BY CLICKING THE "I AGREE" BUTTON AT THE END OF THIS DOCUMENT, OR DOWNLOADING OR USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE LICENSE AGREEMENT BELOW. READ IT CAREFULLY. THE FOLLOWING IS A SUMMARY OF A FEW OF ITS IMPORTANT TERMS. Any disputes between the language of this summary and the language of the license agreement itself shall be resolved in favor of the license agreement itself.
Summary
1. This Software is provided solely to facilitate your use of EarthLink Network, Inc.'s ("EarthLink") Internet access service ("Service"). You are being granted no rights to the use or possession of the Software other than as an adjunct to the Service. When you cease being a customer of EarthLink, your rights in and to the use and possession of this Software will cease, and this Software would then have to be returned to EarthLink or destroyed by you.
2. Your license to use this Software is dependent on your abiding by EarthLink's Online Information Service Terms and Operating Rules, and by its Acceptable Use Policies, both of which are available from EarthLink's home page.
3. Neither EarthLink nor any of the people or companies involved in bringing this Software to you are liable to you for any failures or faults of the Software or of the Service.
End of Summary
EARTHLINK NETWORK TOTALACCESS(TM) SOFTWARE END-USER FULL LICENSE AGREEMENT
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND EARTHLINK NETWORK, INC. ("EARTHLINK"). BEFORE YOU OPEN THE PACKAGE CONTAINING THE MEDIA, OR CLICK THE "ACCEPT" BUTTON AT THE END OF THIS DOCUMENT, OR DOWNLOAD OR USE THE SOFTWARE, CAREFULLY READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
ALSO CAREFULLY READ EARTHLINK'S ONLINE INFORMATION SERVICE AGREEMENT TERMS AND OPERATING RULES AND EARTHLINK'S ACCEPTABLE USE POLICIES (AS MODIFIED BY EARTHLINK FROM TIME TO TIME), WHICH ARE INCORPORATED INTO THIS AGREEMENT (EXCEPT TO THE EXTENT THEY ARE INCONSISTENT WITH THIS AGREEMENT). EARTHLINK'S ONLINE INFORMATION SERVICE AGREEMENT, AND ITS ACCEPTABLE USE POLICIES, ARE ACCESSIBLE FROM EARTHLINK'S HOME PAGE.
USING THE SOFTWARE INDICATES THAT YOU ACCEPT THE TERMS OF THIS AGREEMENT. BY OPENING THE PACKAGE, CLICKING ON THE "ACCEPT" BUTTON, DOWNLOADING OR USING 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 OR USE THIS SOFTWARE AND YOU MUST CLICK THE "DO NOT ACCEPT" BUTTON OR RETURN THIS PRODUCT TO THE PLACE OF PURCHASE FOR A FULL REFUND.
License Grant. Subject to the provisions contained herein and payment of applicable fees, EarthLink hereby grants to you a personal, non-exclusive, non-transferable and non-assignable license (the "License") to use the accompanying versions of the proprietary EarthLink Network TotalAccess(TM) software suite. The Software may include one or more of the following programs:
Microsoft(r) Internet Explorer;
Software from Network TeleSystems, Inc. ("Software");
Microsoft Video;
Shockwave;
Streamworks;
RealAudio;
Quicktime;
Web Workshop;
Surfwatch;
VocalTec's Internet PHONE(tm);
Internet Yellow Pages(tm);
Air Warrior(r);
Poker(tm);
Hyperblade;
Internet Coach;
United Airlines Connect(r);
Adobe Acrobat;
Stuffit Expander;
InstallerMaker;
The Software is for your own use, only on EarthLink Network's Internet Service and only when all of the Software is used together on a single computer of which you are the primary user. The Software is protected by the copyright laws of the United States and international copyright treaties. Unauthorized copying of the Software, including software that has been modified, merged or included with the Software, or the associated written materials (the "Documentation") is expressly forbidden. You may not sublicense, assign or transfer this License or the Software except as permitted by EarthLink. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this License is void. You may not remove, obscure, or alter any notice of patent, copyright, trademarks, trade secret or other proprietary rights in the Software. You may not transmit the Software from one computer to another in a network or to serve multiple users. You agree that Microsoft Corporation and Network TeleSystems, Inc. (collectively, "Licensors") are direct and intended third party beneficiaries of this Agreement.
Limited Copies. EarthLink shall furnish the Software to you electronically or on media in machine-readable object code form. Solely for your own backup purposes, you may make a single copy of the Software in the same form as provided to you. This License does not grant you any right to any enhancement or update 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. Any copy made by you as permitted hereunder for backup or archival purposes 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 confidential trade secrets 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.
No Warranties. EarthLink has made reasonable checks of the Software to confirm that it will perform in normal use on compatible equipment substantially as described in the then-current specifications for the Software. However, due to the inherently complex nature of computer software, neither EarthLink, its Licensors, nor its suppliers, distributors, resellers, or any parties with which EarthLink co-brands the Software (collectively, "Providers") warrant that the Software or the Documentation is completely error free, will operate without interruption, is compatible with all equipment and software configurations, or will otherwise meet your needs. The Providers do not warrant 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. ACCORDINGLY, THE SOFTWARE AND ANY DOCUMENTATION ARE PROVIDED AS-IS, AND YOU ASSUME ALL RISKS ASSOCIATED WITH THEIR USE. THE PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED AND EXPRESSLY DISCLAIMS ANY WARRANTY WITH RESPECT TO THE SOFTWARE OR THE DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, THEIR MERCHANTABILITY, THEIR FITNESS FOR ANY PARTICULAR PURPOSE, ANY WARRANTY OF THEIR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR THAT THE SOFTWARE IS VIRUS FREE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY OR INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION BY APPLICABLE LAW. TO THAT EXTENT, ALL WARRANTIES, EXPRESS OR IMPLIED, WILL TERMINATE UPON THE EXPIRATION OF 90 DAYS FOLLOWING DELIVERY OF THE SOFTWARE TO YOU. IN NO EVENT WILL THE PROVIDERS BE LIABLE FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF INCOME, USE, OR INFORMATION. AS YOUR SOLE REMEDY FOR ANY BREACH OF WARRANTY, you may return to EarthLink the original copies of the Software and Documentation (if any), along with proof of purchase (if you purchased the Software) and any backup copies, for replacement or (at EarthLink's choice) for a refund of the amount you paid, provided the return is completed within 90 days following delivery of the Software to you. SOME STATES DO NOT ALLOW LIMITATION 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. THIS AGREEMENT 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 THE PROVIDERS 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 THE PRICE PAID BY YOU FOR A LICENSE TO THE SOFTWARE, EVEN IF ANY OF THE PROVIDERS 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.
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.
Termination. This Agreement shall immediately terminate without notice or opportunity to oppose: (i) in the event of default by you of any term or condition of this Agreement, the Online Information Service Agreement Terms and Operating Rules, or the Acceptable Use Policies ("AUP") established by EarthLink and updated by EarthLink from time to time, or (ii) if your EarthLink Network Internet Service account expires or is terminated for any reason including, without limitation, your failure to pay service fees when due, your voluntary cancellation of your account, or EarthLink's or any other party's involuntary cancellation of your account for any reason whatsoever including but not limited to your failure to comply with any AUP. Upon any termination of this Agreement the License shall immediately terminate, you shall immediately discontinue the use of the Software and shall, within five (5) days, return to EarthLink or destroy 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 constructed 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. EarthLink is not bound by any actions or statements of its distributors, nor by any provision of any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless EarthLink specifically agrees in writing to same.
EarthLink Address. EarthLink Network, Inc., 3100 New York Drive, Pasadena, California 91107, (818) 296 2400.
I Agree: I agree to these terms.
Cancel: I do not agree to these terms.
EarthLink Network TotalAccess(TM) is a trademark of EarthLink Network, Inc.
EarthLink Network(r) is a registered trademark of EarthLink Network, Inc.
Microsoft(r) is a registered trademark of Microsoft Corporation in the United States and other countries.
Microsoft(r) Internet Explorer is a trademark of Microsoft Corporation.
Portions of this software are Copyright (c) 1990-94 Aladdin Systems, Inc. and Raymond Lau
Copyright (c) 1996 EarthLink Network, Inc.
[Company & Services]
Subscriber Acceptable Use Policy
1. Introduction
The goal of EarthLink Network«, Inc. ("EarthLink") is to provide you the best service possible for an enjoyable Internet experience. This Acceptable Use Policy ("AUP" or "Policy") is designed to keep EarthLink and the Internet enjoyable and useful for all of our subscribers. Violation of this Policy may result in suspension or cancellation of EarthLink
services. This Policy should be read and interpreted in conjunction with the EarthLink Network Internet
Access Agreement.
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 Policy.
2. Policies
The following are violations of EarthLink policies:
2.1. Using a personal account for high volume or commercial use. If you would like to provide high-volume or commercial services, please contact EarthLink Business Sales Department for information about opening up a commercial account. Activities which are prohibited as high volume include, but are not limited to:
2.1.1. Exceeding 10MB of disk space for your email box. Any email box exceeding 10MB will have incoming mail bounced until the user removes email from the server.
2.1.2. Exceeding 2MB of disk space for Free Web sites. Any Free Web site exceeding 2MB will be suspended, until the customer brings the disk usage under 2MB.
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 (please refer to EarthLink's billing rates).
2.2. Using EarthLink services for illegal purposes, or in support of illegal activities. 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 beyond security measures of our or other systems (referred to as 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 10Mbytes of data to a newsgroup.
2.4. Revealing your account password to others or allowing use of your account by others (other than authorized users in your household). At no time can there be simultaneous use of the same user name 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 news group, 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 transmission on EarthLink Network, 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.
