BEFORE YOU OPEN THE PACKAGE CONTAINING THE MEDIA, OR CLICK THE "ACCEPT" BUTTON AT THE END OF THIS DOCUMENT [OR DOWNLOAD THE SOFTWARE], CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY OPENING THE PACKAGE, CLICKING ON THE "ACCEPT" BUTTON, OR DOWNLOADING THE SOFTWARE, 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, YOU ARE NOT AUTHORIZED TO DOWNLOAD THIS SOFTWARE. INSTEAD, CLICK THE "DO NOT ACCEPT" BUTTON OR RETURN THIS PRODUCT TO THE PLACE OF PURCHASE FOR A FULL REFUND.
GRANT. Subject to the provisions contained herein and payment of applicable license fees, EarthLink Network, Inc. ("EarthLink") hereby grants to you a non-exclusive license to use its accompanying version of the proprietary EarthLink Network TotalAccess╘ Internet access service software product ("Software") for your own use on a single computer. Other software products are included within the TotalAccess suite of software, however, this agreement shall apply only to EarthLink's proprietary software and shall not apply to Netscape¬ Communication Corporation's Navigator, Qualcomm's Eudora-Light¬ and software from Network TeleSystems or any other software product. Such Software is protected by the copyright laws of the United States and international copyright treaties.
SOFTWARE. EarthLink shall furnish the software to you electronically or on media in machine-readable object code form. If you receive your first copy of the Software electronically, and a second copy on media, the second copy may be used for back-up and archival purposes only. This license does not grant you any right to any enhancement or updates to the Software. Enhancements and updates, if available, may be obtained by you at EarthLink's then-current standard pricing, terms and conditions.
RESTRICTED USE. You may not copy the Software, except for backup or archival purposes. Any such copy made by you shall be subject to this Agreement and shall contain all the notices regarding copyrights, trademarks and other proprietary rights as contained in the Software originally provided to you. You may not lend, rent, lease or otherwise transfer the Software.
TITLE. Title, ownership rights, and intellectual property rights in and to the Software shall remain in EarthLink and/or its licensors and suppliers. This Agreement does not include the right to sublicense the Software and is personal to you and therefore may not be assigned (by operation of law or otherwise) or transferred without the prior written consent of EarthLink. You acknowledge that the Software in source code form remains a confidential trade secret of EarthLink and/or its licensors and suppliers and therefore you agree not to attempt to decipher, decompile, disassemble or reverse engineer the Software or allow others to do so, except to the extent applicable laws specifically prohibit such restriction. You further agree not to modify or create derivative works of the Software.
CONTENT. 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 WARRANTIES. EarthLink warrants that for a period of ninety (90) days from the date of acquisition, the Software, when properly installed and used in conjunction with EarthLink's dial-up service, will substantially achieve the functionality described in the documentation. EarthLink does not warrant, however, that your use of the Software or access to the Internet will be secure or uninterrupted or that the operation of the Software will be error-free. In addition, the security mechanism implemented by the Software has inherent limitations, and you must determine that the Software sufficiently meets your requirements. EarthLink also warrants that the media containing the Software, if provided by EarthLink, is free from defects in material and workmanship and will so remain for ninety (90) days from the date you acquired the Software. EarthLink's sole liability for any breach of these warranties shall be, in EarthLink'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 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 shall be covered by these limited warranties 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) EarthLink advised you how to operate the Software so as to achieve the functionality described in the documentation. Only if you inform EarthLink of your problem with the Software will EarthLink be obligated to honor this warranty. EarthLink will use reasonable commercial efforts to correct, repair, replace or refund pursuant to the foregoing warranties within thirty (30) days of being so notified.
THIS IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY EARTHLINK. EARTHLINK MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) AND WITHOUT WARRANTY OF NON-INFRINGEMENT OF THIRD PARTIES' RIGHTS. EARTHLINK EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND OF FITNESS FOR A PARTICULAR PURPOSE. HOWEVER, IF THE LAW IMPLIES WARRANTIES NOTWITHSTANDING THE FOREGOING DISCLAIMER, THE DURATION OF ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND 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 THIS LIMITATION MAY NOT APPLY TO YOU. NO DISTRIBUTOR, 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 these warranties shall immediately be terminated. This warranty shall not apply if the Software is used on or in conjunction with hardware or programs other than the unmodified version of the hardware and programs with which the Software was designed to be used.
THESE WARRANTIES GIVE 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 EARTHLINK OR ITS LICENSORS, SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSONS 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 EARTHLINK'S LIST PRICE FOR A LICENSE TO THE SOFTWARE, EVEN IF EARTHLINK 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 OF LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
EXPORT CONTROLS. You may not download, use or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. In particular, but without limitation, none of the Software or underlying information or technology may be downloaded, used or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Haiti, 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.
TERMINATION. Either party may terminate this Agreement immediately in the event of default by the other party. Upon any termination of this Agreement, or upon receipt of a refund hereunder, you shall immediately discontinue the use of the Software and shall within ten (10) days return to EarthLink all copies of the Software. You may also terminate this Agreement at any time by destroying the Software and all copies thereof. Your obligations to pay accrued charges and fees shall survive any termination of this Agreement.
MISCELLANEOUS. This Agreement represents the complete and exclusive statement of the agreements 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 EARTHLINK AGREES TO FURNISH THE SOFTWARE AND DOCUMENTATION ONLY UPON THESE TERMS AND NOT ON THOSE TERMS 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, and such decision shall not affect the enforceability (i) of such provision under other circumstances or (ii) of the remaining provisions hereof under all circumstances. Headings shall not be considered in interpreting this Agreement. 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 entirely within California, except as governed by Federal law. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby 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 similar clauses in the NASA FAR Supplement. Contractor/manufacturer is EarthLink Network, Inc., 3100 New York Boulevard, Pasadena, California, 91107.
