EARTHLINK.NET - CABLE INTERNET TERMS OF USE

Transcription

1 EarthLink Policies and Agreements READ THIS SERVICE AGREEMENT CAREFULLY BEFORE USING THE EARTHLINK CABLE INTERNET ACCESS SERVICE. 1. AGREEMENT This EarthLink Cable Internet Service Agreement ("Agreement") governs your use of the EarthLink Cable Internet services ("Cable Internet Service"). This Agreement is between EarthLink, Inc. ("EarthLink") and you as a subscriber. This Agreement consists of the terms and conditions below, the terms of your billing plan, the EarthLink Privacy Policy and the EarthLink Acceptable Use Policy, all of which are incorporated herein. By establishing an account with EarthLink, or using the Cable Internet Service, you agree to be bound by this Agreement and to use the Service in compliance with the terms of this Agreement and all applicable federal, state and local laws, rules and regulations. 2. TERM OF THIS AGREEMENT The effective date of this Agreement is the date on which you subscribe to the Cable Internet Service. 1 This Agreement terminates upon the termination of your Cable Internet Service account. Sections 7, 8, 9, 11, 12, 15, 16 and 18 of this Agreement will survive termination of this Agreement. 3. SUBSCRIPTION INFORMATION To order and to subscribe to the Cable Internet Service, you acknowledge that you are 18 years of age or older and you have legal authority to enter into this Agreement. You must provide EarthLink with (i) a valid credit card, debit card or other EarthLink approved payment method for the Cable Internet Service, (ii) your billing address, and (iii) your shipping address if different from 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. The Cable Internet Service must be available to your location. EarthLink may accept or reject any potential subscriber in its sole discretion. Even if EarthLink has accepted your order, EarthLink cannot guarantee that the Cable Internet Service can be provisioned to your address. The minimum computer requirements for the Cable Internet Service are located at EarthLink reserves the right to verify the accuracy of the information you submit in connection 1 of 11

2 with your subscription and your account and you consent to such verification. EarthLink also reserves the right to validate the payment method information you provide at subscription for the Cable Internet Service and/or EarthLink Value Added Services, if applicable, and account updates including attempting up to a $1.00 authorization to your credit card or debit card which is not actually billed. To understand how EarthLink handles and protects your personal information, please see the EarthLink Privacy Policy. 4. USERNAMES AND PASSWORDS, AND SECURITY Upon subscription, you will receive a username, password, and other account information. You will be responsible for (i) maintaining the confidentiality of your username and password, and (ii) the use of your Cable Internet Service by any person who uses your username and password to access your Cable Internet Service, whether or not you specifically authorize such person's use. You must notify EarthLink immediately upon discovering any unauthorized use of your account information. Usernames, passwords, addresses and Internet Protocol ("IP") addresses are EarthLink's property and EarthLink may alter or replace them at any time. You are solely responsible for maintaining the security of (i) the device (such as a desktop, laptop, notebook, tablet or smart phone ("Device") you will use in connection with the Cable Internet Service; (ii) any WI-FI network you will use in connection with the Cable Internet Service; (iii) your data; and (iv) your username and password. In addition, you are solely responsible for the encryption of any of your data andthe back-up and restoration of your Device and data. EarthLink recommends that you use anti-virus, anti-spyware and firewall software and that you update this software, as recommended by the applicable provider. 5. GENERAL DESCRIPTION OF AND RESTRICTIONS ON THE CABLE INTERNET SERVICE The Cable Internet Service speed may vary depending on location, line quality, inside wiring, Internet traffic, the cable provider in your area ("Cable Provider") and other factors beyond the control of EarthLink. When using the Cable Internet Service, you are solely responsible for determining if use of a particular dial-up number will cause you to incur long-distance, toll, or any other charges, including simultaneous login charges. EarthLink does not guarantee that any dial-up access numbers EarthLink provides to you will be a local call from your location. EarthLink is not responsible for any long-distance, toll, or other charges you incur. Toll-free (800, 888, 877), international, and simultaneous login access costs will be extra. Current prices and features are listed on the EarthLink Website located at EarthLink may change its POP numbers at any time. EarthLink reserves the right to direct you to use certain numbers to access the Cable Internet Service or to restrict use of specific access numbers. If your inbox is approaching its storage limit, it also will be noted visually on your web mail and EarthLink also will send you notices to your EarthLink address notifying you that you are approaching your storage limit. accounts exceeding allotted space may, 2 of 11

3 depending on the billing plan and at EarthLink's discretion, be suspended and be transferred to a compressed temporary file or storage or may be deleted. The Cable Internet Service billing plan permits up to 20 hours per month of dial-up connection to the Internet from only one computer at a time. If two or more computers are logged into one EarthLink account to access the Internet at the same time ("Simultaneous Usage"), Simultaneous Usage charges will be accrued for that month. The Simultaneous Usage fee is $1.00 per hour, pro-rated to the minute, through the end of the monthly billing cycle. The Simultaneous Usage fee will be added to your monthly bill. Although some EarthLink access plans come with multiple addresses, the use of two or more dial-up connections from one EarthLink account at the same time to access multiple addresses associated with that account will accrue Simultaneous Usage charges. The Cable Provider may limit the amount of data that you can upload and/or download each month through the Cable Internet Service. If Comcast is your Cable Provider for your Cable Internet Service, then your monthly data usage cannot exceed 250 gigabytes. Data usage, also known as bandwidth usage, is the total amount of data, photos, videos and other files that you send, receive, download and upload over a specific period of time. Comcast will call those customers who exceed the 250 gigabyte monthly consumption limit to inform them of how much data per month the account has used, help them identify the source of such excessive data usage, suggest ways to reduce data usage and explain the consequences of continuing to exceed the 250 gigabyte monthly usage cap, including termination of the Cable Internet Service. If within six (6) months of the first call from Comcast about such excessive use, a customer continues to exceed the 250 gigabyte monthly consumption limit, then such customer's Cable Internet Service may be terminated. Customers whose Cable Internet Service is terminated as a result of exceeding the 250 gigabyte monthly usage cap will be prohibited from subscribing to the Cable Internet Service for a year following the applicable termination date. For more information on this 250 gigabytes monthly data usage cap, go to Frequently Asked Questions - Usage Cap, EarthLink Internet Cable Service powered by Comcast. You represent that when you transmit, upload, post or submit any content, images or data using the Cable Internet Service you have the legal right to do so and that your use of such data or content does not violate the 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 s, message boards, chat rooms, social networks or online services. Unless the Cable Internet Service includes a Static IP, you will be allocated a Dynamic IP address. EarthLink reserves the right to timeout inactive connections. Your and webspace may be inactivated if you exceed storage limits. You may reduce the size or purchase additional space. Usage and webspace exceeding the allotted amount of bandwidth may be billed for excess traffic. , webspace, and bandwidth limits are posted throughout the EarthLink Website at These limits may also be obtained by calling (888) EARTHLINK 3 of 11

4 ( ). EarthLink reserves the right to change limits at any time upon 30 days prior notice. Policies regarding use of the personal web pages are set forth in the EarthLink Acceptable Use Policy. EarthLink reserves the right to change any of the features, content or applications of the Cable Internet Service or any of your EarthLink Value Added Services at any time with or without notice to you. 6. INSTALLATION The Cable Provider will supply you with a cable modem and any other equipment needed for the installation ("Equipment"). Some Cable Providers may provide the professional installation at no additional charge. Other Cable Providers may charge a professional installation fee. In the event that you prefer to use your own cable modem that you purchased previously or that you used with another Internet service provider, check with the Cable Provider to verify if this is possible. If you prefer to install the Equipment yourself, ask the Cable Provider if this self-installation option is available for your area. If self-installation is available from the Cable Provider and elected by you, the Cable Provider will supply self-installation kits and instructions and any related installation services as described in the list of charges. You authorize the Cable Provider to make any preparations to the premises necessary for the installation, maintenance, or removal of the Equipment. The Cable Provider may require an initial payment at the time of installation of the Cable Internet Service. The Cable Provider's list of charges should describe the installation services and related Equipment that will be available for a standard installation. Any Equipment provided by the Cable Provider to you (other than any Network Interface Card ("NIC") installed in the computer) will remain the property of the Cable Provider except as otherwise required by applicable law. Neither EarthLink nor the Cable Provider will have any obligation to install, support, maintain, repair, or replace (i) any computer or (ii) any cable modem or cabling or other equipment that is provided by a company other than EarthLink or the Cable Provider. When your Cable Internet Service is canceled, the policies of the Cable Provider will govern how to return the Equipment provided by the Cable Provider. The installation, use, inspection, maintenance, repair, and removal of the Equipment may result in service outage or potential damage to your computer. You are solely responsible for backing up all of your existing computer files and data. EarthLink and its employees, officers, directors, agents, contractors, and representatives will have no liability whatsoever for any damage to or loss or destruction of any of your hardware, software, files, data, or peripherals. You assume responsibility for impacts to or loss of any warranty associated with the opening of your computer for installation purposes. 7. PROVISIONING, BILLING AND PAYMENT 4 of 11

5 The Cable Provider will bill you for your usage of the Cable Internet Service. Your bill from the Cable Provider will show charges for the Cable Internet Service, and any applicable taxes, surcharges, and fees set by the government. Changing your plan's Cable Internet Service's speed, if available, may affect your monthly fee. The billing plans may vary by geographic location and Cable Provider. In the event that you change to a different EarthLink Internet service or change the speed of your existing Cable Internet Service, consult with an EarthLink representative and the Cable Provider, if applicable, whether such change will affect your billing plan. If you elected to purchase any EarthLink value added services ("EarthLink Value Added Services"), such as Attack Shield, charges for such EarthLink Value Added Services and any billing fees, taxes, surcharges and fees required by a government entity, if applicable, will be billed to your method of payment on file with EarthLink. EarthLink is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges for the EarthLink Value Added Services billed by EarthLink. The monthly fees for the EarthLink Value Added Services will be due in advance of the month incurred. All payments must be made in US dollars. You must provide accurate billing information including legal name, address, telephone number, and credit or debit card and report all changes to this information promptly to EarthLink. Charges for the EarthLink Value Added Services may be billed on or after your billing cycle date to your method of payment on file each month for your EarthLink Value Added Services including any additional charges incurred (e.g. taxes and fees). EarthLink is not responsible for any fees resulting from charges billed by EarthLink including, but not limited to, overdrawn accounts or exceeding credit card limits. EarthLink will an e-invoice for your Value Added Services to your primary EarthLink address selected by or assigned to you during the subscription process ("Contact Address") each month or if you designated a different billing address, EarthLink will the e-invoice to such billing address each month. In the event that you request that EarthLink to mail you a paper invoice each month for your EarthLink Value Added Services rather than ing you an e-invoice, EarthLink will charge an account fee for each paper invoice. If you provided EarthLink with a valid credit or debit card to pay for your EarthLink Value Added Services, you agree to maintain valid and current credit or debit card information with EarthLink at all times. You acknowledge and agree that you authorize EarthLink and that EarthLink does not need to obtain any additional authorization from you for any recurring payments or automatic billing options. In addition, if your credit or debit card company provides updated credit or debit card information to EarthLink, you acknowledge that EarthLink does not need to obtain authorization from you for EarthLink to use such information to update your credit or debit card. If payment by check has been accepted by EarthLink for your EarthLink Value Added Services, then payments by check must be received by EarthLink by the due date listed in your monthly invoice. EarthLink will charge (i) a check processing fee for each check and (ii) a paper invoice fee. 5 of 11

6 When you pay your fees by check, you also authorize EarthLink to electronically process your payment. If your check is processed electronically, your checking account may be debited on the same day that EarthLink receives your check and neither your check nor a copy of your check will be included with your checking account statement. EarthLink will charge a fee for returned checks or returned bank drafts from your financial institution. EarthLink reserves the right to change (i) fees and institute new fees associated with your EarthLink Value Added Services upon notice at least 30 days prior to the effective date of such new fee to your Contact Address and (ii) fees associated with your account upon notice at least 30 days prior to the effective date of such new fee to your Contact Address or your billing address if different from your Contact address. Your Value Added Services account will be automatically inactivated if you put a stop payment on your account with your financial institution in connection with the payment of your monthly bill. EarthLink reserves (i) the right to change the monthly fees associated with the EarthLink Value Added Services upon notice at least 30 days prior to the effective date of such new monthly fee to your Contact Address and (ii) the right to change the fees associated with your account upon notice at least 30 days prior to the effective date of such new fee to your Contact Address or your billing address if different from your Contact address. All charges for the EarthLink Value Added Services are considered valid unless disputed in writing within thirty (30) days of the billing date and mailed to: Adjustments will not be made for charges that are disputed more than thirty (30) days after the billing date. EarthLink may use various means to recover monies due in connection with your Value Added Services. If EarthLink uses a collection agency or legal action to recover monies due, you agree to pay all fees arising from or relating to the recovery of such monies, including attorneys' fees. 8. CANCELLATION AND TERMINATION To cancel your Cable Internet Service, you must contact both the Cable Provider and EarthLink. To contact EarthLink to cancel your Cable Internet Service and/or your EarthLink Value Added Services, you must do one of the following: EarthLink only accepts cancellation by phone, fax or U.S. Mail. EarthLink does NOT accept cancellations by . EarthLink will issue a confirmation number to you by as your proof of cancellation. Upon cancellation of the Cable Internet Service, your services will be terminated and you will no longer have access to your , files or other information on EarthLink's servers. EarthLink Value Added Services' accounts are set to close at the end of the current billing period. 6 of 11

7 EarthLink does not grant refunds or credits for any prior use including partial use during the last month prior to cancellation. If you cancel your EarthLink Value Added Service by one of the prescribed methods listed above and are mistakenly billed after the end of the billing period, EarthLink will refund any erroneous charges upon proof of such cancellation. EarthLink will issue a confirmation number to you by as proof of cancellation of your EarthLink Value Added Services. Accounts are set to close at the end of the current billing period. EarthLink does not grant refunds or credits for any prior use including partial use during the last month prior to cancellation. If you cancel by one of the prescribed methods listed above and are mistakenly billed for your value added services after the end of the billing period, EarthLink will refund any erroneous charges upon proof of such cancellation. EarthLink may terminate your EarthLink Value Added Services' account at any time for any reason, including, without limitation, if (i) your account is delinquent because charges on your method of payment were refused for any reason, (ii) you failed to make payment when due or you did not provide EarthLink with your credit or debit card's expiration date or expiration date of any other method of payment before the existing expiration date; (iii) EarthLink, in its sole discretion, believes you have breached this Agreement or any other EarthLink agreements or policies; or (iv) your use of the Service is prohibited by law. Termination notice will be sent to you via (i) your Contact Address or (ii) U.S. Mail to the billing address for your EarthLink account. If your Value Added Services account is terminated by EarthLink due to non-payment and then is reactivated at a later date, EarthLink will bill you an account reactivation fee. 9. USE OF THE CABLE INTERNET SERVICE You represent that when you transmit, upload, post or submit any content, images or data using the Cable Internet 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 s, third party web sites, 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. Your use of the Service is also governed by the EarthLink Acceptable Use Policy and the EarthLink Privacy Policy. EarthLink may take any legal and technical remedies to enforce or prevent the violation of this Agreement or any other EarthLink agreement or policy including the EarthLink Acceptable Use Policy. 10. MONITORING THE CABLE INTERNET SERVICE EarthLink may take any legal and technical remedies to prevent the violation of this Agreement or any other EarthLink agreement or policy including agreements and policies and to enforce the EarthLink Acceptable Use Policy. 7 of 11

8 EarthLink has no obligation to monitor the Cable Internet Service, but may do so with the assistance of your Cable Provider to: (i) comply with laws, regulations, or governmental or legal requests; (ii) protect the overall integrity of its network including preventing the distribution of viruses or other malicious code; (iii) operate the technical aspects of the Cable Internet Service in a proper, effective, and reasonable manner; (iv) protect itself, its employees, or others as described in the EarthLink Privacy Policy ; and (v) to enforce or prevent breaches of this Agreement or other EarthLink agreements or policies, including the EarthLink Acceptable Use Policy. 11. DISCLAIMERS AND LIMITATIONS OF LIABILITY, WARRANTIES THE CABLE INTERNET SERVICE AND THE EARTHLINK VALUE ADDED SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EARTHLINK, ITS SUPPLIERS AND VENDORS AND YOUR CABLE PROVIDER DO NOT WARRANT THAT THE CABLE INTERNET SERVICE OR THE EARTHLINK VALUE ADDED SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. EARTHLINK, ITS SUPPLIERS AND VENDORS AND THE CABLE PROVIDER MAKE NO EXPRESS WARRANTIES AND WAIVE ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, PRODUCT, EQUIPMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EarthLink and its officers, directors, employees, subsidiaries, affiliates, agents, suppliers, vendors and THE cable provider (collectively "EARTHLINK PARTIES") will have no liability FOR ANY CLAIMS, LOSSES, ACTIONS, SUITS, COSTS OR DAMAGES, INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, IN CONNECTION WITH THE CABLE INTERNET SERVICE ARISING FROM: (I) CABLE INTERNET SERVICE AVAILABILITY OR QUALITY, REGARDLESS OF THE CAUSES OF THE PROBLEMS; (II) OTHER USERS ACCESSING YOUR DEVICE; (III) THE INSTALLATION OF THE Equipment BY YOU OR BY ANOTHER PARTY; (IV) VARIATIONS IN THE SPEED OR BANDWIDTH AVAILABILITY of YOUR device; (V) AVAILABILITY OR QUALITY OF CABLE INTERNET SERVICE REGARDLESS OF THE CAUSE(S) OF THE PROBLEMS; (VI) SECURITY BREACHES; (VII) EAVESDROPPING; (VIII) INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE CABLE INTERNET Service; (IX) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE), DELETION OF FILES, ERRORS, OR DEFECTS; (X) DELAYS OR ERRORS IN OPERATION, TRANSMISSIONS, CORRUPTION OF DATA, INVALID DESTINATIONS OR ANY FAILURE OF PERFORMANCE OF THE CABLE INTERNET Service; (Xi) YOUR RELIANCE ON OR USE OF THE CABLE INTERNET Service; (XII) THE USE OF THE CABLE INTERNET 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 (XII) THE ACCURACY, 8 of 11

9 COMPLETENESS, AND USEFULNESS OF ANY THIRD PARTY PRODUCTS, SERVICES OR INFORMATION OR THE MERCHANTABILITY OF SUCH ITEMS (INCLUDING ANY SUCH ITEMS OFFERED THROUGH CO-BRANDED WEB SITES LINKED FROM THE EARTHLINK WEB SITES). THE FOREGOING LIMITATIONS APPLY TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF THE EARTHLINK PARTIES WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO THE CAUSE OF ACTION AGAINST ANY EARTHLINK PARTY IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE. YOUR EXCLUSIVE AND ONLY REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET FORTH IN THIS AGREEMENT. THE CUMULATIVE LIABILITY OF ANY EARTHLINK PARTY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE Service AND THE EARTHLINK MODEM WILL NOT EXCEED THE TOTAL AMOUNT OF Service FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM. YOU MAY HAVE OTHER RIGHTS UNDER CERTAIN LAWS IN CERTAIN STATES WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. 12. 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, attorney's fees and expenses that an EarthLink Party may sustain or incur by reason of your use or misuse of the Cable Internet Service or the use or misuse of the Cable Internet Service by anyone else through your account including, but not limited to, use or misuse of the Cable Internet Service (i) in violation of applicable laws or regulations or the terms of this Agreement or any other EarthLink agreement or policy; (ii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with such use or misuse; or (iii) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible property (including data). In addition, if you are not the owner of the premises where you are going to install the Equipment you warrant that you have obtained the consent of the owner for your Cable Provider or its agents to enter the premises for installation. You will indemnify, defend and hold the EarthLink Parties harmless from and against any claims of the owner of the premises in connection with the installation of the Equipment. 13. ELECTRONIC COMMUNICATIONS AND CELL PHONE CALLING You consent to receive notices, documents, disclosures and other communications from EarthLink 9 of 11

10 ("Communications") in an electronic format to your Contact Address and agree that the Communications provided to you by EarthLink electronically will be deemed a writing. If you do not want to consent to receive Communications from EarthLink electronically or if you withdraw such consent, then you must stop using the Cable Internet Service. The withdrawal of your consent will not affect the legal validity and enforceability of any electronic Communications provided or business transacted between EarthLink and you prior to the time you withdraw your consent. In addition, you hereby agree that your acceptance of this Agreement constitutes your written consent: (i) to EarthLink calling you at the phone number that you provided EarthLink in connection with your subscription to or use of the Cable Internet Service or the EarthLink Value Added Services, and (ii) if you provided EarthLink with a mobile or cellular phone number, to EarthLink also texting you at such mobile or cellular phone number in connection with your subscription to or use of the Cable Internet Service or EarthLink Value Added Services CUSTOMER SERVICE AND TECHNICAL SUPPORT For online customer support including troubleshooting , billing issues for the EarthLink Value Added Services, setting up your , and online account maintenance, go to To contact EarthLink Customer Service via telephone or live chat, go to Contact your Cable Provider customer service for questions about (i) billing for your Cable Internet Service, (ii) Equipment, (iii) installation of Equipment, (iv) connection issues, or (v) signal levels. 15. GOVERNING LAW This Agreement is governed by Georgia law without regard to conflict of law provisions. 16. DISPUTE RESOLUTION BY BINDING ARBITRATION (INCLUDING IMPORTANT INFORMATION FOR CALIFORNIA RESIDENTS) Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be settled by arbitration, and administered by the American Arbitration Association under its Commercial Arbitration Rules. Any such arbitration will be governed by Georgia law. The arbitrator will be an expert in the Internet field and will be bound by the terms of this Agreement. The arbitrator's award will be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. ANY CUSTOMER SEEKING ARBITRATION PURSUANT TO THIS AGREEMENT WILL PURSUE SUCH ARBITRATION ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR 10 of 11

11 REPRESENTATIVE PROCEEDING. THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS ACTION OR REPRESENTATIVE BASIS PURSUANT TO THIS AGREEMENT. 17. REVISIONS TO THE AGREEMENT EarthLink may revise, amend, or modify this Agreement at any time by posting the revised version on the EarthLink Web Site located at The revised version will be effective on the date that it is posted as stated at the end of the revised version. The material changes to the Agreement will be noted in endnotes of the revised version. Your continued use of the Cable Internet Service after the date of the revised version constitutes your acceptance of all of the revisions. If you do not agree to the revisions in the revised version, your sole and exclusive remedy will be to terminate your account and use of the Cable Internet Service. 18. MISCELLANEOUS You may not assign your rights or delegate any of your duties under this Agreement without the prior written consent of EarthLink, and any attempted assignment or delegation without such consent will be void. If one or more provisions of this Agreement are held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration provision in Section 16; if that prohibition is found to be unenforceable, the entire "DISPUTE RESOLUTION BY BINDING ARBITRATION" provision (but only the "DISPUTE RESOLUTION BY BINDING ARBITRATION" provision) will be null and void and the dispute will be heard by a court. EarthLink may amend or replace such unenforceable provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of EarthLink as reflected in the original provision. Nothing in this Agreement or in the understanding of the parties confers upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. EarthLink may subcontract any work, obligations or other performance required of EarthLink under this Agreement without your consent. EarthLink will not be liable for delays, damages or failures in performance because of causes beyond its reasonable control, including, but not limited to, acts of a government in its sovereign capacity, acts of war, terrorism, acts of a public enemy, fires, earthquakes, acts of God, labor disputes, strikes, work slow-downs or other labor-related activity. 11 of 11