USE OF ANY EARTHLINK NETWORK SERVICES SIGNIFIES THAT YOU AGREE TO THE FOLLOWING:
If you DO NOT agree with these terms and conditions, DO NOT attempt to connect to EarthLink Network. Your data connection to EarthLink Network automatically means agreement with the following terms and conditions. You may not use the Netscape Navigator Software available through the EarthLink Network unless you agree to all of the terms of the Netscape Navigator End User License Agreement, which follows this agreement.
This agreement is between you, hereinafter referred to as Subscriber, and EarthLink Network, Inc. located in Los Angeles, California, hereinafter referred to as Provider, (collectively referred to as Parties). Whereas the Subscriber desires to become affiliated with Provider, for the purpose of using services of Provider;
Now therefore, the Parties agree as follows:
1. The Provider agrees to allow Subscriber to connect computing facilities at Subscriber's site to Provider's computing facilities and to transmit data to over the Network, and/or host Subscriber's data on Providers computer(s), in accordance with the terms of these Subscription rules and the Provider's Acceptable Use Policy, which follows:
a. Any traffic which is disruptive or destructive of any source is absolutely prohibited.
b. If data from any source leaves the Provider and enters any other network, that data must follow the acceptable use rules of the entered network (including member networks, regional or backbone networks). It is the responsibility of the Subscriber where this traffic entered the Provider to meet this requirement. Provider exercises no control whatsoever over the content of the information passing through Provider's network.
c. Provider's network may only be used for lawful purposes. Transmission of any material in violation of any Federal or State regulation is prohibited. This includes, but is not limited to: copyrighted material, material which is threatening or obscene, or material protected by trade secret. You agree to indemnify and hold harmless Provider and its directors, officers, employees, agents, suppliers and vendors from any claims resulting from your use of the service which damages Provider or another party.
d. Resale of Provider's connectivity services is not permitted.
2. Subscriber shall pay service fees according to the service plan designated by Subscriber upon sign-up.
Pricing provisions:
Where hourly billing is applicable, it is billed in one minute increments, for connection and use of the Network. The initial non-refundable setup fee will be processed along with the first month's access fee upon setting up the account. Future charges will be processed on a monthly basis beginning approximately 30 days from that day.
Failure to comply with the aforementioned payment schedule may result in cancellation of network services.
3. The Provider reserves the right to change the above terms and conditions by notifying the Subscriber in writing at least 30 days in advance.
4. Neither Party shall have the right to use the other's name, trademark or tradename or to refer to this Agreement in connection with any product, promotion, or publication without the prior written consent of the other Party.
5. No information exchanged between Parties shall be considered confidential unless it is the subject of a separate written confidential non-disclosure agreement.
6. This Agreement will be effective upon Subscriber's first connection to the Provider's network and may be terminated by either Party immediately upon written notice to the other Party provided, however, that the provisions of Paragraphs 1, 7 and 8 shall survive any termination. Subscriber is thus responsible for any outstanding service fees.
7. The Provider, any and all other participating contractors, and its directors, officers and employees are not authorized to make any affirmation of fact or warranty with respect to the software or hardware supplied under this Agreement and Provider HEREBY EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND INFRINGEMENT OR PROPRIETARY INTERESTS AND SHALL NOT BE LIABLE TO SUBSCRIBER FOR DIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE THE PROVIDER'S HARDWARE OR SOFTWARE.
8. The Subscriber shall indemnify and hold the Provider, its directors, officers, employees, contractors, vendors and agents harmless from and against any and all damages, liabilities, losses, costs and expenses, including reasonable attorney's fees, arising out of or related to Subscriber's use of the Network or Subscriber's breach of the terms and conditions of this Agreement.
9. This Agreement and the legal relationships between the Parties shall be governed by the laws of the State of California.
10. This Agreement is the sole Agreement between the Parties respecting the subject matter hereof. Subscriber has read this Agreement and fully understands the terms thereof. This Agreement supersedes all prior agreements and understandings, whether oral or written. This Agreement may only be changed or terminated in writing, signed by both Parties.
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NETSCAPE END USER LICENSE AGREEMENT:
BY OPENING THE PACKAGE OR CLICKING ON THE 'I AGREE' BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE 'CANCEL' BUTTON OR RETURN THIS PRODUCT TO THE PLACE OF PURCHASE FOR A FULL REFUND.
NETSCAPE NAVIGATOR END USER LICENSE AGREEMENT
GRANT. Netscape Communications Corporation ('Netscape') hereby grants to you a non-exclusive license to use its accompanying software product ('Software') and accompanying documentation ('Documentation') on the following terms:
You may:
use the Software on any single computer; use the Software on a second computer so long as the first and second computers are not used simultaneously; or copy the Software for archival purposes, provided any copy must contain all of the original Software's proprietary notices.
You may not:
permit other individuals to use the Software except under the terms listed above; modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), or create derivative works based on the Software or Documentation; copy the Software or Documentation (except for back-up purposes); rent, lease, transfer or otherwise transfer rights to the Software or Documentation; or remove any proprietary notices or labels on the Software or Documentation.
SOFTWARE. If you receive your first copy of the Software electronically, and a second copy on media, the second copy may be used for archival purposes only. This license does not grant you any right to any enhancement or update.
TITLE. Title, ownership rights, and intellectual property rights in and to the Software and Documentation shall remain in Netscape and/or its suppliers. The Software is protected by the copyright laws of the United States and international copyright treaties. Title, ownership rights, and intellectual property rights in and to the content accessed through the Software is the property of the applicable content owner and may be protected by applicable copyright or other law. This License gives you no rights to such content.
LIMITED WARRANTY. Netscape warrants that for a period of ninety (90) days from the date of acquisition, the Software, if operated as directed, will substantially achieve the functionality described in the Documentation. Netscape does not warrant, however, that your use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure. In addition, the security mechanism implemented by the Software has inherent limitations, and you must determine that the Software sufficiently meets your requirements. Netscape also warrants that the media containing the Software, if provided by Netscape, is free from defects in material and workmanship and will so remain for ninety (90) days from the date you acquired the Software. Netscape's sole liability for any breach of this warranty shall be, in Netscape's sole discretion: (i) to replace your defective media; or (ii) to advise you how to achieve substantially the same functionality with the Software as described in the Documentation through a procedure different from that set forth in the Documentation; or (iii) if the above remedies are impracticable, to refund the license fee you paid for the Software. Repaired, corrected, or replaced Software and Documentation shall be covered by this limited warranty for the period remaining under the warranty that covered the original Software, or if longer, for thirty (30) days after the date (a) of shipment to you of the repaired or replaced Software, or (b) Netscape advised you how to operate the Software so as to achieve the functionality described in the Documentation. Only if you inform Netscape of your problem with the Software during the applicable warranty period and provide evidence of the date you acquired the Software will Netscape be obligated to honor this warranty. Netscape will use reasonable commercial efforts to repair, replace, advise or refund pursuant to the foregoing warranty within 30 days of being so notified.
THIS IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY NETSCAPE. NETSCAPE MAKES NO OTHER EXPRESS WARRANTY AND NO WARRANTY OF NONINFRINGEMENT OF THIRD PARTIES' RIGHTS. THE DURATION OF IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE, IS LIMITED TO THE ABOVE LIMITED WARRANTY PERIOD; SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO LIMITATIONS MAY NOT APPLY TO YOU. NO NETSCAPE DEALER, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. If any modifications are made to the Software by you during the warranty period; if the media is subjected to accident, abuse, or improper use; or if you violate the terms of this Agreement, then this warranty shall immediately be terminated. This warranty shall not apply if the Software is used on or in conjunction with hardware or Software other than the unmodified version of hardware and Software with which the Software was designed to be used as described in the Documentation.
THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL NETSCAPE OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, OR FOR ANY DAMAGES IN EXCESS OF NETSCAPE'S LIST PRICE FOR A LICENSE TO THE SOFTWARE AND DOCUMENTATION, EVEN IF NETSCAPE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
TERMINATION. This license will terminate automatically if you fail to comply with the limitations described above. On termination, you must destroy all copies of the Software and Documentation.
EXPORT CONTROLS. None of the Software or underlying information or technology may be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.
In addition, if the licensed Software is identified as a not-for-export product (for example, on the box, media or in the installation process), then the following applies: EXCEPT FOR EXPORT TO CANADA FOR USE IN CANADA BY CANADIAN CITIZENS, THE SOFTWARE AND ANY UNDERLYING TECHNOLOGY MAY NOT BE EXPORTED OUTSIDE THE UNITED STATES OR TO ANY FOREIGN ENTITY OR 'FOREIGN PERSON' AS DEFINED BY U.S. GOVERNMENT REGULATIONS, INCLUDING WITHOUT LIMITATION, ANYONE WHO IS NOT A CITIZEN, NATIONAL OR LAWFUL PERMANENT RESIDENT OF THE UNITED STATES. BY DOWNLOADING OR USING THE SOFTWARE, YOU ARE AGREEING TO THE FOREGOING AND YOU ARE WARRANTING THAT YOU ARE NOT A 'FOREIGN PERSON' OR UNDER THE CONTROL OF A FOREIGN PERSON.
MISCELLANEOUS. This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. It may be amended only by a writing executed by both parties. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS SET FORTH HEREIN, AND NOT THOSE CONTAINED IN YOUR PURCHASE ORDER. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California, except as governed by Federal law. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
U.S. Government Restricted Rights. Use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. Contractor/manufacturer is Netscape Communications Corporation, 501 East Middlefield Road, Mountain View, CA 94043.
