THIS AGREEMENT GOVERNS YOUR USE OF EARTHLINK’S DIGITAL MARKETING, WEB HOSTING, DESIGN, AND DOMAIN SERVICES, AND INCLUDES A BINDING ARBITRATION PROVISION IN SECTION 17, WHICH INCLUDES A WAIVER OF CLASS ACTIONS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. IN ARBITRATION THERE IS NO JUDGE OR JURY AND THERE IS LESS COMPELLED INFORMATION DISCLOSURE (REFERRED TO AS “DISCOVERY”) AND APPELLATE REVIEW THAN IN COURT.
READ THIS AGREEMENT CAREFULLY BEFORE USING ANY OF THE SERVICES LISTED BELOW.
This Service Agreement (“Agreement”) is between EarthLink, LLC and its related entities (“EarthLink”) and you. This Agreement governs your use of the digital marketing, web hosting, design, and domain services, and all related products and services listed and available on earthlink.net and all subpages (collectively, referred to as the “Service(s)”). The Service(s) covered under this Agreement do not include EarthLink’s Internet services, which have their own Service Agreement and policies.
By establishing an account for the Services and/or using the Services, you agree to be bound by this Agreement and to use the Services in compliance with the Terms of Service and all applicable federal, state, and local laws, rules, and regulations. EarthLink may change its prices, fees, the Services, and/or the Terms of Service at any time, with or without prior notice, except as expressly provided in the Terms of Service. Your continued use of the Services after notice of the change shall be considered your acknowledgement and acceptance of the changes, and the most recent version of this Agreement controls your relationship with EarthLink and EarthLink’s provision of Services to you.
The current version of the Service Agreement and all incorporated documents may be found at earthlink.net. You may not modify this Service Agreement or the Terms of Service by making any typed, handwritten, or any other changes to it for any purpose. This is a binding legal document. If a portion of the Services is terminated, or any aspect of it is changed, any remaining Service or replacement Service will continue to be governed by this Services Agreement and the Terms of Service incorporated herein.
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, 8, 10, 11, 12, 13, 14 and 17 of this Agreement will survive the termination of this Agreement.
3. SERVICES NOT INTENDED FOR USE BY COVERED ENTITIES
Unless expressly set forth in the description of the Services, 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 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.
4. SUBSCRIPTION INFORMATION
To order and receive any of the Services, you acknowledge that you are at least 18 years of age or the age of majority in your jurisdiction, whichever is 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 or 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. EarthLink reserves the right to change or discontinue, with or without notice to you, (i) any of the features, content or applications of the Service or (ii) any of the features of the software or Equipment. If EarthLink makes a change that would have a material impact on your Service, it will use reasonable business efforts to provide you with notice of any such change. Your continued use of and subscription to the Service after notice of the change constitutes your acceptance of the changes and the associated terms and conditions.
When you purchased the Service, you agreed to a specific price and billing plan, which may have included a term for the Service of one or more years (“Term Plan”). Similarly, some plans may offer a discount on the Service if you sign up for other EarthLink services. You agree to maintain your Service and any bundled services for the duration of the Term Plan, as applicable. If you signed up for a Term Plan or a promotional deal, the price under the applicable plans is valid until one of the following events occurs, at which time the price of your Service may revert to the then-current price for such Service: (1) the term of your plan expires; (2) you change your current Service address to another Service address; (3) you drop any of the EarthLink services that you were required to purchase to receive a special rate; or (4) EarthLink exercises a right under this Agreement to terminate your Services.
6. BILLING AND PAYMENT
You agree to pay all charges associated with the Service, including, but not limited to, up front Service fees, charges for installation, service calls, monthly Service, Equipment purchases or leases, any applicable federal, state, local taxes and fees (however designated), fees to recoup any municipal, state, and federal government fees or assessments on EarthLink, permitted fees and cost recovery charges, or any fees for programs in which EarthLink participates. You shall pay all charges and all applicable fees and taxes by the due date as listed on your bill, which may be sent by multiple, separate invoices and/or exclusively by online presentation depending on the Service subscription and/or plan. All payments must be made in U.S. dollars. EarthLink will charge you a fee for each paper invoice.
You must provide accurate billing information including legal name, address, telephone number, and credit or debit number and expiration date, and report all changes to this information promptly to EarthLink. Payment methods, including credit card, debit cards, and checks will be stored by EarthLink for future use.
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 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.
You may incur charges from third-party service providers, such as for accessing online services, purchasing or subscribing to other offerings via the Internet, which are separate and apart from the amounts charged by EarthLink. You are solely responsible for all such charges payable to third parties, including all applicable taxes.
Upgrades to higher tiered Services or Service plans (e.g., from Do-It-Yourself Services to any of the Professionally Designed Service plans) will not incur any additional costs for upgrading, except for the difference in the monthly fees associated with the selected Service plan. Upgrades to any of the Digital Marketing Service plans without a Term Plan commitment (a “No Term Plan”) will incur additional costs. The full upfront cost will be due on the day you upgrade to a No Term Plan for any of the Digital Marketing Services. If you downgrade to a lower tiered Service or change your Service plan prior to the end of your Term Plan, you may be charged the applicable early termination fee. Any such upgrade or downgrade to a new Service or Service plan will take effect immediately and the new monthly fee will take effect as of the date of such change.
EarthLink reserves the right to change the fees associated with your Service or account and institute new fees upon email notice at least thirty (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.
6.1 Credit Check / Advance Payment & Deposits
By applying to purchase Services and by continuing to access the Services, you are granting EarthLink permission to obtain your credit information from consumer credit reporting agencies at any time. If we determine that you may be a credit risk due to: (1) unsatisfactory credit rating; (2) insufficient credit history; (3) fraudulent or abusive use of EarthLink Services within the last five years; or (4) late payments for current or prior bills, we may refuse to provide the Services or we may require an advance payment, a non-refundable payment, and/or a deposit. Interest will not be paid on advance payments or deposits unless required by law. If you are delinquent in any payment to us, you also authorize us to report any late payment or nonpayment to credit reporting agencies.
6.2 Recurring Automatic or One-Time Payment by Electronic Payment Terms
If you provided EarthLink with a valid credit card 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 charge or deduct your Service fees and any other charges, fees, or taxes billed to you, from your credit or debit card or your checking or savings bank account, then you hereby reaffirm your agreement to the Automatic Payments Authorization, which is incorporated herein by reference. 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 stored credit or debit card information. You have the right to revoke the recurring automatic payment arrangement with EarthLink at any time. Any revocation of your authorization to pay the EarthLink bill through an automatic payment arrangement will not take effect until after receipt by EarthLink, and will result in the discontinuance of automatic bill payment(s). After cancelation of automatic payment bill arrangement, you will be responsible for taking appropriate action each month to pay the EarthLink bill.
6.3 Payment by Check
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 by check. 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.
6.4 Suspension/Disconnection for Non-Payment
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 deactivated if you put a stop payment on your account with your financial institution in connection with the payment of your bill.
6.5 Billing Disputes
All charges are considered valid unless disputed within thirty (30) days of the billing date. Customers may call 844-356-5249 to dispute any charges on their billing statements. Adjustments will not be made for charges that are disputed more than thirty (30) days after the billing date.
6.6 Collection Costs
EarthLink may use various means to recover monies due. If EarthLink retains a collection agency or takes legal action to collect monies due on your account, you agree to pay all costs and expenses of collection incurred by EarthLink, which may include reasonable attorney’s fees and collection agency fees which may be based on a percentage of the amount owed, up to a maximum of 25%, where permitted by applicable law.
7. CANCELLATION AND TERMINATION
For specific cancellation information pertaining to your Services, please review the welcome email you receive as confirmation of your Services order. You may request cancellation of your Services as follows:
EarthLink does NOT accept cancellations by any method other than by telephone. You may verbally request a confirmation number from our customer service agents over the phone. EarthLink will confirm cancellation of your Services by email. 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.
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 the Services 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, owned by you. 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 the 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 Services are 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. 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.
Additional charges, terms, and/or restrictions may apply if you cancel one or more of your Services with EarthLink, and additional charges, terms, and/or restrictions may apply if you cancel one or more of any Services that form part of a Service package or bundle. If you cancel your EarthLink account or if your EarthLink account becomes inactive for any reason, such as lack of timely payment or abuse, all your Services will be canceled. If your account is canceled by you or terminated by EarthLink, it cannot be reactivated. Cancellation of your account at any time will not excuse you from paying all accrued and unpaid charges due under this Agreement. After your account cancellation date, you also will be responsible for any unbilled charges.
7.1 Early Termination Fee
If you have a Term Plan and your Service is canceled by you or by EarthLink prior to the end of the fixed period in your billing plan and your billing plan includes an early termination fee, EarthLink will bill you the early termination fee set forth in your billing plan. In certain situations, EarthLink may waive the early termination fee, at its discretion, if (i) EarthLink no longer provides the Service to your current location, (ii) you live in an area currently deemed a weather or war disaster area, or (iii) you were deployed for active military service.
8. YOUR ACCOUNT, PASSWORD, AND SECURITY
Upon registration, you will receive a username, a 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.
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.
9. 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.
10. DISCLAIMER OF WARRANTY
THE SERVICE AND EQUIPMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR GUARANTEES OF ANY KIND. EARTHLINK AND ITS SUPPLIERS, AND VENDORS DO NOT WARRANT THAT (i) THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (ii) THE SERVICE AND/OR SOFTWARE OR EQUIPMENT WILL MEET YOUR REQUIREMENTS; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, SOFTWARE, AND/OR EQUIPMENT WILL BE ACCURATE OR RELIABLE; AND (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE, SOFTWARE, AND/OR EQUIPMENT WILL MEET YOUR EXPECTATION. EARTHLINK AND ITS SUPPLIERS, AND VENDORS MAKE NO EXPRESS WARRANTIES REGARDING THE SERVICE, SOFTWARE, AND THE EQUIPMENT, AND WAIVE ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE, EQUIPMENT, AND/OR SOFTWARE IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EARTHLINK OR THROUGH OR FROM THE SERVICE, EQUIPMENT, AND/OR SOFTWARE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
11. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT EARTHLINK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS AND VENDORS (COLLECTIVELY “EARTHLINK PARTIES”) WILL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS IN CONNECTION WITH THE SERVICES RESULTING 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; OR (X) ACCURACY, COMPLETENESS, AND USEFULNESS OF ANY THIRD PARTY PRODUCTS, SERVICES OR INFORMATION OR THE MERCHANTABILITY OF SUCH ITEMS (INCLUDING ANY SUCH ITEMS OFFERED THROUGH CO-BRANDED WEB SITES LINKED FROM THE EARTHLINK WEB SITES). 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 EARTHLINK PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR (I) YOUR FAILURE TO PROPERLY INSTALL, USE OR OPERATE THE EQUIPMENT OR (II) ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY OF YOUR DEVICES, SOFTWARE, FILES, DATA, PERIPHERALS OR PROPERTY DUE TO YOUR INSTALLATION, ATTEMPTED INSTALLATION, USE, REPAIR OR REMOVAL OF ANY EQUIPMENT OR SOFTWARE.
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).
13. GENERAL LICENSE AND USE OF THE SERVICES
The names of EarthLink, EarthLink Business, 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 20.2, found on the EarthLink’s online control center that you can access after you log into control.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 or cancellation of Services.
You agree to use the Services only for lawful purposes. You are solely responsible for the content, materials, files, data and links on your website, including, without limitation Additional Content on Your Website, as defined below. 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.
Your use of the Service is subject to EarthLink’s Acceptable Use Policy (“AUP”), which may be viewed at earthlink.net/tcs and is hereby incorporated into the Agreement. In accordance with the AUP, EarthLink reserves the right to deny, disconnect, modify, and/or terminate, without notice to you, your Service if your use of the Service violates the AUP. Examples of violations of the AUP include, but are not limited to: (i) unlawful activities, (ii) violation of intellectual property rights, (iii) publication or dissemination of threatening material, (iv) inappropriate interaction with minors, (v) Spam/Email abuse, (vi) uses which are harmful to or interfere with the use of EarthLink’s network or its systems, or the network of any other provider, (vii) uses which interfere with the use or enjoyment of the Services received by others, and (viii) uses that constitute a security risk or a violation of privacy. In addition, EarthLink reserves the right to terminate or suspend the Service when EarthLink reasonably determines that your use of the Service (including use by others under your account) may expose EarthLink to sanctions, prosecution, civil action or other liability.
14. ELECTRONIC COMMUNICATIONS AND PHONE COMMUNICATIONS
14.1 Electronic Communications
You consent to receive notices, documents, disclosures and other communications from EarthLink about your account or the Service (“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 receive Communications from EarthLink electronically or if you withdraw your consent to receive such Communications electronically, 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.
14.2 Phone Calling and Texting
In addition, you hereby agree that your use of any Service constitutes your express written consent to receive automated and manually dialed informational calls, text messages and pre-recorded messages at the phone number(s) that you provide EarthLink in connection with your subscription to or use of the Service(s). Consent to receiving autodialed calls, text messages, and/or pre-recorded messages from EarthLink is not required to purchase products or services from EarthLink.
14.3 Changing Your Contact Preferences
You may exercise your option not to receive any marketing communications from and/or automated or manually dialed calls, text messages and pre-recorded messages from EarthLink by going directly to myaccount.earthlink.net or calling EarthLink customer service. You also may text STOP in response to any text message from EarthLink to stop receiving text messages from EarthLink.
15. CUSTOMER AND TECHNICAL SUPPORT
Your customer support contact may vary depending on the Service(s) you purchased. For customer and technical support call EarthLink toll-free number at 844-356-5249.
For specific billing questions, login to “my account” at myaccount.earthlink.net.
EarthLink provides technical support in connection with the features and Tools available for any EarthLink Web Hosting Service.
16. GOVERNING LAW
This Agreement and any claim or action related directly or indirectly to this Agreement shall be governed by the laws of the State of Georgia, whether sounding in contract or in tort or any other legal theory, without regard to the conflict of law provisions.
17. DISPUTE RESOLUTION BY BINDING ARBITRATION (INCLUDING IMPORTANT INFORMATION FOR CALIFORNIA RESIDENTS)
PLEASE READ THE FOLLOWING PROVISIONS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. This Agreement requires the use of arbitration to resolve disputes and otherwise limits the remedies that are available to you in the event of a dispute.
Most subscriber concerns can be resolved by calling EarthLink’s customer service for support. 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: EarthLink, LLC, 980 Hammond Drive NE, Suite 400 Atlanta, GA 30328, Attn: Legal Department (Arbitration) (“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, 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 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 dated December 1, 2020.
17.11 Notice to California Residents
California residents are entitled to the following information:
The Service is provided by EarthLink, LLC, 980 Hammond Drive NE, Suite 400 Atlanta, Georgia 30328. 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 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 for any reason by posting the revised version of this Agreement on the EarthLink Website located at earthlink.net/tcs
The revised version will be effective on the date that it is posted as stated at the end 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.
20. SECTION 20 APPLIES ONLY TO EARTHLINK’S WEB HOSTING & WEB DESIGN SERVICES
20.1 Hosting Your Website
EarthLink will host your website according to the terms of the Service(s) selected by you, provided that you comply with the terms and conditions set forth in this Agreement (“EarthLink’s Web Hosting Services”). EarthLink will provide email boxes, web hosting storage and associated services as specified in the Service(s) 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 EarthLink’s Web Hosting Services. EarthLink reserves the right to change or reject any of the features, content or applications of or relating to EarthLink’s Web Hosting Services at any time with or without notice to you.
20.2 Access to Server-Ready EarthLink Digital Content
EarthLink’s Web Hosting Services 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, 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 EarthLink’s Web Hosting Services and in accordance with this Agreement.
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 EarthLink’s Web Hosting Services. The Server-Ready EarthLink Digital Content will only function on EarthLink’s servers.
20.3 Specific Terms for EarthLink’s Web Design Services
If you signed up for any of EarthLink’s Web Design Services, EarthLink will send you one or more emails with: (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. You must complete the Website Specification Summary Form in order to proceed to the website design process.
An EarthLink website consultant (“EarthLink Website 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 Website 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 Website Consultant will design your website (“Created Website”) based on the information you provided in your completed Website Specification Summary Form.
The EarthLink Website Consultant will provide the first draft of the Created Website to you in the website design Tool used and will provide you a link for you to access for review. For thirty (30) days after the first draft of the Created Website is posted, you can work with the EarthLink Website 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 website design Tool used until you approve it or there is a loss of communication. After launch, the Created website will be published on the EarthLink server. If you want an EarthLink Website Consultant to make additional changes to your website after your website launch, your plan will specify whether you have maintenance time available each month for the duration of your contract. Maintenance minutes are subject to use during their assigned month when generated and are not transferable. Any unused Maintenance minutes will not roll over to the next month.
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 any of EarthLink’s Website Design Services, the content for your website provided by EarthLink’s Website Design Services and any supplemental software code and supporting materials provided as part of the support services for EarthLink’s Website Design Services (collectively, the “Website Design 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 Website Design 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 Website Design Service Materials in a web page design whereby the Server-Ready 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 Server-Ready 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 Server-Ready EarthLink Digital Content or the Website Design Service Materials or any part thereof; (iii) use the Server-Ready 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 Server-Ready EarthLink Digital Content or the Website Design Service Materials; or (v) rent, lease, assign, transfer or redistribute the Server-Ready EarthLink Digital Content or the Website Design Service Materials.
20.5 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 Website Design 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 reserves the right to reject any Additional Content on Your Website at any time with or without notice to you.
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.
20.6 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.
20.7 Data Transfer and Storage Limits
Your plan will set forth any monthly data transfer and storage limits for your EarthLink Web Hosting Service. The Control Center provides you with usage data on your bandwidth (data transfer) and disk space (storage). EarthLink will send you a warning message email that your monthly data transfer is approaching its limit and you will be charged overage fees if your monthly data transfer exceeds its limit. 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.
20.8 Restrictions of Use
You will not attempt to undermine the security or integrity of EarthLink’s Web Hosting Services 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 EarthLink’s Web Hosting Services 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.
21. SECTION 21 APPLIES ONLY TO EARTHLINK’S DOMAIN NAME REGISTRATION SERVICE
The Internet Corporation for Assigned Names and Numbers (“ICANN”) develops and implements policies regarding the registration and renewals of domain names (“ICANN RULES”). Only ICANN accredited registrars can register and renew domain names. EarthLink provides the EarthLink Domain Name Registration Service through the domain registrar services provided by OpenSRS (“Registrar”) which is an ICANN accredited registrar, and as such you agree that EarthLink is limited to providing the EarthLink Domain Name Registration Service in accordance with the terms located at opensrs.com. Registrar and EarthLink are bound by the ICANN Rules. EarthLink may modify this Agreement in order to comply with changes or updates to the ICANN rules.
Under the ICANN Rules, you have the rights and responsibilities set forth on the ICANN webpage located at icann.org/resources/pages/benefits-2013-09-16-en.
The Uniform Domain Name Dispute Resolution Policy (the “UDRP”), as amended from time to time, has been adopted by ICANN and is hereby incorporated and made a part of this Agreement and can be found at icann.org/resources/pages/policy-2012-02-25-en (last visited Feb. 28, 2020). The UDRP sets forth the terms and conditions in connection with a dispute between you and any party other than EarthLink or Registrar over the registration and use of a domain name registered by you. UDRP has been adopted by all ICANN-accredited registrars.
21.2 How to Register Your Domain Name
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 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 Registrar arising out of or related to your application for, registration of, renewal of, or failure to register or renew a particular domain name.
21.3 Registration Requirements for TLDs
EarthLink registers and manages the following top level domains (“TLDs”) for new customers: .com, .net, .org, .biz, .asia, .club, .info, .mobi, .name, .tel, .us and .cc. EarthLink also manages the .ca TLD for existing customers. A summary of the registration requirements for these TLDs is set forth below.
There are no restrictions on who may register the following: .com, .net, .info, .tel and .cc.
The .org TLD and the .club TLD are restricted to groups, organizations, assemblies, and communities.
The .name TLD is the only global TLD authorized by ICANN exclusively for private individuals. Registration of .name TLD must include a personal name which is either a person’s legal name or a name by which that person is commonly known. “A name by which a person is commonly known” includes, without limitation, a pseudonym used by an author or painter, or a stage name used by a singer or actor.
The .asia TLD is restricted to companies, organizations, and individuals based in the region of Asia, Australia, and the Pacific.
If you are registering the .biz TLD, you agree that as of the date your register you domain, your registered domain will be used primarily for a bona fide business or commercial purpose. A bona fide business purpose 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.
The .mobi TLD is limited to mobile-compatible sites.
The .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 acknowledge and agree that you have a presence in the United States and that you are not permitted to purchase private or proxy .us registrations.
The .ca TLD is restricted to companies, organizations, and individuals with a presence in Canada. If you have a .ca TLD registered, you acknowledge and agree that you have a presence in Canada as defined by the Canadian Internet Registration Authority (“CIRA”) and that you shall continue to be subject to the CIRA’s registrant agreement that can be found at www.cira.ca.
More detailed information about the registration requirements of the above TLDs can be found at opensrs.com/resources/documentation.
Your domain name application process will not be effective until the domain name registration information you provide to EarthLink is delivered to Registrar and Registrar puts into effect your domain name registration.
21.4 WhoIs Information
You are required by ICANN, Registrar and EarthLink to provide the following contact information for each of your domain name registrations (“WhoIs Information”):
For each of the categories listed above, you are required by ICANN to provide (i) first name, (ii) last name, (iii) company or organization, if applicable, (iv) street address, (v) city/state/country, (vi) zip code, (vii) email address and (viii) telephone number. ICANN also requires you to update your WhoIs Information as needed to keep it current, complete and accurate. EarthLink will provide your WhoIs Information to Registrar to process the registration or renewal of your domain name. You acknowledge that Registrar may use certain of your WhoIs Information provided by EarthLink regarding your domain name registration or renewal in a manner consistent with Registrar’s Domain Name Registration Agreements .
As required by ICANN, your WhoIs Information will be publicly available and accessible through a domain name search unless you choose to pay for EarthLink’s domain contact privacy service which masks the identity of the registrant on the public WhoIs directory. If you subscribe to EarthLink’s domain name privacy service, the WhoIs Information associated with your domain name on the public WhoIs directory will appear as Contact Privacy, Inc. with the address and telephone number of the Registrar and a proxy email address. Emails sent to the proxy address will automatically be forwarded to your Registrant Contact email address without revealing it to the public.
You hereby waive any and all claims and causes of action you may have arising from disclosure of the WhoIs information provided by you to EarthLink.
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 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 by telephone or using the Control Center. If this annual email from Registrar bounces back, the “WhoIs Accuracy Program” verification process will be triggered and you will receive an email from Registrar asking you to verify your email address within 15 calendar 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 be displayed on the Internet until the verification process has been completed.
Unless EarthLink receives alternate instructions from you at least two (2) months prior to the domain name renewal date, EarthLink will automatically bill you for your domain name renewal at the then-current renewal fee on your monthly billing date two months prior to the domain name renewal date. EarthLink will use your method of payment on file.
EarthLink will renew your domain name registration on the domain name renewal date for the same period of time as the period of time of your original registration term provided that your renewal fees have been paid. For example, if your original registration term was one year, then EarthLink will renew your domain name registration for a one year renewal term.
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 any fees associated with any purchased EarthLink Services, as applicable, or your EarthLink account has gone into suspended or inactive status or is otherwise not in good standing, EarthLink will not renew your domain name. If your EarthLink account is brought back to active and in good standing status after the registration of your domain name has expired, EarthLink will not be responsible for renewing the expired domain name registration.
Registrar allows a grace period for registrants to renew expired domain names after the actual expiration date. The number of days in the grace period varies by domain name extensions. After the grace period expires, Registrar will place your expired domain name into redemption status for a certain period of time which would allow you to reclaim your domain name and renew its registration upon payment of a redemption fee in addition to the renewal fee. Before the domain name expires, attempts will be made to email the Registrant Contact email address.
If your domain name is not renewed during the grace period or the redemption period, it will be released to the general public. After your domain name is released to the general public by the Registrar because it was not renewed, EarthLink will no longer be able to purchase or manage your domain name. EarthLink then will remove your domain name from EarthLink’s domain management system.
21.6 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.
After EarthLink sends your new registration to Registrar, 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 and following the verification steps. Registrar will consider your domain name registration verified after you completed the verification steps. If you do not verify your email address within such 15 calendar day period, the DNS for your domain may be updated to point to the Registrar’s servers and your website will not resolve which means that your website will not be displayed on the Internet until the verification is completed. 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 and your website will be displayed.
Upon termination of EarthLink’s relationship with 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 contact information to EarthLink, to expedite such transfer process, EarthLink will notify you that your administrative contact information and/or your organization’s contact information will be changed to EarthLink for the 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 contact information back to your original administrative contact information and/or your original organization’s contact information. The new registrar will contact you via email with a confirmation link for you to verify the domain transfer from Registrar to the new registrar. If you do not verify this domain transfer to the new registrar within such 15 calendar day period, the DNS for your domain may be updated to point to the Registrar’s servers and your website will not resolve which means that your website will not show up on the Internet until the verification is completed. In such case, you must call EarthLink to request that we send you a new verification email. After you verify your email address, the DNS will be repointed to your domain.
If you decide to transfer the registration of your domain name that has been recently renewed through the EarthLink Domain Name Registration Service to another domain name registration reseller or directly with another registrar, there is the potential that the renewal year will be lost.
21.7 Approval Process for Your Changes to your WhoIs Information
ICANN’s Transfer Policy establishes the appropriate procedures for domain name holders to transfer their names from one ICANN-accredited registrar to another. The Transfer Policy also covers the approval procedures for (i) updates to any of the following fields in a registrant’s WhoIs Information: first name, last name, organization or email address or (ii) changing ownership of the domain name from the current registrant to another registrant. Such changes are collectively referred to as “Changes”. The Transfer Policy is subject to change, and you should visit www.icann.org to obtain the latest version.
If you are the current registrant of a domain registered through the EarthLink Domain Name Registration Service, you will receive an email directly from the Registrar asking you to confirm the Changes. During the confirmation process you will have the option to check a box to “waive the 60-day transfer lock”. Under the ICANN Transfer Policy, if you do not check this box, your domain will be locked for 60 days and the domain registration cannot be transferred to another registrar during the 60 day period.
The ICANN Transfer Policy allows new registrants to delegate their consent to the Changes to a third party as a designated agent (“Designated Agent”) to confirm the Changes. If you are the new registrant of a domain registered through the EarthLink Domain Name Registration Service, you will receive an email directly from the Registrar with a link for you to confirm or not confirm that you are the new owner of this domain. If you confirm that you are the new owner of this domain, you will have the option to check a box whereby you authorize the Registrar to act as you Designated Agent to confirm Changes for your domain on your behalf.
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.
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 or debit card or other method of payment will be billed. If your original credit or debit card has expired or is otherwise invalid, you must contact EarthLink with a valid credit 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 will not be renewed.
21.9 Additional Information Maintained
In addition to your WhoIs Information that you provide to EarthLink and EarthLink then provides to Registrar on your behalf, EarthLink maintains records relating to the EarthLink 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 EarthLink Domain Name Registration Service.
21.10 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 the .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 to inquiries by EarthLink concerning the accuracy of the WhoIs Information associated with your domain name registration within 15 calendar days from the date that the email from EarthLink was sent to you will constitute a material breach of this Agreement and will be sufficient basis for cancellation of your domain name registration.
21.11 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, the EarthLink Domain Name Registration Service and other EarthLink 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 EarthLink Domain Name Registration Service. EarthLink does not have any ownership interest in your WhoIs Information or other information other than EarthLink’s rights in its domain name database as set forth in this Section 21.11.
21.12 Agent for the Registrant
You agree that, if you are using the EarthLink Domain Name Registration Service for another party, you represent that you have the authority to nonetheless bind that party as a principal to all terms and conditions provided herein including, but not limited to, the approval process for any Changes. You accept liability for harm caused by wrongful use of the EarthLink 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.
21.13 System Performance Degradation
EarthLink’s delivery of the EarthLink 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.
21.14 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.
21.15 Additional Disclaimers, Limitations of Liability and Indemnification regarding the EarthLink Domain Name Registration Service
In addition to the terms set forth in Section 10, Disclaimer of Warranty, Section 11, Limitations of Liability, and Section 12, 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 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 any EarthLink 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 EarthLink 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.
22. SECTION 22 APPLIES ONLY TO EARTHLINK’S LOCAL DIRECTORY LISTING SERVICES
Your plan or Services may include EarthLink’s Local Directory Listing Service (the “Local Directory Listing Service”), which provides a real-time online directory service by submitting your business location data to online directories via EarthLink’s directory partners. To be included in such online directories, you must provide EarthLink with current location data pertaining to your business, including but not limited to: a business name, address, phone number, email address, website URL, description of services offered, videos, images, brands, and a business logo (“Client Location Data”). You must have a physical mailing address, not a P.O. Box. If you provide EarthLink with a residential address for your business, it is your responsibility to notify EarthLink to hide the address to avoid it being publicly displayed. Unless multiple locations are purchased, your directory listing will only include one business location
To render its Services, EarthLink will distribute Client Location Data to its directory partners so that they may include such information in their online directories. EarthLink may from time to time and in its sole discretion change directory partners. You acknowledge that EarthLink cannot guarantee publication and advertisement of the Client Location Data at all times for all directory partners. EarthLink is not liable for any loss or damage, or loss of profits or revenues, caused by any actions of the directory partners when providing its Local Directory Listing Service to you.
It is your responsibility to provide to EarthLink all necessary documents, information, and materials in the requested format to perform the Local Directory Listing Services. You acknowledge that EarthLink and its directory partners do not support all formats and that some information may be unable to be displayed due to the technical requirements of some directory partners. You shall ensure that the transmitted information is free of errors. EarthLink is not liable to you for any loss or damage, or loss of profits or revenues caused by the processing of documents, information or materials containing errors or incomplete information. It is your responsibility to ensure that (i) the Client Location Data and any additional information provided are free of any third-party rights, encumbrances or interests, and are suitable for integration in all of the directory partners’ products; (ii) the Client Location Data contain neither viruses, spyware, nor other harmful source codes or materials; (iii) you have obtained, and will maintain, all consents, approvals, permits, and releases necessary to fulfill the obligations under this Agreement; (iv) you will not violate any third-party rights by performing hereunder, including but not limited to intellectual property rights, and that any existing obligations or agreements do not contradict or hinder such rights; and (v) the Client Location Data are in no way illicit, harassing, obscene, or pornographic, does not glorify violence, endanger youth or violate third-party rights, and are not otherwise inappropriate. EarthLink, in its sole discretion, may refuse to process any Client Location Data, documents, information and/or materials.
23. SECTION 23 APPLIES ONLY TO EARTHLINK CONNECT SERVICES
If your plan or Service includes EarthLink Connect, EarthLink will provide the following Services to you:
24. SECTION 24 APPLIES ONLY TO EARTHLINK’S CUSTOM LOGO DESIGN SERVICES
EarthLink’s custom logo design and tagline creation service (“Logo Design Service”) provides an interactive process where you will work with EarthLink’s design experts to create a final design project. EarthLink does not have a duty and does not generally screen or edit content submitted by you during the design process. EarthLink, however, reserves the right to refuse its Logo Design Service, monitor or remove, without notice, any content for projects which, in its sole discretion, it deems to be illegal, misleading, obscene, vulgar, in breach of any third-party rights or otherwise in breach with the terms and conditions of this Agreement.
EarthLink does not guarantee that any logo designed through the Logo Design Service will not be similar to logos designed by EarthLink for other customers. Apart from your logo or tagline as a whole, you acknowledge that you have no right or claim of any kind to any individual design elements or creative content of the logo or tagline. EarthLink reserves the right to use one or more of its design elements in projects for other customers.
During the design process, you may provide EarthLink with text, images, photographs, graphics, sound, video, and other information (“User Content”) for use in creating your logo and/or tagline. You warrant and represent that you have all necessary rights to provide such User Content, and that the User Content does not violate the intellectual property rights of any third party. You grant EarthLink a worldwide, royalty-free and non-exclusive license (including moral rights) to use, distribute, reproduce, modify, adapt, publicly perform, and publicly display User Content in any form, media, or technology now known or later developed in order to provide the Logo Design Service to you.
You agree to back-up all of your User Content so that you can access and use it when needed. EarthLink does not warrant that it backs-up User Content, and you agree to accept as a risk the loss of any and all of your User Content. You agree to indemnify and hold EarthLink and its subsidiaries and affiliates and its and their officers, directors, employees, partners and agents, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of EarthLink’s use of User Content.
You agree to provide timely responses to any status notifications sent by EarthLink to you regarding the Logo Design Service. You shall have thirty (30) days to respond to each EarthLink notification. If you fail to respond, EarthLink shall assume that the project is complete. Upon completion of the final project, EarthLink shall have no further obligation to you and any outstanding fees pursuant to this Service under this Agreement become due and payable. Notwithstanding the foregoing, we reserve the right, in our sole discretion, to terminate your access to all or a portion of the Service, at any time, with or without notice.
Subject to your compliance with this Agreement, you shall own the final project created through the Logo Design Service. You shall not have any ownership rights in any materials, media, or other content generated during any revision cycles that led up to the final project’s completion. EarthLink expressly reserves all rights, title, and interest in and to such materials. EarthLink retains all rights to all artwork concepts and other content not selected by you in the final project. You acknowledge that your ownership rights under this Agreement are limited to the final project, and that no trademarks or service marks in or to any final project are being conveyed under this Agreement.
You acknowledge and affirm that EarthLink has no obligation or duty to perform any trademark, service mark, or copyright clearance searches, inquiries, or the like, in order to validate the propriety or legality of the final project. You acknowledge that EarthLink shall have no responsibility or obligation to assist you in seeking any state or federal intellectual property protection, including, without limitation, any trademark or copyright registration for any final project. EarthLink shall not be responsible and have no obligation to assist you in any way in your attempt to perfect your rights in or to the final project. It is your sole responsibility to determine if the logo or tagline is suitable and appropriate for your use and to obtain the advice of an attorney or other suitable professional regarding whether or not the logo or tagline is legally available and/or if it infringes the rights of any third party. You are encouraged to perform your own independent searches with regard to the final project and to consult with an attorney prior to using any logo or tagline in commerce.
Effective Date: June 2, 2021