EarthLink Master Service Agreement

Effective Date: April 1, 2024

THIS MASTER SERVICE AGREEMENT (“MSA” or “Master Service Agreement”) GOVERNS YOUR USE OF EARTHLINK’S SERVICES AND INCLUDES A BINDING ARBITRATION PROVISION IN SECTION 19, 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. THESE TERMS APPLY TO THIS MSA AND ALL THE SERVICES DESCRIBED IN THE SCHEDULES HERETO.

1. Agreement

This MSA is between EarthLink, LLC and its related entities (“EarthLink”), and you (the “Subscriber” or “you”). This MSA governs your use of EarthLink’s services, including internet services (“Internet Services”) and all products, features, and software and mobile applications (individually and collectively, referred to as the “Service(s)”). The EarthLink Business Digital Marketing Solutions, Web Hosting and Domain Name Management Services have their own service agreement which is included in this MSA as Schedule 6 hereto business.earthlink.net/digital-marketing. Except as otherwise expressly set forth at Schedule 6, those Services are not subject to the terms applicable to EarthLink’s Internet services, which are included in Schedules 2 through 5 of this MSA.

The complete EarthLink customer terms of Service consist of the following: this MSA, as well as any Service-specific Schedules, any billing plan terms for your Service, EarthLink’s Acceptable Use Policy, and EarthLink’s Privacy Policy, which can be found at earthlink.net/tcs, (collectively, “Terms of Service”) and are incorporated herein by this reference. In the event of any conflict between this MSA and the Service-specific Schedules or the terms of your billing plan, the Service-specific Schedules shall control. If you do not wish to be bound by these Terms of Service, you should immediately stop your use of the Service and notify EarthLink’s Customer Service Department, which contact information can be found here earthlink.net/about-us/contact, to terminate the Service.

For more information about particular Services covered by this MSA, please see the following Service-specific Schedules:

• Schedule 1 – List of EarthLink Services
• Schedule 2 – High-Speed Internet and DSL Service
• Schedule 3 – Online Backup Service
• Schedule 4 – Wireless Home Internet Service
• Schedule 5 – Business Services
• Schedule 6 – EarthLink Business Digital Marketing, Web Hosting and Domain Service Agreement

By establishing an account, ordering, and/or using the Service, you agree to be bound by this MSA and to use the Service in compliance with the terms of this MSA and all applicable federal, state, and local laws, rules, and regulations. EarthLink may change its prices, fees, the Service and/or the Terms of Service at anytime. Your continued use of the Service after notice of a change shall be considered your acknowledgement and acceptance of the change. Such notice may be either posted on the EarthLink website at earthlink.net/tcs, or provided to you by a letter sent via U.S. mail, a notice on your monthly bill, or an email sent to your Contact Email Address.

EarthLink regularly updates and amends these Terms of Service, and the most recent version of these Terms of Service shall control your relationship with EarthLink and EarthLink’s provision of Service to you. You must frequently consult EarthLink’s website to ensure that you remain in compliance.

Our obligations are subject to any applicable law, rules or regulations, and any of our or our affiliates’ tariffs or tariffs of third parties we contract with, and in the event of a conflict between the terms of any applicable tariff, rule, or regulation and these Terms of Service, the tariff, rule, or regulation controls with respect to the conflicting provision, but all non-conflicting provisions of these Terms of Service continue to apply.

2. Terms of this Master Service Agreement

For new subscribers, the effective date of this MSA is the date on which you subscribed to the Service. Otherwise, for current Subscribers who continue to use the Service(s), the effective date of this MSA is April 1, 2024. This MSA continues in effect until termination and/or cancellation of your Service or until it is superseded by an updated document.

3. Service Information

To order and receive the Service, you acknowledge that you are at least eighteen (18) years of age or the age of majority in your jurisdiction, whichever is older, that you reside in the United States, and that you have legal authority to enter into this MSA. You must provide EarthLink with (i) a valid credit or debit card or other EarthLink approved payment method for the Service; (ii) your U.S. billing address; and (iii) your U.S. shipping address, if different from your billing address, for shipping any Equipment (as defined in Section 6 below), if applicable. 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 reserves the right to verify the accuracy of the information you submit in connection with your subscription to the Service and you consent to such verification. EarthLink also reserves the right to validate the payment method information you provide at subscription and account updates. Such validation may include EarthLink’s submission of a temporary authorization in an amount up to the actual cost of your Service, which is not actually billed, to verify the validity of your credit or debit card.

EarthLink may accept or reject any potential Subscriber to the Service in its sole discretion. EarthLink’s Services are not available in all areas and EarthLink cannot guarantee that the Service can be provisioned to your address, even if it has accepted your order. Because of the complex nature of Service, availability and the underlying infrastructure, it may not be possible to provide the Service to everyone. In its sole discretion, EarthLink may cancel the installation process and refund any money that you have paid. EarthLink will notify you of its intent to cancel as soon as reasonably possible. 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 Equipment. If EarthLink makes a change that would have a material impact on your Service, it will use reasonable commercial 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.

EarthLink offers a number of additional Services that you may purchase or subscribe to in addition to the underlying basic EarthLink Services you use such as high-speed internet. We refer to these as “Added Services.” These Added Services may include supplemental services such as search engine assistance, on-line reputation management, remote IT support, added security, data back-up services and streaming services.

EarthLink will add additional Added Services when it deems appropriate and may occasionally cease offering one or more Added Services. Therefore, check our website for the most current list of Added Services and prices.

All the terms of this MSA as well as the EarthLink Privacy Policy and Acceptable Use Policy apply to Added Services. By subscribing to and/or using any of our Added Services, you agree to all the applicable terms and conditions.

One or more Added Services may not be available in all EarthLink service areas.

4. Usernames & Passwords, Security

You are responsible for maintaining the confidentiality of both your EarthLink accounts, usernames and passwords. In addition you are responsible for controlling access to any personal computers, mobile devices, gateways, or other end points that you allow to store your password, or on which you enable a “Remember Me” or similar functionality. Accordingly, you agree that you will be solely responsible to EarthLink for all activities that occur under your EarthLink accounts, including the activities of any individual with whom you share your account access, and will be responsible for any breach of this MSA caused by these activities. To protect your privacy, EarthLink recommends logging out of the Services after each visit when you are using a public or shared personal computer, mobile device, or other end point.

EarthLink does not permit credential sharing. You agree your account, usernames and passwords associated with your account: (i) shall be used only by you and members of your household whose primary residential address is the same as the premises at which your Services account is located; (ii) shall not be shared with any user other than members of your household for any reason (including, but not limited to, for accessing any third party video services and platforms); and (iii) shall be used only on devices used by you or a member of your household primarily at the residential address location of the Services account. You agree you are responsible for maintaining the confidentiality and security of all usernames and passwords associated with your account, including those used by members of your household. You must notify EarthLink immediately upon discovering any unauthorized use of your Service and other breaches of security. You are responsible for obtaining and maintaining all computer hardware and communications equipment needed to access the Service (such as a desktop, laptop, notebook, tablet, or mobile phone) (each, a “Device”) and for any software responsible for protecting information on your Device, including responsibility for (i) maintaining the security of the Device and data including protection of your username and password, (ii) the encryption of data, (iii) back-up of your Device and data, and (iv) any WI-FI network you use in connection with the Service. EarthLink recommends that you use anti-virus, anti-spyware, and firewall software and that you update this software as recommended by the applicable provider. If you elect to use any of the forgoing protections, you will be responsible for any costs and fees associated with them.

5. Use of Service

You represent that when you transmit, upload, post or submit any content, images or data using the Service you have the legal right to do so and that your use of such content, image or data does not violate any law (including copyright or trademark laws) or any other third party rights. You agree that EarthLink has no responsibility for the accuracy, completeness, value or usefulness of any content, advice or opinions contained in any emails, third party websites, message boards, chat rooms, social networks or online services. The Internet may contain material that is unsuitable for minors, and you agree to supervise and to accept sole responsibility and liability for any use of the Service by minors through your account. EarthLink makes no guarantees as to the continuous availability of the Service or any specific feature(s) of the Service. The Service speed may vary depending on location, line quality, inside wiring, Internet traffic, and other factors beyond the control of EarthLink. EarthLink does not guarantee call quality, and/or upload or download speeds. Some line stabilization may be necessary for the Service. Stabilization could include the lowering of provisioned line speed. Should this occur, EarthLink will NOT be able to increase the line speed once the connection is stabilized. Some of the Services may only work using certain telephone carriers, telephony services or phone systems (including rollover/party line) phone systems. Some of the Services may require the use of specific hardware and/or software and may be limited by specific geographic location.

6. Equipment

6.1 EarthLink Equipment

All EarthLink-provided equipment distributed and/or installed for use in your service location(s) by or on behalf of EarthLink (“Equipment”) remains the property of EarthLink, except for any inside wiring and excluding certain Devices that you purchased from EarthLink outright or under an installment agreement or any other device ownership of which EarthLink has conveyed to you (e.g., modems, streaming devices). If you leased from EarthLink any Equipment in connection with your Service, the installation, use, inspection, maintenance, repair, and/or removal of the Equipment may result in Service outage or potential damage to your personal devices (e.g., your computer, tablet, smart phone). You are solely responsible for backing up all your existing computer files and data. You assume responsibility for impacts to or loss of any warranty associated with the opening of your personal device for any installation purposes.

You are also responsible for all inside wiring repair necessary to install the Equipment. If you are not the owner of the premises, you warrant that you have obtained the consent of the owner for EarthLink personnel and/or its agents to enter the premises for installation. You will indemnify and hold EarthLink, its officers, directors, employees, subsidiaries, affiliates, agents, suppliers, and contractors harmless from and against any claims of the owner of the premises arising out of the performance of this MSA.

Upon termination of Service, you are responsible for returning any Equipment that you leased from EarthLink within thirty (30) calendar days. All Equipment returns must have an EarthLink-provided shipping label and the original packaging (or equivalent). If Equipment is not returned within thirty (30) days, or is returned damaged, you may be charged a fee for failing to return such Equipment (a “Non-Returned Equipment Fee”). The amount of each Non-Returned Equipment Fee is described in Section 9 below.

In order to cover such Non-Returned Equipment Fee, EarthLink may retain any advance payment or deposit, or portion thereof that previously had not been refunded, if you fail to return the Equipment within this time period and charge you for any remaining balance owed.

If the Equipment was damaged due to your intentional acts, negligence, or use inconsistent with this MSA, as determined by EarthLink, you will be responsible for the price of repair or replacement of such Equipment. Any tampering with the Equipment, including, for example, opening and attempting to modify the Equipment, or attempting to connect the Equipment to other hardware, will be treated as damage due to your intentional acts or negligence. You agree that you will use the Equipment only for its intended use, and not for any other purpose (such as to access another provider’s service or network).

EarthLink, in its discretion, may replace EarthLink-provided Equipment due to a manufacturer’s defect, or any other reason EarthLink deems appropriate, at no cost to you, provided that you provide the EarthLink Technical Support Department with timely notice of such defect and comply with any instructions provided to you in connection with the return of the Equipment. Failure to return the defective Equipment will result in a Non-Returned Equipment Fee as well as a charge for the new EarthLink-provided Equipment.

6.2 Subscriber Property

EarthLink assumes no responsibility and shall have no responsibility for the condition or repair of any Subscriber-purchased Devices or Subscriber-provided equipment or software whether purchased from EarthLink or from third parties. You are responsible for the repair and maintenance of all Devices. EarthLink is not responsible or liable for any loss or impairment of Service due in whole or in part to a malfunction, defect or otherwise caused by Devices.

7. Restrictions Regarding Service

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 this MSA. 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.

The Services are provided for your use only (unless otherwise specifically stated) and you agree not to reproduce, duplicate, copy, sell, transfer, trade, resell, re-provision, redistribute, or rent the Service or any portion of the Service, whether for a fee or without charge.

8. Pricing

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 (1) 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 MSA to terminate your Services. If you terminate a Term Plan prior to the end of the agreed term of Service, you may incur an Early Termination Fee, as discussed in Section 10.1 below.

9. Fees; Billing and Payment

9.1 General

You agree to pay all charges associated with the Service, including but not limited to, 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 card 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.

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.

EarthLink reserves the right to change the fees associated with your Service, Equipment, or account and institute new fees (e.g., Non-Returned Equipment Fee) upon notice at least thirty (30) days prior to the effective date of such new fee. Any notice EarthLink provides may be provided by a letter sent via U.S. mail, a notice on your monthly bill, or an email sent to your Contact Email Address.

9.2 Specific Fees

You may be required to pay EarthLink certain fees in connection with the installation, use, lease, inspection, maintenance, or repair of your Equipment or Services, including a Non-Returned Equipment Fee, as set forth in the table below. EarthLink reserves the right to change the fees and institute new fees associated with the Service or Equipment at any time with or without prior notice.

Type of Fee	Amount
Non-Returned Equipment Fees	Up to $400.00
Processing, Handling and Installation Fees	Up to $400.00
Early Termination Fees	See Section 10.1 below
Late Payment Charge	Up to $10.00 per bill
Fee for Returned Check; Declined Charge	Up to $30.00 per check or transaction

9.3 Credit Check / Advance Payment & Deposits

By applying to purchase EarthLink’s 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’s Services within the last five (5) 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.

9.4 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.

9.5 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 billing invoice. EarthLink will charge a processing fee each time you pay your billing invoice by check. When you pay your fees by check, you authorize EarthLink to electronically process your payment. If your check is processed electronically, your checking account may be debited on the same day 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 you a fee for returned checks or returned bank drafts from your financial institution.

9.6 Late Payment Charge

You agree that for each bill not paid in full by the payment due date, a Late Payment Charge may be assessed of no more than $10 per bill (subject to applicable law and except as may otherwise have been expressly agreed in writing). Acceptance of late or partial payments (even if marked “Paid in Full”) shall not waive any EarthLink rights to collect the full amount due. You will also be charged a fee for each and any check or other instrument (including credit card charge backs) returned unpaid for any reason of no more than $30.00 per check or transaction (subject to applicable law and except as may otherwise have been expressly agreed in writing).

9.7 Collection Costs

EarthLink may use various means to recover monies due, including, without limitation, Non-Returned Equipment Fees. 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 attorneys’ 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.

9.8 Suspension/Disconnection for Non-Payment

Delinquent accounts may be suspended or canceled at EarthLink’s sole discretion if you fail to pay the full amount due for any or all charges. If you pay your Service fee to a third party provider, your account also may be suspended for non-payment if your account is delinquent. If your account is suspended, you may be charged reinstatement fees to reactivate your account.

9.9 Billing Disputes

All charges are considered valid unless disputed in writing within thirty (30) days of the billing date. Customers may call 888-327-8454 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.

9.10 Data Furnished to Credit Reporting Agencies

Please be aware that, EarthLink is a “data furnisher” which means that we report information about your payment and payment history to consumer reporting agencies (CRAs), which may include credit bureaus. Accordingly, your payment history with EarthLink may impact your credit rating.

9.11 Terms of Fees for Domain Name Registration Services Under Schedule 6 of this MSA

In connection with the domain name registration Services described in Schedule 6 to this MSA, 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, and you do not have an alternative valid payment method on file with EarthLink, 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.

10. Cancellation and Termination

You may cancel your Service only as follows:

• Telephone Cancellation (Residential Customers): 888-327-8454
• Telephone Cancellation (Business Customers): 844-356-5249

*Please have your account number and current telephone number available for account verification.

EarthLink does NOT accept cancellations by email. EarthLink does not grant refunds or credits for any prior use including partial use during the last month prior to cancellation. Certain charges, such as 411 and international calling charges, will be billed after the account cancellation date.

Cancellation will be effective by the end of the current billing cycle. If you cancel and are mistakenly billed for your Service after the end of the billing period, EarthLink will refund any erroneous charges upon proof of such cancellation.

In the event that you change to a different EarthLink Service or change the speed of your existing Service, consult with an EarthLink representative how such change will affect your billing plan. For fixed-location Service, such as DSL or Fiber Internet Service, moving to another location will require the Service to be re-provisioned at the new location. This may result in substantial interruption of the Service and will result in fees associated with cancellation and setting up a new account. If you move your Service or change your local telephone company and EarthLink can provide the Service at the new location or on the new telephone line, you must pay a reactivation fee because this change requires a new installation.

On the inactivation date of your Service, without further notice to you, your Service will be terminated and you will no longer have access, which includes access to your email, files or other information on EarthLink’s servers. Cancellation of your account at any time will not excuse you from paying all accrued and unpaid charges due under this MSA. After your account cancellation date, you also will be responsible for any unbilled charges, such as international calling and directory assistance charges.

EarthLink may terminate your account for the Service or any particular Service or Service(s) at any time for any reason, including, without limitation, if (i) EarthLink decides to discontinue offering such Service; (ii) your account is delinquent because charges on your method of payment were refused for any reason; (iii) 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; (iv) EarthLink, in its sole discretion, believes you have breached this MSA or any other EarthLink agreements or policies; or (v) your use of the Service is prohibited by law. A termination notice will be sent to you via your Contact Email Address or by U.S. Mail to the billing address for your EarthLink account. If your account for the Service is cancelled by EarthLink due to non-payment and then it is reactivated at a later date, EarthLink will bill you an account reactivation fee.

10.1 Early Termination Fee

If you have a Term Plan and your Service is canceled by you or by EarthLink for cause prior to the end of the fixed period in your billing plan and your billing plan includes a fee payable in the event of such termination (an “Early Termination Fee”), EarthLink will bill you the Early Termination Fee set forth in your billing plan. The amount of the Early Termination Fee, or the method such fee is calculated, are included in your Term Plan and vary from plan to 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.

11. Monitoring the Service

EarthLink has no obligation to monitor the Service but may do so to (i) comply with laws, regulations, or governmental or legal requests; (ii) protect the overall integrity of the Service (including the EarthLink network); (iii) operate the technical aspects of the Service in a proper, effective, and reasonable manner; (iv) protect itself, its employees, or others as described in the privacy policy; and/or (v) enforce or prevent breaches of this MSA or other EarthLink agreements or policies.

EarthLink may immediately remove your materials or any of your information from EarthLink’s servers, systems or networks in whole or in part, if EarthLink reasonably believes it infringes another’s property rights or violates EarthLink’s agreements or policies, or any laws or regulations.

EarthLink will use commercially reasonable efforts to schedule any maintenance outages in a way that minimizes the impact on subscribers; however, EarthLink cannot guarantee that your Service will not be interrupted and cannot always provide advance notice of such outages.

12. EarthLink’s Ownership, Intellectual Property

You acknowledge that the Service may include information, communications, code, software, photos, text, video graphics, sounds, images, logos, and other material and services that are owned, provided, and maintained by EarthLink or its providers (“EarthLink Content”). You agree and acknowledge that notwithstanding that EarthLink may permit access to and use of the EarthLink Content and that the EarthLink Content is protected by copyrights, trademarks, and proprietary rights. You may not copy, reproduce, distribute, or create derivative works from the EarthLink Content, unless expressly authorized by EarthLink.

You are also prohibited from infringing, publishing, submitting, copying, uploading, downloading, posting, transmitting, reproducing, or distributing software, video or audio content, or any other material that is protected by copyright, trademark, patent, trade secret, any other type of intellectual property rights, trademark laws, or other proprietary right of any party in connection with your use of the Services and/or Equipment unless you own or control the rights thereto or have received all necessary consent to do the same. This prohibition includes the use of any material or information including images or photographs that are made available through the Services. EarthLink assumes no responsibility, and you assume all risks, regarding the determination of whether material is in the public domain, or may otherwise be used by you for such purposes. We hereinafter refer to any software provided by EarthLink in connection with any Service or Equipment as “Software.”

13. 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 THIS MSA OR THE SCHEDULES THERETO.

14. 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 SERVICE AND THE EQUIPMENT RESULTING FROM: (I) AVAILABILITY OR QUALITY WITHIN THE COVERAGE AREA REGARDLESS OF THE CAUSE(S) OF THE PROBLEM; (II) OTHER USERS ACCESSING YOUR DEVICE; (III) VARIATIONS IN THE SPEED OR BANDWIDTH AVAILABILITY TO EACH DEVICE CONNECTED TO THE EARTHLINK NETWORK; (IV) SECURITY BREACHES; (V) EAVESDROPPING; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (VI) YOUR RELIANCE ON OR USE OF THE SERVICE; (VII) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE), DELETION OF FILES, ERRORS, OR DEFECTS REGARDLESS OF WHETHER YOUR DATA IS MAINTAINED ON THE EARTHLINK SERVERS OR YOUR DEVICE(S); (VIII) DELAYS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE OF THE SERVICE; (IX) USE OF THE SERVICE BY YOU OR A THIRD PARTY THAT INFRINGES A THIRD PARTY’S COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OTHER INTELLECTUAL PROPERTY, PROPRIETARY, 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 WEBSITES LINKED FROM THE EARTHLINK WEBSITES).

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.

THE EARTHLINK PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY INABILITY TO USE THE SERVICES OR EQUIPMENT DUE TO, OR DAMAGE CAUSED BY, INSTALLATION, MAINTENANCE OR REMOVAL OF EQUIPMENT BY YOU OR A THIRD PARTY CHOSEN BY YOU.

YOU WILL INDEMNIFY, DEFEND AND HOLD US HARMLESS FROM AND AGAINST ANY LIABILITY, LOSS, DAMAGE, OR EXPENSE IN CONNECTION WITH CLAIMS, ACTIONS, OR PROCEEDINGS ARISING OUT OF INSTALLATION, MAINTENANCE OR REMOVAL OF EQUIPMENT BY YOU OR A THIRD PARTY CHOSEN BY YOU.

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 MSA ARE AS EXPRESSLY SET FORTH IN THIS MSA.

THE CUMULATIVE LIABILITY OF ANY EARTHLINK PARTY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICE AND THE EQUIPMENT WILL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE (3) 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.

15. Indemnification

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, attorneys’ fees and expenses that an EarthLink Party may sustain or incur by reason of your use or misuse of the Service or the use or misuse of the Service by anyone else through your account including, but not limited to, use or misuse of the Service (i) in violation of applicable laws or regulations or the terms of this MSA 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; (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); and (iv) in connection with the installation, maintenance or removal of Equipment by you or a third party chosen by you.

16. Electronic Communications and Phone Communications

16.1 Electronic Communications

You consent to receive notices, documents, disclosures and other communications about your account or EarthLink Service 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 in 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.

16.2 Phone Calling and Texting

In addition, you hereby agree and acknowledge that providing your phone number constitutes your prior express consent to receive automated and manually dialed informational calls, text messages and pre-recorded messages to the phone number(s) that you provided EarthLink in connection with your subscription to or use of the Service. Consent to receiving autodialed calls, text messages, and/or pre-recorded messages from EarthLink is not required to purchase products or services from EarthLink.

16.3 Changing Your Contact Preferences

You may modify your contact preferences regarding Communications and/or automated or manually dialed calls, text messages and pre-recorded messages from EarthLink by logging into your account, visiting /about-us/contact/ for other options. You may also call EarthLink Customer Service, which contact information can be found here /about-us/contact/. You also may text STOP in response to any text message from EarthLink to stop receiving text messages from EarthLink.

16.4 Recording by EarthLink

PLEASE BE AWARE THAT ANY COMMUNICATION YOU MAKE TO EARTHLINK OR THAT EARTHLINK MAKES TO YOU, REGARDLESS OF WHETHER IT IS BY TELEPHONE, TEXT, OR OTHER MEDIUM, MAY BE RECORDED BY EARTHLINK. BY ENGAGING IN ANY SUCH COMMUNICATION AND/OR BY YOUR USE OF THE SERVICES, AS DEFINED BELOW, YOU HEREBY AGREE, AND WILL BE DEEMED TO HAVE AGREED, TO SUCH RECORDING.

17. Customer Support and Contacting EarthLink

To contact EarthLink and for online customer support for your Service, including troubleshooting email, certain connection issues, billing issues, setting up your email, and online account maintenance, go to earthlink.net/about-us/contact to locate the contact options available for each specific instance or query.

18. Governing Law

This MSA and any claim or action related directly or indirectly to this MSA 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.

19. Dispute Resolution by Binding Arbitration and Class Action Waiver (Including Important Information for California Residents)

PLEASE READ THE FOLLOWING PROVISIONS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. This MSA requires the use of arbitration to resolve disputes and otherwise limits the remedies that are available to you in the event of a dispute.

19.1 Summary

Most Subscriber concerns can be resolved by calling us at any of our designated telephone numbers, which can be found at earthlink.net/about-us/contact. 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 MSA will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed $75,000.00, 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.

19.2 Agreement to Arbitrate

EarthLink and you agree to resolve all disputes and claims between us through binding arbitration by the American Arbitration Association (“AAA”). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:

• Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
• Claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
• Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
• Claims that may arise after the termination of this MSA.

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 Service under this MSA 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 MSA, you and EarthLink are each waiving the right to a trial by jury or to participate in a class action. This MSA evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this provision.

19.3 Informal Dispute Resolution Prior to Arbitration

19.3(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 or Contact Email Address that EarthLink has on file for you.

19.3(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.

19.3(3) Failure to Reach Resolution
If EarthLink and you do not reach an agreement to resolve the claim within forty-five (45) days after the Notice is received, you or EarthLink may commence an arbitration proceeding.

19.4 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, 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 $75,000.00. (The filing fee currently is $200.00 for claims under $10,000.00 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.)

19.5 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 MSA, and will be administered by the AAA. The AAA Rules are available online at 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 MSA. 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.

19.6 Appeal

If an award issued by the arbitrator exceeds $75,000.00, 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 $75,000.00, any appeal rights from the award will be governed by the FAA.

19.7 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.net/about-us/contact 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 $75,000.00 in damages, the payment of these fees will be governed by the AAA rules.

19.8 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 $2,500.00 (“Alternative Payment”), whichever is greater, and pay your attorney, if any, the amount of attorneys’ 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 (“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 fourteen (14) days of the arbitrator’s ruling on the merits.

The right to attorneys’ fees and expenses discussed in this Section 19.8 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 attorneys’ fees and expenses if it prevails in an arbitration, EarthLink agrees that it will not seek such an award.

19.9 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.

19.10 Future Changes to Agreement to Arbitrate

Notwithstanding any provision in this MSA 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 thirty (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 19 of this MSA version as of the date indicated.

19.11 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.

20. Survival

Sections 4, 6, 7, 9, 10.1, 12, 13, 14, 15, 16, 18, 19 and 22 of this MSA will survive termination of this MSA.

21. Revisions to this Master Service Agreement

EarthLink may revise, amend, or modify this MSA and/or the Services offered hereunder at any time by posting the revised version of this MSA or description of the Services on the EarthLink’s website located at earthlink.net/tcs. The revised terms, conditions and/or Services will be effective on the date that they are posted as a revision to this MSA or as a revision to the Services generally offered by EarthLink. Your continued use of the Service after the date of the revision constitutes your acceptance of all of the revisions. If you do not agree to the revisions, your sole and exclusive remedy will be to terminate your account and use of the Service.

22. Miscellaneous

You may not assign your rights or delegate any of your duties under this MSA 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 MSA 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 19; 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 MSA 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 MSA 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.

Schedule 1 – List of EarthLink Services

Unless otherwise expressly provided in writing to the contrary, the Services covered by the EarthLink Master Service Agreement or MSA include, without limitation, those listed below:

• Schedule 1 – List of EarthLink Services
• Schedule 2 – High-Speed Internet and DSL Service
• Schedule 3 – Online Backup Service
• Schedule 4 – Wireless Home Internet Service
• Schedule 5 – Business Services
• Schedule 6 – Business Digital Marketing, Web Hosting And Domain Service Agreement

All Schedules and Attachment listed above are part of and subject to the terms of the EarthLink Master Service Agreement, except as expressly set forth in either the Master Service Agreement or the pertinent Schedule or Attachment. Capitalized terms that are not defined in these Schedules have the meanings ascribed to them in the Master Service Agreement.

Schedule 2 – EarthLink High-Speed Internet and DSL Services

DSL and High Speed Internet Service Disclosures: “High-Speed Internet and DSL Services” generally refers to and encompasses the services marketed as EarthLink Residential DSL Internet service, the EarthLink Freestanding Residential DSL Internet service, the EarthLink High Speed Internet service and any related software and tools described at earthlink.net/internet.

Equipment Terms: The EarthLink High Speed Internet service generally requires special equipment that EarthLink will arrange to be installed in your home (“Internet Equipment”). EarthLink will charge an upfront installation charge to your account and coordinate with you to schedule the date of equipment installation by a service technician at your Service address.

The technician will determine the most appropriate installation location for the Internet Equipment to support your Internet Service. If you prefer a different installation location, additional charges may apply. If you cannot agree on the installation location for the Internet Equipment, or you do not want to pay additional charges, you may cancel the Internet Service. All charges incurred will be refunded to your EarthLink account or your credit card on file.

If existing wiring does not meet EarthLink’s standards, additional charges may apply for a wiring upgrade. If you request additional wiring, charges may also apply. After the Internet Equipment has been installed, if you wish to move the Internet Equipment to a different location within your Service address, it is your responsibility to contact a third party vendor.

THE INSTALLATION OF THE INTERNET EQUIPMENT AND THE FIRST USE OF THE INTERNET SERVICE MAY INTERFERE WITH THE NORMAL OPERATION OF A MONITORED ALARM OR EMERGENCY RESPONSE SYSTEM. IT IS ESSENTIAL THAT YOU TEST ANY ALARM SYSTEMS IMMEDIATELY FOLLOWING INSTALLATION OF THE INTERNET EQUIPMENT. IN NO EVENT WILL EARTHLINK BE RESPONSIBLE FOR ANY CLAIMS OR DAMAGES, OF ANY NATURE WHATSOEVER, RESULTING FROM ANY FAILURE OR MALFUNCTION OF ANY ALARM SYSTEMS, WHETHER OR NOT CAUSED BY ANY INTERFERENCE WITH OR FROM THE INTERNET SERVICE.

In some cases, installation of the Internet Equipment may require the inactivation of your current landline home phone service, if applicable, to complete the installation process. After installation, it is your responsibility to cancel your landline telephone service with your provider so that you will not continue to be billed for landline home phone service.

Schedule 3 – EarthLink Online Backup Service

Online Backup Service Disclosures: “Online Backup Service” refers to and generally encompasses services and any related software and tools that are marketed as “EarthLink Online Backup Service” and are described here.

The Online Backup Service may be used to reproduce and store materials. It is licensed to you only for reproduction and storage of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. The Online Backup Service may also be used for remote access to materials for usage between computers. Remote access of copyrighted material is only provided for lawful personal use or as otherwise legally permitted. If you are uncertain about your right to copy or permit access to any material you should contact your legal advisor.

Software License: EarthLink will license the software to you that will automatically backup and store your data from your computer (“Software”), provided you successfully installed and configured the Software. EarthLink will allow you to retrieve your data files from the Service up to a maximum amount of data which can be downloaded from your account per each 24-hour period as determined by EarthLink (“Download Limit”). Your Download Limit is set by EarthLink, at its sole discretion, and is currently calculated by the number of bytes downloaded over the course of a 24-hour period according to the local time of EarthLink’s servers or its providers’ servers. EarthLink reserves the right to change the Download Limit calculation method without further notice. From time to time, EarthLink may offer promotions to increase your Download Limit. In the event that you desire or attempt to download more than your Download Limit through EarthLink’s servers or its providers’ servers, EarthLink reserves the right, but will have no obligation, to offer and, upon your acceptance, provide to you a higher Download Limit as part of the Service (or other EarthLink additional services and products that may be offered from time to time).

Legal Compliance: You are solely responsible for (i) obtaining sufficient rights to the content of all data and files stored by you on EarthLink’s or its providers’ servers and (ii) ensuring that such content does not violate the Privacy Policy or the Acceptable Use Policy.

EarthLink may take any legal and technical remedies to prevent the violation of this MSA. If you believe that your copyright, in any material, has been infringed by an EarthLink Online Backup account holder, please notify EarthLink as set forth in the Digital Millennium Copyright Act Policy.

EarthLink will only disclose information regarding your use of the Online Backup Service in accordance with the Privacy Policy. EarthLink or its providers may immediately refuse, remove or disable access to any data or files stored on EarthLink’s or its providers’ servers that EarthLink or its providers reasonably believe may be illegal, may violate other EarthLink agreements or policies, or any laws or regulations, may violate the rights of any third party or otherwise may be reasonably objectionable with or without notice to you.

EarthLink will comply with its obligation to report evidence of child pornography offenses to the appropriate law enforcement authorities pursuant to the Protection of Children from Sexual Predators Act. Any such materials will be forwarded to the appropriate law enforcement authorities upon discovery and public access will be disabled.

Protection of Files: You are solely responsible for protecting the information on your computer such as by installing anti-virus software, updating your applications, password protecting your files, and not permitting third party access to your computer. The Online Backup Service may backup files that are no longer usable due to corruption from viruses, software malfunctions or other causes that may result in you restoring files that are no longer usable.

Deletion of Backup Data: The Software saves a copy of each file you designate to a server operated by EarthLink or its providers. The Software scans for changes or additions to these files and then periodically creates a copy of modified or newly designated file. You will not be able to restore files that EarthLink has not completed copying or files that have been changed but not yet been backed up or not eligible for backup.

If your account for the Online Backup Service expires, is terminated, is not renewed, or is otherwise discontinued for any reason, EarthLink and its providers may, without notice, delete or deny you access to any of your backup data that may remain in EarthLink’s possession or control.

You agree that if you mark a file to no longer be backed up, delete a file from your computer, or terminate or allow your trial or license to terminate, non-renew, or otherwise lapse for any reason, that these files may not be available to you should you wish to restore them.

You agree that EarthLink and its providers may retain (but will have no obligation to retain) your backup data for a period of up to one (1) year after your trial or license has been terminated, expired, or otherwise lapsed, as part of EarthLink’s marketing to you the opportunity to purchase, renew, or extend a license.

Schedule 4 – Wireless Home Internet Service

EarthLink Wireless Home Internet Service: Wireless Home Internet Service is a fixed-location data service, not a voice service, that is implemented using 4G LTE Internet access technology (“WHI Service”) and all equipment provided to a Subscriber by EarthLink (whether leased or purchased, the “Equipment”) must remain at the service location. The network that is used to transmit the data service that supports the WHI Service is owned and operated by a licensed commercial network operator and not EarthLink (the “Third-Party Network”). WHI Service may not be available in all EarthLink service areas. Subscriber’s use of WHI Service is subject to the following additional terms and conditions:

1. Plan Terms:
1. Data Plans: WHI Service is available through monthly, paid-in-advance Data Plans that include a monthly data allotment. Any unused data will not carry over into the next monthly billing cycle. EarthLink reserves the right to change the speed of WHI Service, suspend WHI Service, throttle data speeds and video resolution, and/or cutoff access to WHI Service once paid-in-advance base plan data has been consumed within a single monthly billing cycle. At the start of the next billing cycle, once advance payment has been received, base plan data will reset. Excess data charges may also apply. For information concerning purchasing additional data or upgrading to a new data plan, please see Section 3 below.
2. Monthly & Term Plans: EarthLink offers service plans that extend from month to month (the “Monthly Plans”) and service plans that continue for a longer, contractual period of time (the “Term Plans”). If a Term Plan is selected, Subscribers agree to maintain Service for the agreed duration of the Term Plan, as applicable. If a Monthly Plan is selected, Subscribers will be required to lease the Equipment for a monthly paid-in-advance fee.
3. Unlimited Plan: EarthLink now offers a Monthly Plan that will provide you continuing access to the Internet, even after you reach your base data limit (the “Unlimited Plan”). The Unlimited Plan is subject to the general terms of a Monthly Plan, as described above. However, once you use your base plan data allocation, you may continue to access the Internet but at standard speeds instead of high-speeds.
4. Additional Plans: EarthLink is continually reviewing prospective new programs and plan configurations. We may offer additional plans from time to time such as purely contractual arrangements and other options. Details of all the plans we offer at any time will be on our website.
2. Auto Activating Service: Customer has ten (10) calendar days from receipt of the Equipment to activate WHI Service. If WHI Service has not been activated by the Customer within ten (10) days, WHI Service will be automatically activated by EarthLink and the primary method of payment on file will be charged for the first month’s invoice, plus applicable taxes. Upon activation, Subscribers will have access to the Internet.

   If, for any reason, EarthLink is unable to activate WHI Service, EarthLink reserves the right to cancel such WHI Service. Upon cancellation, Subscribers will be responsible for returning the Equipment or they will be subject to a Non-Returned Equipment Fee.

3. Data Add On, Plan Upgrades: Subscribers may purchase additional data (“Data Add On”) for a particular monthly billing cycle on an as needed basis. Purchased Data Add On is non-refundable and any unused Data Add On does not carry over to the next billing cycle. Alternatively, Subscribers may obtain additional data by upgrading to a new data plan with a higher data allotment. Upon upgrading, EarthLink will charge Subscriber the price differential between their old data plan and their new data plan.
4. Billing, Refunds: EarthLink invoices for monthly recurring service charges, as stated on Subscriber’s service order, plus any applicable taxes, fees, and surcharges, in advance on a monthly basis. A non-refundable Processing & Handling Fee will be charged at the point of sale. A Subscriber may be subject to additional service charges with respect to any excess data usage that is stated on Subscriber’s applicable service order. EarthLink will not grant any refunds or credits for any unused data.
5. Service Quality: Subscriber acknowledges that: (i) the WHI Service may be unavailable if the wireless device used in providing WHI Service is not in range of a transmission site; (ii) there are many factors that may impact availability and quality of the WHI Service, including without limitation, network capacity, signal strength, terrain, trees, placement of buildings, environmental conditions, the characteristics of the physical wireless device and any device to which it is attached, government regulations, maintenance, or other activities affecting service operations; (iii) service interruptions may occur as a result of acts of third parties that damage or impair the Third-Party Network or in connection with modifications, upgrades, relocations, repairs or other similar activities conducted by the Third-Party Network operator; and (iv) data delays and omissions may occur. EarthLink does not guarantee any bandwidth specifications and actual Internet upload and download speed, also known as throughput rate, may vary. The Third-Party Network operator may also suspend services from time-to-time. SUBSCRIBER WAIVES ALL RIGHTS AND CLAIMS AGAINST EARTHLINK AND THE THIRD-PARTY NETWORK OPERATOR RELATED TO, OR THE RESULT OF, THE UNAVAILABILITY OR QUALITY OF THE WHI SERVICE AND/OR THE THIRD-PARTY NETWORK.
6. Power Disruptions: The Equipment is electrically powered and will not work in a power outage. WIRELESS HOME INTERNET DOES NOT HAVE ITS OWN POWER SUPPLY. IF THERE IS A POWER OUTAGE, WIRELESS HOME INTERNET SERVICES WILL NOT WORK.
7. Security, Use Restrictions: Subscriber shall take commercially reasonable security measures when using the WHI Service, and Subscriber assumes sole responsibility for use of the WHI Service and for access to and use of any Equipment used in connection with the WHI Service. If the Equipment is lost or stolen, Subscriber shall immediately notify EarthLink so that EarthLink can suspend the WHI Service with respect to such Equipment in order to prevent any unauthorized use of the WHI Service. Subscriber will be required to replace any such lost or stolen Equipment at Subscriber’s expense. Until EarthLink receives Subscriber’s notification of lost or stolen Equipment, EarthLink is entitled to assume that any use of the WHI Service is authorized by the Subscriber and Subscriber shall be responsible for any such use and any associated charges. Due to regulatory requirements, Subscriber must obtain EarthLink’s approval before installing, deploying or using any regeneration equipment or similar mechanism (for example, a repeater) to originate, amplify, enhance, retransmit, or regenerate WHI Services.
8. Prohibited Uses: Subscriber shall comply with the terms of EarthLink’s Acceptable Use Policy (“AUP”), located at /tcs and the AUP is incorporated by reference into this Schedule 4. EarthLink may suspend WHI Service immediately for any violation of the AUP and for any of the following “Prohibited Uses” of the WHI Service:
1. Accessing, altering or interfering, or attempting or assisting another person to access, alter or interfere with the communications equipment or information of the Third-Party Network operator, or any Subscriber, including by rearranging, tampering, or making any unauthorized connection with any wireless telephone equipment or facilities, or using any scheme, false representation or false credit devices, or by or through any fraudulent means or devices whatsoever, whether within or outside of the service territory;
2. Using the WHI Service in a manner that unreasonably interferes with use of services provided by the Third-Party Network operator or any Subscribers, including, but not limited to:
1. Compromising the Third-Party Network’s security or capacity, degrading the Third-Party Network’s performance, using malicious software or “malware,” hindering other Subscribers’ access to the Third-Party Network, or otherwise adversely impacting network service levels or legitimate data flows;
2. Using applications which automatically consume unreasonable amounts of available Third-Party Network capacity;
3. Using applications which are designed for unattended use, automatic data feeds, connections, or applications that are used in a way that degrades network capacity or functionality; and
4. Misusing the WHI Service, including “spamming” or sending abusive, unsolicited, or other mass automated communications.
3. Using the WHI Service to convey information of a nature or in such a manner that renders the conveyance unlawful, or to impersonate another person with fraudulent or malicious intent, or for any purpose in violation of the law;
4. Any other unauthorized, wrongful, or misappropriated use of the WHI Service (including cloning, compromised SIM algorithm, and subscription fraud) on an MSISDN or SIM assigned to EarthLink, whether or not the MSISDN or SIM is currently active and whether the use is by EarthLink or one of its Subscribers;
5. Rearranging, tampering or making an unauthorized connection with any portion or component of the Third-Party Network;
6. Using or assisting others in the use of any unethical or fraudulent scheme, or by or through any other unethical or fraudulent means or devices whatsoever, with intent to avoid payment of, in whole or in part, any charges for the WHI Service;
7. Using the WHI Service without permission on a stolen or lost device;
8. Installing amplifiers, enhancers, repeaters, or other devices that modify or otherwise affect the radio frequencies used to provide the WHI Service without express permission from EarthLink or the Third-Party Network operator;
9. Using the WHI Service for monitoring of third parties without their permission, including location based tracking of individuals;
10. Using the WHI Service to provide life-sustaining medical care or monitoring;
11. Using the WHI Service or any facilities in any manner that, if the use was by the Third-Party Network operator’s subscribers would be a breach of its subscriber terms; and
12. Any other use of the WHI Service or facilities that EarthLink or the Third-Party Network operator reasonably deems to be fraudulent or harmful.
9. Termination: If Subscriber cancels the WHI Service, he or she is responsible for paying all service charges through the end of the monthly billing cycle during which the WHI Service was cancelled, including any charges for exceeding any data usage limitations that applied to Subscriber’s WHI Service plan, and all applicable taxes and fees. Upon termination, EarthLink shall have the right to use over-the-air means to access any terminated Equipment for the purpose of downloading software or the Third-Party Network operator’s then-current preferred roaming list designed to disable any terminated Equipment to prevent attempts to connect to the Third-Party Network. EarthLink may terminate WHI Service immediately without advance notice to Subscriber if EarthLink is no longer permitted by the Third-Party Network operator to provide WHI Service to its Subscribers for any reason. Early Termination Fees may apply to any such termination, as set forth in Section 10.1 of the MSA.
10. Limitation of Liability: SUBSCRIBER EXPRESSLY UNDERSTANDS AND AGREES THAT IT HAS NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE THIRD-PARTY NETWORK OPERATOR OR THEIR AFFILIATES OR CONTRACTORS AND THAT SUBSCRIBER IS NOT A THIRD-PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN EARTHLINK OR ITS LICENSORS AND THE THIRD-PARTY NETWORK OPERATORS. IN ADDITION, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT: (A) THE THIRD-PARTY NETWORK OPERATOR AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO SUBSCRIBER AND SUBSCRIBER HEREBY WAIVES ANY AND ALL CLAIMS OR DEMANDS THEREFOR; (B) DATA TRANSMISSIONS AND MESSAGES MAY BE DELAYED, DELETED OR NOT DELIVERED; (C) THE SERVICE IS A FIXED-LOCATION DATA SERVICE, NOT A VOICE SERVICE, AND 911 OR SIMILAR EMERGENCY CALLS MAY NOT BE COMPLETED; AND (D) THE THIRD-PARTY NETWORK OPERATOR CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE CONNECTIVITY SERVICES.

Schedule 5 – Business Services

EarthLink Business Services: EarthLink offers internet and certain other Services to businesses of all sizes (“EarthLink Business Services”). Generally, the same Terms of Service applicable to all Services set forth in the MSA and the Schedules thereto apply to EarthLink Business Services, including, without limitation the arbitration requirement, indemnification terms and the limitations of liability. The EarthLink Privacy Policy and AUP also apply to all EarthLink Business Services.

In our sole discretion, we may require a business that elects to subscribe to EarthLink Business Services to enter into a separate agreement as a prerequisite to receiving such EarthLink Business Services. That separate agreement may either supplement or supersede the terms of the MSA.

Schedule 6 – Business Digital Marketing, Web Hosting and Domain Service Agreement

READ THIS AGREEMENT CAREFULLY BEFORE USING ANY OF THE SERVICES LISTED BELOW. CAPITALIZED TERMS THAT ARE NOT DEFINED IN THIS SCHEDULE 6 SHALL HAVE THE MEANINGS ASCRIBED TO THEM IN THE MSA. IF THERE ARE ANY CONFLICTS BETWEEN THE TERMS OF THIS SCHEDULE 6 AND THE TERMS OF THE MSA, THE TERMS OF THIS SCHEDULE 6 WILL PREVAIL AND GOVERN THE RIGHTS AND OBLIGATIONS OF THE PARTIES ONLY WITH RESPECT TO THE SERVICES DESCRIBED IN THIS SCHEDULE 6. OTHERWISE, THE TERMS OF THE MSA ARE FULLY APPLICABLE TO THIS SCHEDULE 6.

1. AGREEMENT

This Business Digital Marketing, Web Hosting, and Domain 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 are included in Schedules 2 through 5 of the MSA.

This Agreement consists of the following: this Schedule 6, the MSA, to the extent not excluded or superseded by this Schedule 6, any billing plan terms for your Service, EarthLink’s Acceptable Use Policy, and EarthLink’s Privacy Policy, which can be found at earthlink.net, as such may be updated from time to time (collectively, the “Terms of Service”), and which are incorporated herein by this reference. Certain provisions in this Agreement may not apply to you depending on the specific Services purchased and/or your particular billing plan arrangement. In the event of any conflict between this Agreement and the terms of your billing plan, your billing plan shall control. If you do not wish to be bound by these Terms of Service, you should immediately stop your use of the Service and notify EarthLink’s Customer Service Department, which contact information can be found here earthlink.net/about-us/contact, to terminate the Service.

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 this Agreement and all incorporated documents may be found at earthlink.net. You may not modify this 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 1, 6, 7.1, 8, 10, and 11 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 eighteen (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 reserves the right to verify the accuracy of the information you submit in connection with your subscription to the Services and you consent to such verification. EarthLink also reserves the right to validate the payment method information you provide at subscription and account updates, including attempting up to a $1.00 authorization to your credit or debit card which is not actually billed. To understand how EarthLink handles and protects your personal information, please see the Privacy Policy.

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.

5. PRICING

The pricing terms at Section 8 of the MSA shall apply to the Services under this Agreement.

6. BILLING AND PAYMENT

The general fee, billing, and payment terms at Section 9.1 of the MSA shall apply to the Services under this Agreement. In addition, the following apply to the Services described in this Schedule 6 to the MSA.

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.

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.

6.1 Certain Other MSA Terms Are Incorporated by Reference.
The MSA Sections listed in the table below are incorporated by reference into this Agreement:

Term	MSA Section
Credit Check / Advance Payment & Deposits	Section 9.3
Recurring Automatic or One-Time Payment by Electronic Payment Terms	Section 9.4
Payment by Check	Section 9.5
Late Payment Charge	Section 9.6
Collection Costs	Section 9.7

6.2 The terms applicable to any recurring automatic or one-time payment by electronic payment are set forth in Section 9.4 of the MSA.

6.3 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.

6.4 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.

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:

• By calling EarthLink toll-free at 844-356-5249

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. 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 ninetieth (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
Section 10.1 of the MSA regarding an Early Termination Fee shall apply to the Services under this Agreement.

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 (iv) 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.

You are solely responsible for backing-up all data prior to installation, inspection, maintenance, repair or removal of Equipment.

We will have no liability whatsoever for any damage to your computer, software, files, data or peripherals or for breaches of your security (including access to your computer, software, data or peripherals) in connection with the Services.

You represent that you have reviewed the minimum technical requirements necessary to use the Services and that computer(s) in which Equipment will be installed or which use Services meets these requirements.

In certain circumstances, you must possess original (or equivalent) media (CD, disk, etc.) for the operating system of that computer(s) in order for installation of Services and related Equipment to be successful.

9. MONITORING THE SERVICES

EarthLink has no obligation to monitor the Services but may do so to (i) comply with laws, regulations, or governmental or legal requests; (ii) protect the overall integrity of the Services (including the EarthLink network); (iii) operate the technical aspects of the Services in a proper, effective, and reasonable manner; (iv) protect itself, its employees, or others as described in the Privacy Policy; and (v) to enforce or prevent breaches of this Agreement or other EarthLink agreements or policies.

EarthLink will only disclose information regarding your use of your Services in accordance with the Privacy Policy. EarthLink may immediately remove your material or information from EarthLink’s servers, in whole or in part, if EarthLink reasonably believes it infringes another’s property rights or violates other EarthLink agreements or policies, or any laws or regulations.

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. 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, OMISSIONS, 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 WEBSITES). 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 (3) 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.

11. 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 to 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 13.2, found on 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 or AUP, which may be viewed at earthlink.net/tcs and is hereby incorporated into this 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.

12. CUSTOMER AND TECHNICAL SUPPORT

Your customer support contact may vary depending on the Service(s) you purchased. For customer and technical support call EarthLink’s toll-free number at 844-356-5249.

For specific billing questions, login to your account or visit earthlink.net/about-us/contact for other options. EarthLink provides technical support in connection with the features and Tools available for any EarthLink Web Hosting Service.

13. EARTHLINK’S WEB HOSTING AND DESIGN SERVICES

13.1 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.

13.2 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 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, videos, audios, music, sounds, texts, 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.

13.3 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 a link to you for access and 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.

13.4 License
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.

13.5 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.

13.6 Additional Indemnities
In addition to your indemnification obligations set forth in the MSA, 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), attorneys’ fees and expenses that an EarthLink Party may sustain or incur in connection with the Additional Content on Your Website.

13.7 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.

13.8 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 is also 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 (5) 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.

14. EARTHLINK’S DOMAIN NAME REGISTRATION SERVICE

14.1 ICANN
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.

14.2 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.

14.3 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 you register your 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 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.

14.4 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“):

• Registrant Contact is the official owner of and highest authority for a domain name. Usually the registrant is the same as the administrative contact, though in some circumstances, the registrant may designate another individual to be responsible for the maintenance of the domain name.
• Administrative Contact manages the domain name and has full authority to request and authorize any decisions and updates to the domain name. If the administrative contact is not the owner of the domain name, he or she is the representative of the owner.
• Technical Contact is the person, role, or organization responsible for the web server on which a domain is hosted. The technical contact has the authority to update domain name server information, and attend to the technical administration of the domain files on the server but does not have the authority to transfer ownership or administrative rights.
• Billing Contact is the party responsible for receiving and paying the registration and renewal fees.

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 Information 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 fifteen (15) calendar days by clicking on the link in the email. If you do not verify your email address within such fifteen (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.

14.5 Renewal
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 (2) 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 (1) year, then EarthLink will renew your domain name registration for a one (1) 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.

14.6 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 fifteen (15) calendar days by clicking on the confirmation link and following the verification steps. Registrar will consider your domain name registration verified after you have completed the verification steps. If you do not verify your email address within such fifteen (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 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 fifteen (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.

14.7 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 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 sixty (60) days and the domain registration cannot be transferred to another registrar during the sixty (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 your Designated Agent to confirm Changes for your domain on your behalf.

14.8 Fees
See Section 9.11 of the MSA for details regarding the fees pertinent to domain name registration Services.
Please be aware of the following:

• 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.

14.9 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.

14.10 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 fifteen (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.

14.11 Ownership of Data
You acknowledge and agree that EarthLink owns all databases, compilations, 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 Information 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 14.11.

14.12 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.

14.13 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 Information 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.

14.14 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 and state 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.

14.15 Additional Disclaimers, Limitations of Liability and Indemnification regarding the EarthLink Domain Name Registration Service
In addition to the terms set forth in the MSA regarding Disclaimer of Warranty and Indemnification and, Section 11 of this Agreement, Limitations of Liability 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.

15. SECTION 15 APPLIES ONLY TO EARTHLINK’S BUSINESS DIRECTORY LISTING SERVICES

Your plan or Services may include EarthLink’s Business Directory Listing Service (the “Business 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 Business 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 Business 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.

16. SECTION 16 APPLIES ONLY TO EARTHLINK CONNECT SERVICES

If your plan or Service includes EarthLink Connect, EarthLink will provide the following Services to you:

• Social Media Management: EarthLink will manage Facebook social media posts (“Content“) for your business and establish a Content-approval process for you to review, revise, and provide approval of the Content that EarthLink shares on your Facebook business page. If you do not have a Facebook business page, EarthLink will create one on your behalf. Under this Service, you agree to grant EarthLink with administrative access to your Facebook business page for the limited purpose of creating and posting information on your behalf. If you limit EarthLink’s access to your Facebook account, you are still responsible for paying EarthLink any related Service fees, if applicable. You must approve all business-specific messaging by EarthLink. EarthLink will not publish any new Content on your Facebook business page until it receives your approval.
• Business Directory Listings: Please refer to Section15 of this Agreement for terms and conditions related to EarthLink’s Business Directory Listing Service.
• Review Monitoring: Depending on your Services, EarthLink may provide access to its EarthLink Business Directory Listings’ dashboard for you to view, manage, and respond to customer reviews regarding your company, services, and/or products. To access the online dashboard, if such access is permitted, you will receive an email to the primary email address listed on your EarthLink account that shall prompt you to set up a password protected account. It is your responsibility to immediately notify EarthLink if you believe that your dashboard account has been breached and/or compromised. When responding to a customer review, you agree to include your business name and the date the response is to be posted in the associated online directory. EarthLink has no responsibility and does not manage the contents of your responses to customer reviews.

You acknowledge that all Content and customer review responses submitted through social media channels or online directories may be viewed by others through third party services and websites. In some cases, you may be able to control who sees certain content by adjusting the privacy settings on such third-party social media accounts. If you gather information from users’ social media accounts, you agree that all such information will be subject to your business’ privacy policy. If you do not have a privacy policy, you agree to include and abide by the following statement instead: “Your contact information will be used only to provide the information you requested. We will not sell your information to third parties.”

17. SECTION 17 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, videos, 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 shall 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.