EARTHLINK WEB HOSTING AND EARTHLINK DOMAIN NAME REGISTRATION SERVICE AGREEMENT
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.
READ THIS AGREEMENT CAREFULLY BEFORE USING ANY OF THE SERVICES LISTED BELOW.
This Agreement is between EarthLink, LLC and its related entities ("EarthLink") and you and applies to all the products and services available at http://www.earthlink.net/web-hosting/ or www.earthlinkweb.net and and all subpages of http://www.earthlink.net/web-hosting/ or www.earthlinkweb.net (collectively, the "Services"; each a "Service").
Sections 1-11 and Sections 14-19 in this Agreement apply to each of the Services. Section 12 of this Agreement sets forth additional specific terms that apply to the Do-It-Yourself Web Hosting Service ("Do-It-Yourself Service") and the Do-It-For-Me Web Hosting Service ("Do-It-For-Me Service") and only applies to you if you signed up for one of these Services (the Do-It-Yourself Service and the Do-It-For-Me Service will be collectively referred to as the "EarthLink Web Hosting Service"). Section 13 sets forth additional specific terms that apply to the Domain Name Registration Service and only applies to you if you signed up for the Domain Name Registration Service.
By establishing an account for the Services or using the Services, you agree to be bound by this Agreement and to use the the Services 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 Services. This Agreement continues until the later date of termination of your Services. Sections 6, 9, 10, 14, 16, 17, 18 and 19 of this Agreement will survive termination of this Agreement.
3. SERVICES NOT INTENDED FOR USE BY COVERED ENTITIES
Unless expressly set forth in the description of the Services on http://www.earthlink.net/web-hosting/ or www.earthlinkweb.net or all subpages thereto, the Services are not intended for use by covered entities or business associates to create, access, transmit, or maintain protected health information that is subject to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). You agree that you have reviewed the descriptions of the Services on http://www.earthlink.net/web-hosting/ or www.earthlinkweb.net and their subpages and understand the intended use of the Services that you are purchasing. You also agree that unless a Service description expressly states that the Service is "HIPAA Compliant," you will not use such Service to create, access, transmit or maintain any protected health information. Any violation of this Section 3 is your sole responsibility. EarthLink and its affiliates, subsidiaries and licensors will have no liability with respect to your violation of this Section 3.1
4. 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 may accept or reject any potential subscriber to the Services in its sole discretion.
5. 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) any applicable set-up fees; and (iii) any applicable method of payment fees. Also, 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 Services 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.
For monthly subscription billing plans, you will be able to use the Services 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.
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 Agreement. EarthLink will charge a fee for returned bank drafts from your financial institution. 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 or as updated by you, if applicable, ("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 your account a fee for each 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 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 your account a fee for each 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.
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.
If you upgrade from the Do-It-Yourself Service to the Do-It-For-Me Service, there will not be any cost for upgrading except for the difference in the monthly fees. If you downgrade from the Do-It-For-Me Service to the Do-It-Yourself Service prior to the end of your 12 month term, you will be charged the applicable early termination fee. However, if you downgrade from the Do-It-For-Me Service to the Do-It-Yourself Service after the 12 month term, you will not be charged the early termination fee. Such upgrade or downgrade will take effect immediately and the new monthly fee will take effect as of the date of such change.
If you change from your existing plan within the Do-It-Yourself Service to another plan within the Do-It-Yourself Service (e.g. Website Plus to Business Website Plus), there will not be any cost for this change except the difference in the monthly fees. If you change from your existing plan within the Do-It-For-Me Service to another plan within the Do-It-For-Me Service (e.g. Premium Design and Marketing Website to Standard Design and Marketing Website) prior to the 12 month term, you will be charged the early termination fee. But if you change from your existing plan within the Do-It-For-Me Service to another plan within the Do-It-For-Me Service after the 12 month term, you will not be charged the early termination fee. The new plan will start immediately and the new monthly will take effect as of the date of such change.2
EarthLink reserves the right (i) to change the fees associated with your Services 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.
6. CANCELLATION AND TERMINATION
You may cancel your Services 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:EarthLink, LLC
Cancel (Name of the Services being cancelled)
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 Services. 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 Services after the end of the billing period, EarthLink will refund any erroneous charges upon proof of such cancellation.
The Do-It-For-Me Service's monthly payment billing plan has a twelve (12) month commitment. If you cancel the Do-It-For-Me Service prior to completing the twelve (12) payments, 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, and EarthLink will only bill you up to the end of the current month.
Except for the Domain Name Registration Service and the Do-It-For-Me Service, EarthLink will provide you with a full refund if you cancel any of the other Services within the first thirty (30) days of your subscription.
Except as described in this Agreement, EarthLink does not grant refunds or credits for any prior use including partial use of the Service during the last month of cancellation, and EarthLink does not issue pro rata refunds for fees paid in advance.
If EarthLink waived the registration fee of your domain name and you cancel either the Do-It-Yourself Service or the Do-It-For-Me Service prior to the 90th day after your account billing start date or whichever start date is set forth in your billing plan, then EarthLink may charge you for the registration fee for your domain name.
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 EarthLink’s 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, files or emails. 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 account for the Services 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 a Service is prohibited by law. A 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. Upon termination by EarthLink under its sole discretion, EarthLink may immediately remove your website, including all of your materials, data, files, and emails from EarthLink's servers and you will have no right to copy or download such information.
If your account is canceled by you or terminated by EarthLink, it cannot be reactivated.
7. 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 username, password and other account information, and (ii) the use of your Services by any person who uses your username and password to access the Services, whether or not you specifically authorize such person's use. You must notify EarthLink immediately upon discovering any unauthorized use of your Services or other breaches of security. Usernames, passwords, email addresses and IP addresses are EarthLink's property and EarthLink may alter or replace them at any time.
The EarthLink Parties, as defined in Section 9, 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.
8. 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 Services will not be interrupted and cannot always provide advance notice of such outages.
9. 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 ANY 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) YOUR WEBSITE (INCLUDING ALL CONTENT AND ANY END USERS' USE OF YOUR WEBSITE; (II) OTHER PARTIES ACCESSING YOUR DEVICE; (III) SECURITY BREACHES; (IV) EAVESDROPPING; DENIAL OF SERVICE ATTACKS; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (V) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE) OF THE SERVICES; (VI) YOUR RELIANCE ON OR USE OR MISUSE OF THE SERVICES; (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 SERVICES; (VIII) INABILITY TO ACCESS THE SERVICES DUE TO CONNECTIONS, INTERNET ROUTING, HACKING, SPAMMING OR ANY OTHER CIRCUMSTANCE OUTSIDE THE CONTROL OF THE EARTHLINK PARTIES; OR (IX) THE USE OF THE SERVICES 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 SERVICES 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 Services or the use or misuse of the Services by anyone else through your account including, but not limited to, use or misuse of the Services (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).
11. GENERAL LICENSE AND USE OF THE SERVICES
The names of EarthLink, the Services and other EarthLink products and services, and their related logos, are trademarks of EarthLink ("EarthLink Marks"). Except for the "powered by EarthLink" logo on the bottom of the pages of your website hosted by EarthLink, if applicable, you agree not use any EarthLink Marks on your website or anywhere without the prior written permission of EarthLink.
Except as expressly granted herein, nothing in this Agreement grants to or confers in you any license or right of ownership. You will not reproduce, copy or publicly display, or permit anyone else to reproduce, copy or publicly display, any of the tools ("Tools") or Server-Ready EarthLink Digital Content, defined in Section 12.2, found on the EarthLink Web Hosting Service’s online control center that you can access after you log into cc.earthlink.net ("Control Center"), 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.
You agree to use the Services 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 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 Services 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.
12. SECTION 12 APPLIES ONLY TO THE EARTHLINK WEB HOSTING SERVICE
12.1 Hosting Your Website
EarthLink will host your website according to the terms of the EarthLink Web Hosting Service 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 EarthLink Web Hosting Service plan 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 or reject any of the features, content or applications of or relating to the EarthLink Web Hosting Service at any time with or without notice to you.
12.2 Access to Server-Ready EarthLink Digital Content
The EarthLink Web Hosting Service will provide you with access to materials and data in a "server-ready" condition through the Control Center, that it will not require consultation or any additional manipulation by EarthLink to host your website. Such materials and data may include, but are not limited to, (i) 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, (ii) supplemental software code and supporting materials as part of the support services for such objects ("Supplemental Software Code and Supporting Materials"), and (iii) executable scripts known as CGIs or any other web application software that makes a website more interactive (collectively, items (i)-(iii) are referred to as "Server-Ready EarthLink Digital Content"). You may use the Server-Ready EarthLink Digital Content only in conjunction with the EarthLink Web Hosting Service and in accordance with this Agreement, including the EarthLink Acceptable Use Policy.
EarthLink may, at its option and at any time, reject certain Server-Ready EarthLink Digital Content even after it has been put on one of the EarthLink servers. EarthLink will notify you of its refusal of such Server-Ready EarthLink Digital Content, 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 may incorporate the Server-Ready EarthLink Digital Content into your own original work, and you may modify and publish the Server-Ready EarthLink Digital Content in your website for viewing purposes as long as you pay for the EarthLink Web Hosting Service. The Server-Ready EarthLink Digital Content will only function on EarthLink's servers.
12.3 Specific Terms for the Do-It-For-Me Service
If you signed up for the Do-It-For-Me Service, EarthLink will send you three separate emails: (i) a purchase summary, (ii) login link, and login credentials to access the Control Center; and (iii) login link, and login credentials to access the project center ("Project Center") that includes the website design electronic form ("Website Specification Summary Form"). You will have access to numerous template website designs as well as the Server-Ready EarthLink Digital Content through the Control Center.
An EarthLink design consultant ("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 Control 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 your 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 is located under the Frequently Asked Questions tab in the Project Center. The Created Website will remain in the subfolder until you approve it. After your approval, the Created Website will be published on the 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.
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, the 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 Do-It-For-Me Service ("Limited Website Design"). Upon completion of your Limited Website Design by the EarthLink Design Consultant, the EarthLink Design Consultant will send you an email informing you that the Limited Website Design has been posted in your Project Center for your review. You will have five (5) business days from the date this email was sent to review your Limited Website Design.
If you do not ask for any changes to the Limited Website Design during that five (5) business day period, EarthLink will post the Limited Website Design on your URL provided that you do not have any live site on your domain name’s URL. In the event that you have a site posted on your domain name’s URL, the Limited Website Design will remain in your Project Center for as long as your account remains active on the Do-It-For-Me Services.
After your review of such Limited Website Design, you may select a different template if necessary. After the EarthLink Design Consultant receives your feedback regarding your selected template and all the content you want on your website, the EarthLink Design Consultant will rebuild your website. Such rebuilt website will be considered your Created Website. After the new website design is completed, the EarthLink Design Consultant will send you an email informing you that the new website design has been posted in your Project Center for your review.
You will use the Created Website or the Limited Website Design, as applicable, as one website only, displayed at a single IP address, with the exception that you may create one duplicate of the Created Website or Limited Website Design for back-up purposes.3
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 Tools; (ii) the Server-Ready EarthLink Digital Content; (iii) if you signed up for the Do-It-For-Me Service, the content for your website provided by the Do-It-For-Me Service and any supplemental software code and supporting materials provided as part of the support services for the Do-It-For-Me Service (collectively, the "Do-It-For-Me Service Materials"); and (iv) the "powered by EarthLink" logo on the bottom of the pages of your website, if applicable.
Any rights not expressly granted herein will be reserved for EarthLink and its licensors. All 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 all their intellectual property, including but not limited to: (i) any and all EarthLink software used or accessed in conjunction with the Services, including all updates, improvements, modifications and enhancements; (ii) the Tools; (iii) the Server-Ready EarthLink Digital Content; (iv) the Do-It-For-Me Service Materials, and (v) the "powered by EarthLink" on your website, if applicable.
In addition, you are not permitted to (i) use the Server-Ready EarthLink Digital Content or the Do-It-For-Me Service Materials in a web page design whereby the Server-Ready EarthLink Digital Content or the Do-It-For-Me Service Materials is in a format designed or intended for storage or re-use by others; (ii) use or permit the use of the Server-Ready EarthLink Digital Content or the Do-It-For-Me Service Materials or any part thereof as a trademark or service mark, or claim any proprietary rights of any sort in the Server-Ready EarthLink Digital Content or the Do-It-For-Me Service Materials or any part thereof; (iii) use the Server-Ready EarthLink Digital Content or the Do-It-For-Me 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 Server-Ready EarthLink Digital Content or the Do-It-For-Me Service Materials; or (v) rent, lease, assign, transfer or redistribute the Server-Ready EarthLink Digital Content or the Do-It-For-Me Service Materials.
12.5 Intellectual Property Warranty
You warrant that you have the right to use the content, materials, files, data, links, trademarks and any other intellectual property displayed on your website that EarthLink did not explicitly provide to you as part of the Server-Ready EarthLink Digital Content or the Do-It-For-Me Service Materials ("Additional Content on Your Website"). You agree and warrant that the Additional Content on Your Website and the transmission of any data, images or materials from your website will not violate (i) any federal, state, local or foreign laws, rules or regulations, or (ii) the rights of any person, group or entity including the intellectual property rights protected by copyright, trade secret, patent, or other intellectual property laws or regulations. You understand and agree that EarthLink cannot support the Additional Content 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.
EarthLink reserves the right to reject any Additional Content on Your Website at any time with or without notice to you.
12.6 Additional Indemnities
In addition to your indemnification obligations set forth in Section 10, 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 Additional Content on Your Website.
12.7 Data Transfer and Storage Limits
Your EarthLink Web Hosting Service plan sets forth your 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 at which 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 EarthLink Web Hosting Service plan, 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 an EarthLink Web Hosting Service plan with a higher monthly storage limit.
12.8 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 or network 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.
13. SECTION 13 APPLIES ONLY TO THE DOMAIN NAME REGISTRATION SERVICE
EarthLink 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.
Type in the domain name you want in the search box on either www.earthlink.net/web/hosting or www.earthlinkweb.net and click on search for domain. If the EarthLink domain name search results shows that such domain name and your requested TLD is available, EarthLink will accept your application to register it.
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; and (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.
EarthLink considers the entity named as the administrative contact for the domain name to be the registrant of such domain name and therefore the person who has control over the registration of such domain. As a registrant of a domain name with a registrar accredited by ICANN, under the ICANN Rules, you have the (i) rights and responsibilities set forth on the ICANN webpage located at http://www.icann.org/en/resources/registrars/registrant-rights/educational and (i) benefits and additional responsibilities set forth on the ICANN webpage located at http://www.icann.org/en/resources/registrars/registrant-rights/benefits.
You also are bound by the 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. In addition, you are bound by the terms and conditions of service of the registrar EarthLink selects to register your domain name.
13.2 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 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 name for which you chose not to renew its registration. In the event that you have not paid your EarthLink Web Hosting fees or domain name registration fees, as applicable, or 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.
13.3 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. New registrations will be processed by a registrar selected by EarthLink.
After EarthLink sends your new registration to the selected registrar, the registrar will send you an email that will ask you to verify your email address within 15 calendar days by clicking on the confirmation link. The registrar will consider your domain name registration verified after the confirmation link in this email has been clicked. If you do not verify your email address within such 15 calendar day period, the DNS to your domain may point to the registrar’s servers and your website will not show up. In such case, you should call EarthLink to send you a new verification email. After you verify your email address, the DNS will point to your domain.
Upon 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. The new registrar will contact you via email with a confirmation link to verify the domain transfer from the former registrar to the new registrar.
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 EarthLink receives alternate instructions from you in writing two (2) months prior to the renewal date, EarthLink will automatically renew your domain name registration at the then-current renewal fee using the method of payment you used to register your domain name. 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.
13.5 Modifications to the Terms regarding the Domain Name Registration Service
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.
13.6 Your Whois Information
You hereby acknowledge and agree that, in connection with your domain name registration, you are required by ICANN, the registrar and EarthLink to provide certain registrant contact information ("Whois Information") including (i) first name, (ii) last name, (iii) company, if applicable, (iv) street address, (v) city/state/country, (vi) zip code, (vii) email address, and (viii) telephone number. You are required to update your Whois Information as needed to keep it current, complete and accurate. In the event that you change your Whois Information, the registrar or EarthLink will send you a verification email confirming the receipt of the change to your Whois Information and requesting that you verify such change by clicking on the confirmation link in the email within 15 calendar days. If you do not verify the changed Whois Information within such 15 calendar day period, the DNS to your domain will be pointed to the registrar’s servers and your website will not show up. You will need to correct it by contacting EarthLink or using the EarthLink Control Center. After you verify the changed Whois Information, the DNS will revert back to the original settings.
Each year ICANN requires registrars to remind registrants to review the registrant’s Whois Information for the registrant’s domain. Upon receipt of this reminder email from the registrar, you will not need to take any action if all of your Whois Information is correct but if any of your Whois Information is inaccurate, you will need to correct it by contacting EarthLink or using the EarthLink Control Center. If this annual email from the registrar bounces back, the verification process will be triggered and you will receive an email asking you to verify your email address within 15 days by clicking on the link in the email. If you do not verify your email address within such 15 day period, the DNS to your domain will be redirected to point to the registrar’s servers and your website will not show up until the verification process has been completed.4
13.7 Additional Information Maintained
In addition to your Whois Information that you provide to EarthLink and EarthLink then provides to the registrar for you, EarthLink maintains records relating to the Domain Name Registration Service that may include, but are not limited to: (i) any domain name application received by EarthLink, as well as any domain name registered through, administered, or renewed by EarthLink; (ii) records of your account, including dates and amounts of all payments and refunds; and (iii) any and all communication between EarthLink and you regarding your use of the Domain Name Registration Service.
13.8 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 .us domain for a third party 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.
13.9 Disclosure and Use of Information
EarthLink will provide to EarthLink’s registrar your Whois Information that is required by EarthLink's registrar in processing the registration or renewal of you domain name. You hereby acknowledge that your Whois 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 your Whois 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 provide its registrar with your Whois information that is 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.
13.10 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, 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 13.10.
13.11 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 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.
13.12 System Performance Degradation
EarthLink's delivery of the Domain Name Registration Service 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.
13.13 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.
13.14 Additional Disclaimers, Limitations of Liability and Indemnification regarding the EarthLink Domain Name Registration Service
In addition to the terms set forth in Section 9, Disclaimers and Limitations of Liabilities, and Section 10, Indemnification, the following disclaimers, limitations of liability and indemnification 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, (ii) your use of any domain name registered in your name or (iii) the loss of the use of your website due to your lack of response to the verification process within the specified time period. 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, (i) your application for registration of, renewal of, or failure to register or renew, a particular domain name; or (ii) your failure to update your Whois Information for accuracy. These indemnification provisions are in addition to any indemnification required under the UDRP or any similar policy.
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 Services. 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 Services 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 Services. Consent to receiving autodialed marketing telephone calls and/or marketing texts from EarthLink is not required to purchase any product or service 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 at 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 1-800-955-0186. 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:
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, LLC, 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 will 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, http://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 http://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 will 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 will be null and void and all disputes will be heard by a court.
17.10 Future Changes to Agreement to Arbitrate
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 April 11, 2014.
17.11 Notice to California Residents
California residents are entitled to the following information:
The Services are provided by EarthLink, LLC, 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 Services 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 Website located at http://www.earthlink.net/about/policies/webhosting.faces. 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 Services 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 Services.
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: April 11, 2014
The following endnotes summarize the revisions made in this April 11, 2014 version of this Agreement compared to the previous version of this Agreement dated November 27, 2013.
1Section 3 was added to this Agreement to clarify that the Services are not intended for use by covered entities or business associates to create, access, transmit, or maintain protected health information that is subject to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") unless the description of a Service on http://www.earthlink.net/web-hosting/ or www.earthlinkweb.net and related subpages expressly state that the specific Service is "HIPAA Compliant."
2Paragraphs 10 and 11 in Section 5 were added to this Agreement to clarify the policies for upgrading or downgrading from one EarthLink Web Hosting plan to another EarthLink Web Hosting plan.
3Section 12.3 was added to this Agreement to explain the details of the Do-It-For-Me Service.
4Section 13.6 was added to this Agreement to clarify the procedures for keeping your Whois Information accurate and current.