forwarding, modifications, or terminations of service and related correspondence between you and EarthLink; (iv) records of your account, including dates and amounts of all payments and refunds; (v) the IP addresses of the primary nameserver and any secondary nameservers for the domain name; (vi) the corresponding names of those nameservers; (vii) the name, postal address, email address, voice telephone number, and where available, fax number of the zone contact for a domain name; (viii) the expiration date of a domain name registration; and (ix) information regarding all other activity between you and EarthLink regarding your use of the Domain Name Registration Service (collectively, "Other Information"). To process your registration or renewal, EarthLink may provide the Domain Information and the Other Information to its registrar.
12.9 Obligations Relating to the Information You Provide
In the event that you provide information about a third party in applying for the registration of a domain name or you license a domain name registered in your name to a third party, you hereby represent and warrant that you have (i) provided notice to that third party of the disclosure and use of that party's information as set forth in this Agreement, and (ii) that you have obtained that third party's express consent to the disclosure and use of that party's information as set forth in this Agreement. You are prohibited from registering for a third party for the .us registrations that is located outside of the United States.
You acknowledge and agree that willfully providing inaccurate or unreliable information or willfully failing to update information promptly will constitute a material breach of this Agreement that will be sufficient basis for cancellation of your domain name registration. You further acknowledge and agree that your failure to respond for over fifteen (15) calendar days to inquiries by EarthLink concerning the accuracy of contact details associated with your domain name registration will constitute a material breach of this Agreement and will be sufficient basis for cancellation of your domain name registration.
12.10 Disclosure and Use of Information
EarthLink will provide the Domain Information to EarthLink's registrar that is required by EarthLink's registrar in processing the registration or renewal of you domain name. You hereby acknowledge that this Domain Information will be publicly available and accessible on the WHOIS directory as required by ICANN/Registry Policy during or after the term of your registration of your domain name unless you opt to pay for the domain privacy service.
You further acknowledge that EarthLink's registrar may use certain of the information provided by EarthLink regarding your domain name registration or renewal in a manner consistent with such registrar's terms of usage and user agreement. EarthLink will only provide its registrar with that information necessary to process and renew your registration. You hereby irrevocably waive any and all claims and causes of action you may have arising from such disclosure or use of information provided by you to EarthLink.
12.11 Ownership of Data
You acknowledge and agree that EarthLink owns all databases, compilation, collective and similar rights, title and interests worldwide in EarthLink's domain name and other proprietary information databases, and all information and derivative works generated from those databases. Additionally, you hereby grant to EarthLink a nonexclusive, worldwide, perpetual, irrevocable, fully paid-up right and license to use in its business, however it evolves, including the rights to copy, distribute, display, perform, transmit, prepare derivative works from or otherwise use the following information: (i) the original creation date of a domain name registration, (ii) the expiration date of a domain name registration, (iii) the name, postal address, email address, voice telephone number, and where available fax number of the technical contact, administrative contact, zone contact and billing contact for a domain name registration, (iv) any remarks concerning a registered domain name that appear or should appear in a WHOIS or similar database, and (v) any other information EarthLink generates or obtains in connection with the Domain Name Registration Service. EarthLink does not have any ownership interest in your specific personal registration information or other information other than EarthLink's rights in its domain name database as set forth in this Section 11.11.
12.12 Agents and Licenses
You agree that, if you are using the Domain Name Registration Service for someone else, you represent that you have the authority to nonetheless bind that person as a principal to all terms and conditions provided herein. You accept liability for harm caused by wrongful use of the Domain Name Registration Service. You agree that if you license the use of a domain name registered in your name to a third party, you nonetheless remain the domain name holder of record, and remain responsible for all obligations under this Agreement, including but not limited to payment obligations, and providing (and updating, as necessary) both your own full contact information, and accurate technical, administrative, billing and zone contact information adequate to facilitate timely resolution of any problems that arise in connection with the domain name and domain name registration. As further required by ICANN, you will accept liability for harm caused by wrongful use of the domain name, unless you promptly disclose the identity of the licensee to a party providing you with reasonable evidence of actionable harm.
12.13 System Performance Degradation
EarthLink's delivery of the Domain Name Registration Service services depends upon its computer system and the computer system of its registrar, both of which are responsive to the demands of the domain name registration process. Occasionally, EarthLink's computer system or its registrar's computer system are subjected to exceptional volumes of incoming domain name registration requests, electronic mail messages, and/or WHOIS queries that result in significant degradation of EarthLink's or its registrar's system processing and response time. Regardless of the reason, in those instances when there is system performance degradation as the result of an extremely large volume of incoming electronic messages, EarthLink reserves the right, in its sole discretion, to filter or block electronic messages originating from the identified sources of the high-volume traffic. EarthLink will selectively restore service after system performance returns to normal limits, provided that such restoration does not result in an adverse impact on the system. EarthLink further reserves the right to permanently filter or block repeated sources of high volumes of electronic traffic.
12.14 Suspension, Cancellation, Transfer
You acknowledge and agree that EarthLink may suspend or cancel your use of the EarthLink Domain Name Registration Service at any time, for any reason, in EarthLink's sole discretion, including if (i) you materially breach this Agreement (including any applicable additional rule or policy; (ii) you use the domain name registered to you to send unsolicited email advertisements in contradiction to either applicable laws or customary acceptable usage policies of the Internet; or (iii) your use of your domain name does not comply with applicable local, state, national and international laws, rules and regulations.
You further acknowledge and agree that your domain name registration is subject to suspension, cancellation, transfer or modification pursuant to the terms of any rules or policies applicable to your domain name registration, including, but not limited to (i) the UDRP, (ii) any ICANN-adopted policy, (iii) any registrar or registry administrator procedures, or (iv) any other ccTLD registry administrator procedures. You also agree that EarthLink will have the right in its sole discretion to suspend, cancel, transfer or otherwise modify your domain name registration at such time as EarthLink receives (i) a properly authenticated notification from a court of competent jurisdiction, or (ii) an arbitration award requiring the suspension, cancellation, transfer or modification of your domain name registration.
If you contact EarthLink that you do not want EarthLink to renew your domain registration, then the domain name registration will continue until the end of the registration term. You may renew it yourself or transfer the domain name registration to another registrar.
12.15 Additional Disclaimers and Indemnification regarding the EarthLink Domain Name Registration Service
THE TERMS IN SECTION 11 HEREIN APPLIES TO THE EarthLink DOMAIN NAME REGISTRATION SERVICE. IN ADDITION TO THE TERMS IN SECTION 11, THE FOLLOWING TERMS APPLY TO THE EARTHLINK DOMAIN NAME REGISTRATION SERVICE.
EARTHLINK MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER THAT REGISTRATION OR USE OF A DOMAIN NAME UNDER THIS AGREEMENT WILL IMMUNIZE YOU EITHER FROM CHALLENGES TO YOUR DOMAIN NAME REGISTRATION, OR FROM SUSPENSION, CANCELLATION OR TRANSFER OF THE DOMAIN NAME REGISTERED TO YOU.
You hereby represent and warrant that (i) the statements that you made in connection with such application for registration, are complete, truthful and accurate; (ii) to your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; (iii) you are not registering the domain name for an unlawful purpose or not in accordance with the terms of this Agreement or ICANN rules; and (iv) you will not knowingly use the domain name in violation of any applicable laws or regulations. You agree and acknowledge that it is your responsibility to determine whether your domain name registration infringes or violates a third party's rights including, but not limited to, whether any foreign language translations of your domain name, infringe or violate someone else's rights.
You agree to notify EarthLink of any claim or potential claim against your domain name, including, but not limited to, the initiation of a dispute under UDRP, within five (5) business days of same. In the event that you lose your right to use a domain name used in connection with the EarthLink Web Hosting Service, whether through expiration of the domain name, judicial decree, administrative decisions of the UDRP or otherwise, you agree to inform EarthLink immediately and, if applicable, inform EarthLink of the party to whom the domain name is to be transferred and to authorize EarthLink to take any and all action necessary to effect such transfer.
You agree to defend, indemnify and hold harmless the EarthLink Parties for any loss, damages or costs, including reasonable attorneys' fees, resulting from any third-party claim, action, or demand related to (i) your use of the Domain Name Registration Service, including, but not limited to, your application for registration or renewal of any domain name registered in your name, and (ii) your use of any domain name registered in your name. You additionally agree to indemnify, defend and hold harmless the EarthLink Parties from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees and expenses) arising out of, or related to, your application for registration of, renewal of, or failure to register or renew, a particular domain name. These indemnification provisions are in addition to any indemnification required under the UDRP or any similar policy.
13. THE TERMS IN THE FOLLOWING SECTION 13 APPLY TO THE WEBSITE DESIGN SERVICE.
13.1 Website Design
After you register for the Website Design Service, EarthLink will send you emails that will include a purchase summary, login link, and login credentials to access the EarthLink Website Project Center that includes the website design electronic form ("Website Specification Summary Form"). You will have access to numerous template website designs. An EarthLink design consultant will contact you during business hours to assist you in completing the Website Specification Summary Form. Within five (5) business days after the date that the EarthLink design consultant contacts you, you will complete the Website Specification Summary Form including selecting a template website design and uploading the text and images that you want displayed on certain pages in your website. The EarthLink Website Project Center includes sample text and images that you may select for display on your website.
The EarthLink design consultant will design your website ("Created Website") based on the information you provided in your completed Website Specification Summary Form. The EarthLink design consultant will provide the first draft of the Created Website to you in a subfolder in the EarthLink Website Project Center for you to access through your username and password. For thirty (30) days after the first draft of the Created Website is posted, you can work with the EarthLink design consultant to make up to three (3) minor changes to the Created Website to finalize it for deployment. The list of minor changes and major changes are listed in the Frequently Asked Questions tab in the EarthLink Website Project Center.
The Created Website will remain in the subfolder until you approve it. After your approval, the Created Website will be published on an EarthLink Server.
If you want an EarthLink design consultant to make additional changes to your website after such thirty (30) day period, you may purchase a maintenance agreement from EarthLink as listed in your Package.
In the event that you do not submit a completed Website Specification Summary Form to EarthLink within the five (5) business day period described above, an EarthLink design consultant will create a limited design of your website with (i) a template selected by the EarthLink design consultant and (ii) text based on information you initially provided to EarthLink when you registered for the Website Design Service. The EarthLink design consultant will post such limited website design in a password protected project folder in the EarthLink Website Project Center for your review. After your review of such limited website design, you may select a different template.
13.2 Billing Plans for Website Design Service
The Website Design Service's monthly payment billing plan has a twelve (12) month commitment. If you cancel the Website Design Service prior to completing the twelve (12) payments for the Website Design Service, EarthLink will bill you for the remaining unpaid monthly payments. After your (12) month commitment is completed and fully paid, you may cancel at any time EarthLink will only bill you up to the end of the current monthly billing period.
13.3 Your Use of the Website Design Service
You will use the Created Website as one website only, displayed at a single IP address, with the exception that you may create one duplicate of the Created Website for back-up purposes.
14. 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. Consent to receiving autodialed marketing telephone calls and/or marketing texts from EarthLink is not required to purchase products or services from EarthLink. You may exercise your option not to receive any marketing communications from EarthLink by going directly to https://myaccount.earthlink.net/cam/contactinfo.jsp or calling EarthLink customer service.
15. CUSTOMER AND TECHNICAL SUPPORT
For online customer support, log in to the EarthLink Web Hosting Control Center or use live chat http://support.earthlink.net/chat . For telephone support call 800-955-0186.
For specific billing questions, login to myaccount - https://myaccount.earthlink.net/cam/whlogin.jsp
EarthLink provides technical support in connection with the features and tools available through the EarthLink Web Hosting Service.
16. GOVERNING LAW
This Agreement is governed by Georgia law without regard to conflict of law provisions.
17. 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.
17.2 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 Services 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.
17.3 Informal Dispute Resolution Prior to Arbitration
17.3(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.
17.3(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.
17.3(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.
17.4 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.)
17.5 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 thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the AAA. The AAA will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party's notice of appeal. The decision of the three-arbitrator panel 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.
17.7 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.
17.8 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 17.8 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.
17.9 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.
17.10 Future 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 17 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 17 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 17 of this Version November 27, 2013.
17.11 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 17 will survive the termination of your Service with EarthLink.
18. 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 . 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 17; 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 sixth paragraph in Section 4 was added to facilitate access to the Recurring Automatic Bank Draft Authorization Agreement for those who use the ACH Debit method of payment.
2Section 17 was revised to clarify the arbitration procedures. Section 17 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.