PLEASE READ THIS AGREEMENT CAREFULLY BEFORE YOU ACCESS THE SERVICE PROVIDED TO YOU BY EARTHLINK NETWORK, INC. ("EARTHLINK"). BY CLICKING THE "AGREE" BUTTON AT THE END OF THIS DOCUMENT, DOWNLOADING, OR USING THE TOTALACCESS™ SOFTWARE OR THE COMPANY'S INTERNET SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT, THE COMPANY'S SOFTWARE LICENSE AGREEMENT, ACCEPTABLE USE POLICY, AND SUCH OTHER USER POLICIES AS THE COMPANY MAY ESTABLISH FROM TIME TO TIME.
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE, SHOULD CLICK THE "CANCEL" BUTTON, AND, IF YOU CURRENTLY HAVE AN EARTHLINK ACCOUNT, YOU MUST CONTACT OUR OFFICES AS SPECIFIED IN SECTIONS 10 AND 11 WITHIN 30 DAYS OF RECEIPT OF THIS DOCUMENT.
EarthLink provides the Service, defined below in Section 1, subject to your compliance with this Agreement. Other services provided by EarthLink will not be subject to this Agreement unless this Agreement is expressly incorporated into any other agreement regarding those services.
1. Service.
1.1 The Service includes: Internet access; Electronic mail ("email") and a single electronic mail address; one Web site (up to 6 megabytes) on EarthLink's server (regardless of the number of mailboxes per your account); and, a subscription to EarthLink's subscriber newsletter "bLink."
1.2. Any means of identification assigned to you by EarthLink (including usernames and email addresses) will remain the property of EarthLink and at EarthLink's sole discretion may be altered or replaced at any time.
1.3. EarthLink makes no guarantees as to the continuous availability of the Service or any specific feature of the Service. EarthLink reserves the right to change the Service or any of its features at any time with or without notice.
2. Registration Requirements.
2.1. You must be at least 18 years old to register for the Service. By accepting this Agreement, you represent that you meet this age requirement. Minors who use the Service are assumed to have parental or guardian consent to do so.
2.2. You agree to provide EarthLink with accurate and complete billing information including your legal name, address, and telephone number. All changes to this information must be reported to EarthLink within 30 days of the change.
2.3. By accepting this Agreement, you agree that you are responsible for all charges posted to your account until you cancel the account as specified in Section 11.
3. Fees.
3.1. Setup fee are nonrefundable, and EarthLink does not issue pro rata refunds for fees paid in advance.
3.2. Unlimited Internet access is offered by EarthLink subject to the following limitations:
3.2.1. Toll-free access is not included in this offer but requires payment of additional hourly charges. See the Rate Chart at <http://www.earthlink.net/company/rates.html> for full details.
3.2.2. Use of EarthLink's international access services will incur hourly charges as specified in the Rate Chart at <http://www.earthlink.net/company/rates.html>. Special offer accounts which have monthly service charges waived do not include 1-800 or international free access.
3.2.3. LOCAL ACCESS DIALUP NUMBERS MAY NOT BE AVAILABLE IN ALL AREAS. IT IS YOUR SOLE RESPONSIBILITY TO DETERMINE IF USE OF A PARTICULAR EARTHLINK DIALUP NUMBER WILL CAUSE YOU TO INCUR LONG-DISTANCE, TOLL OR OTHER CHARGES. EARTHLINK IS NOT RESPONSIBLE FOR ANY LONG-DISTANCE OR TOLL CHARGES INCURRED BY YOU THROUGH YOUR USE OF THE SERVICE. YOU ARE SOLELY RESPONSIBLE FOR ALL TELECOMMUNICATIONS CHARGES INCLUDING LOCAL AND LONG-DISTANCE TELEPHONE CHARGES FOR CONNECTION TO THE SERVICE BY YOU AND BY THOSE WHO ACCESS THE SERVICE THROUGH YOUR ACCOUNT.
3.3. Current prices for EarthLink services are posted on EarthLink's Rate Chart at <http://www.earthink.net>. These prices may also be obtained by calling 1-800-395-8425. EarthLink reserves the right to change prices and institute new fees. EarthLink may chage rates or institute new charges at any time upon 30 days prior notice. EarthLink does not issue pro rata fee refunds.
3.4. A service charge of $15.00 will be assessed to your account for each check that is returned to EarthLink for insufficient funds.
3.5. Payments for all charges are due within 30 days of the month in which the charges are incurred. If your account is delinquent, your account may be suspended or canceled at EarthLink's sole discretion If your account is suspended, regular charges continue to accrue until you cancel your account. EarthLink may, at its sole discretion, charge a fee of $9.95 to reinstate a suspended account.
3.6. Interest charges of 1% per month (or the highest rate permitted by law if lower than 1% per month) will accrue daily on any unpaid balance which is more than 30 days old.
3.7. You agree to pay all sales and use taxes, duties, or levies which are required by law as well as all attorney and collection fees arising from efforts to collect any unpaid balance on your account.
3.8. If you believe that EarthLink has billed you in error, you must contact the Customer Service Department (per Section 11) within 60 days of the invoice or transaction date of the charge. Refunds or adjustments will not be given for any charges which are more than 60 days old.
4. Use of the Service.
4.1. You and any members of your household are the only individuals who are authorized to access the Service through your EarthLink account. You must not permit anyone else to access the Service through your account and must ensure that all authorized users of your account comply with this Agreement.
4.2 You are responsible for maintaining the confidentiality of passwords used by you or members of your household .
4.3 You are responsible for all charges assessed as a result of use of your account. However, EarthLink will not hold you responsible for charges attributable to an unauthorized user's access to your account without your permission, provided that you notify EarthLink within 24 hours of discovering any such unauthorized use and the unauthorized use is not attributable to the failure of any authorized user to exercise reasonable efforts to maintain the confidentiality of the account or password.
4.4 Except for software provided by EarthLink, you are responsible for providing and maintaining all equipment and other software necessary to access the Service.
4.5. You will not use the Service or permit others to use the Service through your account in any way that violates any law or regulation; subjects EarthLink to liability; or is in contravention of EarthLink's Acceptable Use Policy. You agree to comply with all EarthLink security procedures and standards and to be bound by the terms and conditions of the End User License Agreement for any software provided to you.
5. Monitoring the Service; Disclosure of Member Information. EarthLink has no obligation to monitor the Service but may do so and may disclose information regarding your use of the Service to satisfy laws, regulations or governmental requests; to operate the Service properly; and, to protect itself and its members. However, EarthLink will not disclose member information to outside persons or entities for the purpose of soliciting EarthLink members.
EARTHLINK, IN ITS SOLE DISCRETION, MAY REMOVE OR REFUSE TO POST ANY INFORMATION OR MATERIALS, IN WHOLE OR IN PART, WHICH ARE UNACCEPTABLE, UNDESIRABLE OR IN VIOLATION OF THIS AGREEMENT.
6. No Warranties Provided by EarthLink.
6.1. Except for certain products and services specifically identified as being offered by EarthLink, EarthLink does not control any information, products or services on the Internet and except for such EarthLink-identified content, all merchandise, information and services offered, made available, or accessible on the Internet are by third parties who are not affiliated with EarthLink.
6.2. YOU ASSUME FULL RESPONSIBILITY AND RISK FOR USE OF THE SERVICE AND THE INTERNET BY YOU AND YOUR AUTHORIZED USERS. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EARTHLINK DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE VIA THE SERVICE IS FREE OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. EARTHLINK MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE REGARDING ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH EARTHLINK OR ON THE INTERNET GENERALLY. NO ADVICE OR INFORMATION GIVEN BY EARTHLINK, ITS EMPLOYEES, AFFILIATES OR CONTRACTORS SHALL CREATE A WARRANTY.
6.3 EARTHLINK SHALL NOT BE LIABLE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM USE OF THE SERVICE. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, AND USEFULNESS OF ALL OPINIONS, ADVICE, SERVICES, AND OTHER INFORMATION, AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE PROVIDED THROUGH THE SERVICE OR ON THE INTERNET GENERALLY.
6.4. THE INTERNET CONTAINS UNEDITED MATERIALS, SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE OFFENSIVE TO YOU OR OTHERS ACCESSING THE SERVICE THROUGH YOUR ACCOUNT. YOU ACCESS SUCH MATERIALS AND PERMIT OTHERS TO ACCESS SUCH MATERIALS THROUGH YOUR ACCOUNT AT YOUR OWN RISK. EARTHLINK HAS NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY FOR SUCH MATERIALS.
7. Your Remedies.
7.1. If you are dissatisfied with the Service or any of its terms, conditions, rules, policies, guidelines, or practices, your sole and exclusive remedy is to terminate this Agreement and discontinue using the Service by canceling your account by one of the methods outlined in Section 11.
7.2. UNDER NO CIRCUMSTANCES SHALL EARTHLINK, ITS EMPLOYEES, AFFILIATES OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM ANY: USE OF YOUR ACCOUNT OR THE SERVICE OR YOUR INABILITY TO USE THE SERVICE; ACCESS OF THE INTERNET OR ANY PART THEREOF; OR, YOUR RELIANCE ON OR USE OF INFORMATION, SERVICES OR MERCHANDISE PROVIDED ON OR THROUGH THE SERVICE OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE.
8. Indemnity. You agree to defend, indemnify, and hold EarthLink and its affiliates harmless from any and all liabilities, costs, and expenses, including reasonable attorneys' fees, related to or arising from: any violation of this Agreement by you or those who access the Service through your account; AND, the use of the Service or the Internet and the placement or transmission of any message, information, software, or other materials on the Internet by you or by those who have access to the Service through your account.
9. Term of Agreement. This Agreement is effective from your acceptance thereof, which is indicated by your clicking the "Agree" button at the end of this Agreement or upon the first use of the Service through your account, whichever is first. If you are a current EarthLink member when this Agreement is activated, your continued use of the Service constitutes your acceptance of this Agreement.
10. Termination of Agreement.
10.1. You may terminate this Agreement by using only the methods outlined in Section 11. Your termination will only be complete upon your receipt of a confirmation number from EarthLink. You will receive verbal confirmation if you cancel by telephone, and a written reply through U.S. mail if you cancel by mail or webform. EMAIL CANCELLATIONS WILL NOT BE ACCEPTED. Charges to your account will stop accruing the day you receive your confirmation number. EarthLink does not issue pro rata fee refunds.
10.2. EarthLink may terminate this Agreement: at any time without cause upon 30 days prior notice; or, immediately upon notice if you, or any person who has access to the Service through your account, commit a material breach of this Agreement, including but not limited to a breach of any obligation imposed under Section 4 or you fail to pay any charges within 60 days of the date they accrue.
10.3. Upon termination of this Agreement all rights granted to you and your authorized users under this Agreement shall immediately cease and terminate; and, you must destroy or return to EarthLink all copies of software and documentation that you received from EarthLink.
10.4. Termination of this Agreement does not release you from the obligation to pay all accrued charges under this Agreement.
10.5. EarthLink's right to enforce the provisions of Sections 3, 5, 6, 7, 8, 11, and 12 shall survive termination of this Agreement.
11. Notice.
11.1. You may change or cancel your EarthLink account by the following methods only: electronic webform at <http://www.earthlink.net/assistance>; first-class registered or certified mail, return receipt requested addressed to EarthLink Network, Inc., Accounts Customer Service, 3100 New York Drive, Suite 201, Pasadena, California 91107; or telephone calls directed to Accounts Customer Service at 1-800-395-8410.
11.2. EarthLink may provide notice to you by the following methods: Electronic mail (email) addressed to your email account; general posting to EarthLink's web site at <http://www.earthlink.net>; or by US Mail or courier service at the address you provided EarthLink when you registered for the service. All notices or other communications to you shall be deemed effective on the first (1st) calendar day following the date of electronic mailing or posting or on the fourth (4th) calendar day following the date of first-class mailing or deposit with a commercial courier service.
12. Miscellaneous.
12.1. EarthLink's failure to enforce strict performance of any provision of this Agreement shall not be construed as a waiver.
12.2. This Agreement shall be governed by and construed in accordance with the laws of the State of California, United States of America, without regard to its conflicts of law provisions. You consent to the personal jurisdiction of the federal and state courts having jurisdiction for Pasadena, California with respect to all disputes arising out of this Agreement, your use of the Service or otherwise between you and EarthLink. Any cause of action you may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
12.3. Any action at law, suit in equity, or other judicial proceeding concerning, relating to, arising from, or touching upon in any way, no matter how remotely, the contract for services between you and EarthLink Network, Inc. and/or your use of and/or EarthLink's provision of systems and services thereunder, shall be brought and litigated, if at all, only in the state court system of the State of California. In such event, you acknowledge the right of the specified court to assert personal jurisdiction in any such action over you and waive and release now and forever any defense to that assertion of jurisdiction that might otherwise exist.
12.4. Neither this Agreement, nor any of your rights or obligations arising hereunder, shall be transferable by you to any third party without EarthLink's prior written consent.
12.5. This Agreement, the Rate Chart, the Acceptable Use Policy, and the End-User License Agreement constitute the entire agreement between you and EarthLink with respect to the Service.
12.6. EarthLink reserves the right to alter, amend or modify this Agreement at any time upon thirty (30) days notice. No amendment or modification to this Agreement by you shall be valid or binding on EarthLink unless made in writing and signed by both parties.
12.7. Under California Civil Code Section 1789.3, California subscribers 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 1-916-445-1254.
EarthLink Network TotalAccess™ is a trademark of EarthLink Network, Inc.
EarthLink Network® is a registered trademark of EarthLink Network, Inc.
<---Acceptable Use Policy>
Subscriber Acceptable Use Policy
1. Introduction
EarthLink is committed to and supports the free flow of information and ideas over the Internet. EarthLink does not actively monitor nor does EarthLink exercise editorial control over the content of any web site, electronic mail transmission, mailing list, news group or other material created or accessible over EarthLink services. However, EarthLink reserves the right to remove any materials EarthLink does become aware of that are, in EarthLink's sole discretion, potentially illegal, could subject EarthLink to liability, or violate this Acceptable Use Policy ("Policy"). Your violating this Policy may result in the suspension or cancellation of your EarthLink services. You should read and interpret this Policy in conjunction with the EarthLink Network Internet Access Agreement.
2. Policies
The following are violations of EarthLink's acceptable use policies:
2.1. Using a personal account for high volume or commercial use. If you would like to receive high-volume or commercial services, please contact EarthLink's Business Sales Department at 1-800-395-8425 for information about establishing a commercial account. Activities which are prohibited as high volume include, but are not limited to:
2.1.1. Any mailbox exceeding 10MB may, at EarthLink's discretion, be transferred to a compressed temporary file or storage. Members will be notified at that time with further information. Sixty days after this notification, EarthLink reserves the right to delete the temporary file from the server.
2.1.2. Exceeding 6MB of disk space for Free Web sites. Any Free Web site exceeding 6MB will be suspended until the customer brings the disk space usage under 6MB.
2.1.3. Exceeding 1GB of traffic in a one month period for free Web sites. Any Free Web site exceeding 1 GB of traffic will be billed for the excess traffic. Charges will be determined according to EarthLink's Rate Chart, which is located at <http://www.earthlink.net/company/rates.html>. These prices may also be obtained by calling 1-800-395-8425.
2.2. Using EarthLink services for illegal purposes or in support of illegal activities. In accordance with Section 5.2.1 of the Internet Access Agreement, EarthLink reserves the right to cooperate with legal authorities and/or injured third parties in the investigation of any suspected crime or civil wrong. Activities which are prohibited as potentially illegal include, but are not limited to:
2.2.1. Unauthorized copying of copyrighted material including, but not limited to, digitization and distribution of photographs from magazines, books, or other copyrighted sources, and copyrighted software. 2.2.2. Exporting software or technical information in violation of U.S. export control laws.
2.2.3. Posting or emailing of scams such as 'make-money-fast' schemes or 'pyramid/chain' letters.
2.2.4. Threatening bodily harm or property damage to individuals or groups.
2.2.5. Making fraudulent offers of products, items, or services originating from your account.
2.2.6. Attempting to access the accounts of others, or attempting to penetrate security measures of EarthLink's or other entities' systems ("hacking"), whether or not the intrusion results in corruption or loss of data.
2.3. Harassing others by 'mail-bombing' or 'news-bombing'. 'Mail-bombing' constitutes sending more than ten (10) similar mail messages to the same email address. 'News bombing' constitutes sending more than 10Mb of data to a newsgroup.
2.3.1. Sending unsolicited email messages where the recipient objects to the content of the message or to the receipt of the message in general is also prohibited under this Section.
2.3.1.1. Member acknowledges that he/she/it is expressly prohibited from utilizing EarthLink Network's service, EarthLink Network's equipment or any EarthLink Network's electronic mail address in connection with the sending of the same or substantially similar unsolicited electronic mail message, whether commercial or not, to a large number of recipients. This prohibition extends to the sending of unsolicited mass mailings from another service which in any way implicates the use of EarthLink Network's service, EarthLink Network's equipment or any EarthLink Network's electronic mail address.
2.3.1.2. A message is unsolicited if it is posted in violation of a USENET or newsgroup charter and /or if it is sent to a recipient who has not requested or invited the message. For purposes of this provision, merely making one's e-mail address accessible to the public shall not constitute a request or invitation to receive messages.
2.3.1.3. Member specifically agrees that he/she/it will not utilize the EarthLink Network service, EarthLink Network's equipment or any EarthLink Network electronic mail address in connection with the transmission of the same or substantially similar unsolicited message to 50 or more recipients or 15 or more newsgroups in a single day. Members responsible for these acts may be terminated at EarthLink's discretion. For each day upon which this provision is violated, Member agrees to pay EarthLink Network $10.00 per day for an unintentional violation of this provision, but where warranted, such as in the case of an accidental transmission, EarthLink Network may waive all or part of the applicable charge. In cases of willful violations of this provision, Member agrees to pay EarthLink Network $200.00 per day. EarthLink Network at its sole discretion shall determine whether such a violation was unintentional or willful. Payment by member under this provision shall not prevent EarthLink Network from seeking to obtain other legal remedies against member, including other damages or an injunction.
2.4. Revealing your account password to others or allowing use of your account by others (other than authorized users in your household).
2.4.1 At no time can there be simultaneous use of the same username and password combination.
2.5. Forging any message header, in part or whole, of any electronic transmission, originating or passing through EarthLink services.
2.6. Distributing viruses to or from EarthLink systems.
2.7. Use of software or any device that would allow your account to stay logged on while you are not actively using EarthLink services or use the account for the purpose of operating a server of any type.
2.8. Cross-posting advertisements for products, items, or services to ten (10) or more unrelated USENET newsgroups.
2.9. Posting articles to any USENET or other newsgroup, mailing list or similar forum which are off-topic according to the charter or other public statement of the forum.
2.10. Disrupting any newsgroup with frivolous, excessively vulgar, or repetitious postings.
2.11. Posting of binary, or excessively large, unrelated text files to non-binary news groups that have specifically requested such material not be posted in the group's FAQ (Frequently Asked Questions).
2.12. Installation of 'auto-responders', 'cancel-bots' or similar automated or manual routines which generate excessive amounts of net traffic, or disrupt net newsgroups or email use by others.
2.13. Engaging in any of the above activities using the service of another provider but channeling such activities through an EarthLink account or re-mailer, or using an EarthLink account as a mail drop for responses.
3. EarthLink Assumes No Liability
EarthLink has no practical ability to restrict all conduct, communications or content which might violate this Policy prior to its transmission on EarthLink's systems, nor can EarthLink ensure prompt removal of any such communications or content after transmission or posting. Accordingly, EarthLink does not assume liability to subscribers or others for any failure to enforce the terms of this Policy.
4. Revisions to this Policy
EarthLink reserves the right to modify this Policy at any time upon at least thirty (30) days prior notice. Notice of modifications to this Policy may be given to subscribers by posting such changes to the EarthLink homepage <http://www.earthlink.net>, by electronic mail, or by conventional mail.
CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT. BY INSTALLING AND USING THE EARTHLINK NETWORK TOTALACCESS SOFTWARE, YOU INDICATE YOUR ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS AND YOU AGREE TO BE BOUND BY ALL OF THEM. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, DO NOT INSTALL OR USE THE EARTHLINK NETWORK TOTALACCESS SOFTWARE.
THE EARTHLINK NETWORK TOTALACCESS SOFTWARE AND DOCUMENTATION ARE PROVIDED FOR USE ONLY (I) WITH THE INTERNET ACCESS OR INTRANET ACCESS SERVICE OFFERED BY EARTHLINK NETWORK, INC. ("EARTHLINK") IN CONJUNCTION WITH THE DISTRIBUTION OF THE EARTHLINK NETWORK TOTALACCESS SOFTWARE AND DOCUMENTATION AND (II) IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. NO RIGHT OR LICENSE IS GRANTED TO USE THE EARTHLINK NETWORK TOTALACCESS SOFTWARE, DOCUMENTATION, OR ANY COMPONENT OF THE EARTHLINK NETWORK TOTALACCESS SOFTWARE OR DOCUMENTATION WITH ANY OTHER INTERNET ACCESS OR INTRANET ACCESS SERVICE.
THIS AGREEMENT CONSTITUTES THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND EARTHLINK WITH RESPECT TO THE EARTHLINK NETWORK TOTALACCESS SOFTWARE. THIS AGREEMENT SUPERSEDES ANY WRITTEN OR ORAL PROPOSAL , PRIOR AGREEMENT, OR OTHER COMMUNICATION RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
Section 1. License Grant. Subject to the provisions contained herein and payment of applicable fees, EarthLink hereby grants to Customer ("You") a personal, non-exclusive, non-transferable and non-assignable license to install and use the accompanying versions of the proprietary EarthLink Network TotalAccess software in object code format, its associated documentation and any updates thereto ("Licensed Program") on a single computer of which You are the primary user ("Authorized System"). The Licensed Program may include one or more of the following programs: Apple Computer, Inc. MacTCP; Merit Network, Inc. MacPPP or etherPPP; Microsoft® Internet Explorer; Netscape® Navigator'; QUALCOMM Eudora-Light®; Network TeleSystems, Inc. TCP/IP Software for Windows®; and other software which may from time to time be included in the Licensed Program ("Software"). You agree to use the Licensed Program solely in conjunction with EarthLink's Internet Service and for no other purpose. EarthLink may modify the Licensed Program at any time for any reason. You agree to use only the most recent version of the Licensed Program and destroy or return to EarthLink at its request any superseded version of the Licensed Program.
Section 2. Intellectual Property Rights. You acknowledge and agree that the Licensed Program constitutes confidential and proprietary information of EarthLink and EarthLink's licensors and embodies trade secrets and intellectual property protected under United States copyright and other laws and international treaty provisions. You further acknowledge that 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. You agree not to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, distribute, remarket or otherwise dispose of the Licensed Program or any part thereof. You agree not to remove, obscure or alter any notice of patent, copyright, trademark, trade secret or other proprietary right in the Licensed Program. You may not duplicate the Licensed Program except to make one (1) copy of the Licensed Program solely for Your backup purposes. Such backup copy shall include all copyright and other proprietary notices contained in or on the original Licensed Program and shall be subject to all of the terms of this Agreement.
Section 3. Term; Termination. This Agreement and the license hereunder shall be effective from Your first installation or use of the Licensed Program. This Agreement automatically ends upon the termination for any reason of the EarthLink Network Internet Access Agreement between EarthLink and You. In addition, if EarthLink in its sole judgment believes that the Licensed Program is being used by You for a purpose not approved by EarthLink, that EarthLink or EarthLink licensors' rights are being jeopardized or that You are in default under this Agreement or any other agreement between You and EarthLink, EarthLink may immediately terminate this Agreement. Upon termination or expiration of this Agreement, the license granted to You hereunder shall immediately termi nate and You shall immediately cease to use the Licensed Program and destroy or, at EarthLink's request, return all copies of the Licensed Program to EarthLink. EarthLink's right to enforce the provisions of Sections 2-9 of this Agreement shall survive termination of this Agreement.
Section 4. Exclusion of Warranties. THE LICENSED PROGRAM IS LICENSED "AS IS." NO WARRANTY, REPRESENTATION, CONDITION, UNDERTAKING OR TERM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE CONDITION, QUALITY, DURABILITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF THE LICENSED PROGRAM IS GIVEN OR ASSUMED BY EARTHLINK, ITS LICENSORS OR ITS AGENTS AND ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
Section 5. Limitation of Damages. EARTHLINK, ITS LICENSORS AND ITS AGENTS SHALL IN NO EVENT BE LIABLE TO YOU FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST SAVINGS OR, TO THE EXTENT ALLOWED BY APPLICABLE LAW, DAMAGES RESULTING FROM DEATH OR INJURY OF CUSTOMER OR ANYONE ELSE) ARISING OUT OF OR IN CONNECTION WITH THE INSTALLATION, USE, IMPROPER USE, OR INABILITY TO USE THE LICENSED PROGRAM AND/OR ANY INFORMATION OBTAINED THROUGH THE USE OF THE LICENSED PROGRAM, EVEN IF EARTHLINK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE EXCLUSIONS OF INCIDENTAL AND CONSEQUENTIAL DAMAGES MAY NOT APPLY TO YOU.
Section 6. Export Controls. You may not download, use or otherwise export or re-export the Licensed Program 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, neither the Licensed Program nor any 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 represent and warrant that You are not located in, under the control of or a national or resident of any such country or on any such list.
Section 7. U.S. Government Restricted Rights. Use, duplication or disclosure of the Licensed Program by the United States Government is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52-227.19, as applicable. Contractor/manufacturer is EarthLink Network, Inc., 3100 New York Boulevard, Pasadena, California, 91107.
Section 8. Third Party Beneficiaries. You agree that EarthLink's licensors including, but not limited to, Netscape Communications Corporation, Microsoft Corporation, Apple Computer, Inc. and Network TeleSystems, Inc., are direct and intended third party beneficiaries of this Agreement. To the extent the software of other software licensors/providers is included in the Licensed Program, such software licensors/providers shall also be deemed third party beneficiaries of this Agreement.
Section 9. Miscellaneous. The terms of this Agreement may not be amended or modified by You. You may not assign its rights or delegate any of its duties under this Agreement, and any attempted assignment or delegation shall be void. If one or more provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired thereby. This Agreement shall be governed by the substantive laws of the State of California, United States of America, excluding (i) the conflicts of law provisions thereof, and (ii) the United Nations Convention on Contracts for the International Sale of Goods. Any tax or duty that may be due or payable as a result of this Agreement or the license granted herein shall be paid by You.
EarthLink Network TotalAccess is a trademark of EarthLink Network, Inc.
EarthLink Network is a registered trademark of EarthLink Network, Inc.
Microsoft and Windows are registered trademarks of Microsoft Corporation.
Netscape Navigator is a trademark of the Netscape Communications Corporation.
Netscape is a registered trademark of Netscape Communications Corporation.
Eudora-Light is a registered trademark of the University of Illinois
Board of Trustees, licensed to QUALCOMM Incorporated.
