READ THIS INTERNET SERVICE AGREEMENT CAREFULLY BEFORE USING OUR INTERNET SERVICES.
1. INTRODUCTION.
EarthLink, Inc. ("EarthLink") provides its Internet services, as they may exist from time to time, ("Services") to all end users who pay a monthly service fee to subscribe to the Services ("Members") as well as those who access some of our Services but do not have accounts ("Visitors"). By establishing an account or using the services, you agree to be bound by this Agreement and to use the Services in compliance with this Agreement, our Acceptable Use Policy and other user policies.
If you do not agree to the terms and conditions of this Agreement, including any future revisions, you may not use the Services and if you are a current Member, you must terminate your use of the Services under Section 10.
2. SUBSCRIPTION REQUIREMENTS.
Members must be at least 18 years old. Local access dialup numbers may not be available in all areas. You are solely responsible for determining if use of a particular dialup number will cause you to incur long-distance, toll, or other charges. EarthLink is not responsible for any long-distance, toll or other telecommunications charges you incur. Toll-free (800#), international and simultaneous access costs are extra. Current prices for EarthLink's Services are posted throughout our website at http://www.mindspring.net. These rates may also be obtained by calling 888.677.7464. EarthLink reserves the right to change prices and institute new fees at any time upon 30 days prior notice.
3. PAYMENT OBLIGATIONS OF A MEMBER.
(a) Members must (i) provide EarthLink with accurate and complete billing information including legal name, address, telephone number, and credit card/billing information, and (ii) report to EarthLink all changes to this information within thirty (30) days of the change. Members are responsible for any charges to their account.
(b) Members having questions regarding charges to an account, should contact EarthLink's Customer Service Department at 888.677.7464. All charges are considered valid unless disputed in writing within sixty (60) days of the billing date. Adjustments will not be made for charges that are more than 60 days old.
(c) Charges are billed to Members' credit cards or debit cards, as applicable, each month for the basic service and any additional usage or services. EarthLink is not responsible for any charges or expenses (e.g. for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by EarthLink.
(d) If paying by check, payments are due within 30 days after the month in which the charges are incurred.
(e) If you pay for Services through a prepayment plan, automatic billing described above shall only apply to the charges not paid for through the prepayment plan.
(f) If you purchase Services through a reseller who in turns pays EarthLink, the reseller must pay all amounts owing for your account. If the reseller fails to pay EarthLink any amounts due - whether or not you have paid the reseller - your account will be subject to suspension or cancellation until you or the reseller has paid all amounts due.
(g) Delinquent accounts may be suspended or canceled at EarthLink's sole discretion; however, charges will continue to accrue until the account is canceled. EarthLink may bill an additional charge to reinstate a suspended account.
4. MEMBER'S ACCOUNT, PASSWORD AND SECURITY.
Upon registration, Members receive a user name, password and account designation upon registration. You and members of your household or business, if you have purchased a business account, are the only authorized users of your EarthLink account and must comply with this Agreement. You must keep your password confidential so that no one else may access the Services through your account. You must notify EarthLink immediately upon discovering any unauthorized use of your account.
Using a personal account for high volume or commercial use (e.g., revenue generation, advertising, etc.) is prohibited. Email accounts exceeding 10MB in size may, at EarthLink's discretion, be transferred to a compressed temporary file or storage. EarthLink may delete the temporary file from the server 60 days after notifying you. Any free web site exceeding 225MB of traffic will be billed for excess traffic. You may establish a commercial or high-volume account by calling 888.677.7464.
Members agree not to use any automatic method to avoid inactivity disconnect or to otherwise maintain a connection unless actively using it. Members agree not to provide any public information services over a dial-up connection.
EarthLink may change its POP numbers at any time. EarthLink reserves the right to direct Members to use certain numbers to access the Service or to restrict use of specific access numbers. Usernames, passwords and email addresses are EarthLink's property and EarthLink may alter or replace them at any time.
5. MONITORING THE SERVICES.
EarthLink has no obligation to monitor the Services, but may do so and disclose information regarding use of the Services for any reason if EarthLink, in its sole discretion, believes that it is reasonable to do so, including to: satisfy laws, regulations, or governmental or legal requests; operate the Services properly; or protect itself and its Members. Please see our Privacy Policy. EarthLink may immediately remove your material or information from EarthLink's servers, in whole or in part, which EarthLink, in its sole and absolute discretion, determines to infringe another's property rights or to violate our Acceptable Use Policy.
6. DISCLAIMER OF WARRANTIES and LIMITATION OF LIABILITY.
EXCEPT FOR CERTAIN PRODUCTS AND SERVICES SPECIFICALLY IDENTIFIED AS BEING OFFERED BY EARTHLINK, EARTHLINK DOES NOT CONTROL ANY MATERIALS, INFORMATION, PRODUCTS, OR SERVICES ON THE INTERNET. THE INTERNET CONTAINS UNEDITED MATERIALS, SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE OFFENSIVE TO YOU. EARTHLINK HAS NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY FOR SUCH MATERIALS. YOU ASSUME FULL RESPONSIBILITY AND RISK FOR USE OF THE SERVICES AND THE INTERNET AND ARE SOLELY RESPONSIBLE FOR EVALUATING THE ACCURACY, COMPLETENESS, AND USEFULNESS OF ALL SERVICES, PRODUCTS, AND OTHER INFORMATION, AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE PROVIDED THROUGH THE SERVICE OR THE INTERNET.
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EARTHLINK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. EARTHLINK MAKES NO EXPRESS WARRANTIES AND WAIVES ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH EARTHLINK OR THE INTERNET GENERALLY. NO ADVICE OR INFORMATION GIVEN BY EARTHLINK OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. EARTHLINK AND IT EMPLOYEES ARE NOT LIABLE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SERVICES OR THE INTERNET INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. IN ANY EVENT, EARTHLINK'S CUMULATIVE LIABILITY TO ANY MEMBER FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICES SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING A ONE YEAR PERIOD.
7. SOFTWARE LICENSE.
EarthLink grants to each Member a limited, non-exclusive, non-transferable and non-assignable license to install and use the EarthLink access software (including software from third-party vendors that EarthLink distributes) (in object code format), its associated documentation, and any updates thereto ("Licensed Programs") in order to access and utilize the Services. Each Member agrees to use the Licensed Programs solely in conjunction with the Services and for no other purpose. EarthLink may modify the Licensed Programs at any time, for any reason, and without providing notice of such modification to a Member.
The Licensed Programs constitute confidential and proprietary information of EarthLink and EarthLink's licensors and embody trade secrets and intellectual property protected under United States copyright laws, other laws, and international treaty provisions. All right, title, and interest in and to the Licensed Program, including associated intellectual property rights, are and shall remain with EarthLink and EarthLink's licensors. Member shall not translate, decompile, reverse engineer, distribute, remarket or otherwise dispose of the Licensed Program or any part thereof.
You may not download, use or otherwise export or re-export the Licensed Programs or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. By installing or downloading the Software, you represent and warrant that you are not located in, under the control of or a national or resident of any country on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. Contractor/manufacturer is EarthLink, Inc., 1430 West Peachtree Street, N.W., Suite 400, Atlanta, Georgia 30309.
8. WEBSITE USAGE.
Our site on the World Wide Web with its home pages in the domain "earthlink.com", "earthlink.net", "mindspring.com", "mindspring.net" or any other site operated by EarthLink (the "Website") is a complimentary information service offered by EarthLink at no charge to users.
We may provide links on the Website to other websites which are not under our control. In general, any website which has an address (or URL) which does not contain "earthlink.com", "earthlink.net", "mindspring.com" or "mindspring.net" is such a website. These links are provided for convenience only and are not intended as an endorsement by EarthLink of the organization or individual operating the website or a warranty of any type regarding the website or the information on the website.
You may provide a hypertext link to our Website on another website, provided that: (a) the link must be clearly marked "EarthLink", (b) the link must "point" to the URL "http://www.earthlink.com" or "www.earthlink.net" and not to any other pages within the Website, (c) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with our name and trademark(s), (d) the appearance, position and other aspects of the link may not create the false appearance that an entity is associated with or sponsored by EarthLink, (e) the link, when activated by a user, must display this Website full-screen and not within a "frame" on the linked website, and (f) EarthLink may, in its sole discretion, revoke consent to link to our website at any time. All other hypertext links to the Website must be approved in writing by EarthLink.
Some portions of the Website are made available for the free exchange of ideas by participants and are not regularly monitored nor moderated by EarthLink. EarthLink assumes no responsibility and makes no warranty that it will undertake to screen or remove such material. You agree to hold EarthLink harmless from all claims based upon the materials posted by others. Also, in exchange for availing yourself of the opportunity to upload or provide information to this site and any associated chat rooms or discussion areas, you will indemnify EarthLink from any claims made by third parties regarding the material that you provide. Personal information posted by you to the Website is posted at your own risk. EarthLink will have no liability arising from use of that information. You shall not use the Website to distribute or publish any advertising of goods or services, solicitations for funds, or other commercial messages. You agree that you will not post, upload or otherwise introduce a virus or other harmful code onto the Website.
Your posting of material on the Website or providing material to EarthLink to use on the Website will be deemed to be a grant by you to EarthLink of a license to the material to include the material on the Website and to reproduce, publish, distribute, perform, display, and transmit the material and to prepare derivative works as may be reasonably necessary to do so, and you waive all rights of attribution and integrity with respect to the material.
9. TERM OF AGREEMENT.
Continued use of the Services constitutes acceptance of this Agreement and any future versions. If you are dissatisfied with the Services or any related terms, conditions, rules, policies, guidelines, or practices, your sole and exclusive remedy is to discontinue using the Services and, if you are a Member, to terminate your account.
10. TERMINATION.
You may terminate your account at any time and for any reason by providing notice of intent to terminate to EarthLink by:
To terminate DSL service, you must call 888.677.7464. To terminate Web Hosting and/or Business Services, you must call (888) 932-1997. Your termination will only be complete upon your receipt of a cancellation confirmation number from EarthLink. Charges to your account will stop accruing the day EarthLink provides you with a cancellation confirmation number. Based on your billing cycle, charges accrued prior to your termination may apply after you receive a cancellation confirmation. Email cancellation requests will not be accepted If your account included space on EarthLink's servers, anything stored on this space will be deleted upon termination.
Without prior notice, EarthLink may terminate this Agreement, your password, your account, or your use of the Services, for any reason, including, without limitation, if EarthLink, in its sole discretion, believes you have violated this Agreement, our Acceptable Use Policy or any of the applicable user policies, or if you fail to pay any charges when due. EarthLink may provide termination notice to you by: email addressed to your email account or by US Mail or courier service to the address you provided for the Services. All notices to you shall be deemed effective on the first (1st) calendar day following the date of electronic mailing or on the fourth (4th) calendar day following the date of first-class mailing or deposit with a commercial courier service.
Sections 3, 4, 6, and 11 of this Agreement shall survive termination of this Agreement.
11. JURISDICTION.
Under California Civil Code Section 1789.3, Members or Visitors who are residents of California are entitled to the following specific consumer rights information: the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814 or by telephone at 916.445.1254.
This Agreement is governed by Georgia law without regard to conflict of law provisions.
The federal and state courts located in Georgia alone have jurisdiction over all disputes arising out of or related to this Agreement and the Services. You consent to the personal jurisdiction of such courts sitting in Georgia with respect to such matters or otherwise between you and EarthLink, and waive your rights to removal or consent to removal.
12. MISCELLANEOUS.
This Agreement, the Acceptable Use Policy, the Privacy Policy, and EarthLink's other user policies posted on EarthLink's website constitute the entire agreement between you and EarthLink with respect to your use of the Services.
EarthLink may revise, amend, or modify this Agreement, the Acceptable Use Policy and any other user policies and agreements, at any time and in any manner. Notice of any revision, amendment, or modification will be posted on EarthLink's web site (http://www.earthlink.net) and/or on Member's start pages and/or by email and/or in our various publications and mailings to Members.
Ver. 03/07/2000
