EXHIBIT 10.3
EARTHLINK SERVICE AGREEMENT
Thank you for choosing EarthLink's DSL Services for your Internet needs. Once
this order is accepted by EarthLink, this order package (including all
attachments) will constitute a binding agreement between you and EarthLink ("the
Agreement") for the Service(s) on the attached Product/Service Quote.
Fees
Fees include without limitation, set up fees, monthly service fee, and equipment
fees and other applicable costs set forth above. EarthLink will invoice fees for
Services and any equipment in advance. You agree to pay all federal, state or
local taxes arising under this Agreement. Payment terms shall be net 30 days
from date of invoice. You are solely responsible for the payment of all
telephone company charges. Setup fees are not refundable. If you deem it
necessary to re-terminate the circuit (move to new location), you will be
responsible for additional EarthLink and telephone company fees. EarthLink is
not responsible for Service disruptions caused by re-termination.
Purchase Orders
All purchase orders are subject to credit approval by EarthLink. You agree to be
bound by the terms and conditions of the Agreement, any printed terms and
conditions in the purchase order shall be of no force and effect. Purchase
orders must be submitted in writing, a purchase order number alone will not
suffice. Invoices based on approved Purchase Orders shall have payment terms of
net 30.
Credit Cards
By providing your credit card number and your signature at the end of this order
package, you authorize EarthLink to charge your credit card for the options
checked above. Your EarthLink account will be considered delinquent if your
credit card company refuses for any reason to pay the amount billed to it and
that amount remains unpaid at the beginning of the next accounting cycle.
Price Changes
Customer acknowledges and agrees that EarthLink has the right to change its
charges at any time subject to applicable law and upon notice to Customer.
Customer Charges
Customer acknowledges that Customer may incur charges while using the Services.
For example, charges may be incurred as a result of accessing certain
information, or purchasing or subscribing to certain offerings, via the
Internet. Customer agrees that all charges, including all applicable taxes,
shall be paid by Customer and are not the responsibility of EarthLink.
Term
The term of this Agreement shall commence on the Effective Date and continue for
as long as EarthLink provides any Services to you hereunder. The term for any
Services shall automatically renew on a month-to-month basis at your current
rate following your expiration, unless you notify EarthLink in writing at least
thirty (30) days in advance of your intent to cancel.
Termination. Service may be terminated by you or EarthLink for any reason
effective at the end of a calendar month by providing written notice to the
other party at least thirty (30) days prior to the requested termination date.
EarthLink may terminate your account immediately if it determines, in its sole
discretion, that you have violated any of the provisions of the Agreement. If
you fail to make any payment to EarthLink for thirty (30) days or more,
EarthLink may terminate this Agreement and/or disable the Service. To re-enable
Service, EarthLink will require a reconnection fee. Termination does not affect
your obligations under this Agreement, including your obligation to pay all fees
for Services rendered prior to termination and any penalties incurred by such
termination. If your account includes space on EarthLink's server, anything
stored on this space will be deleted upon inactivation. In the event that you
terminate the Services prior to the expiration of your chosen term, EarthLink
will charge an early termination penalty as follows: 1 year term = 1 month
service fee penalty.
To cancel your account, you must contact EarthLink's Customer Service department
at 0-000-000-0000. All EarthLink accounts must be paid in full before a
cancellation will be considered complete. In the event you upgrade your SDSL
Service, you will be required to sign a new Order Package and begin a new term
for the replacing service. There is no penalty for early termination if you
upgrade your Service.
Schedule of Minimum Service Requirements and Charges
These charges are current as of the published date, but are subject to change at
any time, subject to applicable law and notice to Customer.
Updated as of 09/01/01
1. Minimum Service Requirement
Customer agrees to maintain the SDSL Services for a minimum period of
one year. If prior to the end of the one year term, Customer cancels
the Services for any reason or EarthLink terminates the Agreement due
to Customer's breach of the Agreement, Customer agrees to pay to
EarthLink an early termination charge as indicated in this Agreement.
2. Installation And Equipment Charge
(a) Retail Prices. Installation, Equipment and Setup are billed as a
one-time charge of $499.00 for Hardware and $225.00 for Setup. This
rate is subject to periodic discounts and promotions. The actual amount
charged for installation and equipment will match the current
promotional rate for Customer's market.
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(b) Non-Refundable Charge. Upon placing the order for the Services,
Customer's credit card will be charged per the Product Service Quote
attached to this Agreement. This amount is non-refundable unless
EarthLink is unable to deliver the agreed Services. EarthLink will xxxx
the balance of the Installation and Equipment charge to Customer's
credit card at the completion of Installation.
3. Monthly Service Charge
The recurring charge payable by Customer for the Services is as stated
on the Product Service Quote attached.
4. Dial-Up Roaming Account
Customer may use traditional analog "dialup" service from EarthLink's
network of nationwide dial access numbers. EarthLink shall provide
Customer one unlimited Works Dial Up Service Plan per month at no
charge. Please see
xxxx://xxx.xxxxxxxxx.xxx/xxxxx/xxxxxxxx/xxxx/xxxxx.xxxx for additional
terms and conditions for dial up services.
Terms and Conditions for EarthLink Dedicated Services
All use of the EarthLink network and services must comply with the then-current
version of the EarthLink Acceptable Use Policy (AUP), which is made apart of
this Agreement and is available at:
xxxx://xxx.xxxxxxxxx.xxx/xxxxx/xxxxxxxx/xxx/xxxxx.xxxx. EarthLink may change the
AUP or these terms of service at any time. Such changes and their effective date
will be posted on the EarthLink Web site or brought to your attention by
appropriate means. You agree to review the AUP and the terms of service
periodically, and if any change is not acceptable to you, you agree to terminate
your subscription or authorized use by notifying the EarthLink Customer Service
Department. Your continued use of EarthLink services after the effective date of
any such change constitutes acceptance of all the changes.
1.0 Services
1.1 This Agreement establishes the terms and conditions for Dedicated
Services offered by EarthLink. You may not lease, rent, transfer or
resell EarthLink Services or any portion of EarthLink Services to any
other party in any other way. You may not use EarthLink Services to
compete with EarthLink or promote products or services which compete
with EarthLink.
1.2 You are responsible for obtaining and maintaining any communications
equipment necessary to connect to EarthLink services, including
modems, computer hardware and software, and long distance or local
telephone service. You are responsible for ensuring that such
equipment or service is compatible with EarthLink's requirements. In
addition, you are responsible for maintaining the security of your
account, password, files, network and user access, and any
information you disseminate through EarthLink
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services or other Internet services, and for all use of your account
with or without your knowledge or consent.
1.3 If EarthLink receives complaints or otherwise becomes aware of
possible violations of the Agreement, EarthLink may, in its sole
discretion, initiate an investigation. This investigation may include
gathering information from and about account holders and examining
the content of personal electronic communications, Web pages or
EarthLink Personal Pages on EarthLink's servers. During any
investigation, EarthLink may suspend services to any Customer being
investigated. You agree to cooperate with any such investigation.
Violations of this nature could subject you to criminal or civil
liability including monetary damages and a $200 handling fee charged
to your EarthLink account.
1.4 IP address blocks are assigned by EarthLink for Company use only and
it is understood that EarthLink will not guarantee routing of any IPs
of any user other than the Company, even if IP address is part of a
block assigned to the company by EarthLink. Multi-homing (connection
to EarthLink and one or more other ISPs simultaneously) is supported
via BGP at an additional cost to the Customer. If Company runs out of
addresses and is assigned a new address block, Company has 30 days to
renumber and return the initial address block. Large address block
requests may require written justification for American Registry for
Internet Numbers. IP addresses are not portable and remain allocated
to EarthLink. If EarthLink requests the Company renumber address
space, Company agrees to do so within 30 days of request. If Company
discontinues service with EarthLink, Company will return all IP
addresses issued by EarthLink back to EarthLink. In addition,
EarthLink will have no responsibility or liability for any actions or
costs incurred by Company in obtaining or reconfiguring its equipment
with new IP addresses if Service is terminated for any reason.
1.5 Requests for changes in some services require 60 days prior written
notice.
2.0 Content and Security
2.1 EarthLink exercises no control whatsoever over the content of
information passing through its network or equipment. You agree that
all claims, disputes or wrongdoing which result from or which are
related in any way to the content of information passing through
EarthLink's network or equipment are your sole and exclusive
responsibility. If the Service includes space on EarthLink's server,
you take full responsibility for the use of the Services by any
minors and hereby consent to such minor's use of the Service.
2.2 Company understands that internetworking communications are not
secure, and may be subject to interception or loss. Company is
responsible for its network security. EarthLink will not be liable
for damages arising out of unauthorized access to Company's network.
3.0 "As Is" Services; Limitation of Liability; Indemnification.
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This Section 3 shall survive the termination of the Agreement.
3.1 The Services and any equipment and software provided to you by
EarthLink are provided AS IS, WITHOUT WARRANTY OF ANY KIND, INCLUDING
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. YOU AGREE THAT EARTHLINK WILL NOT BE LIABLE FOR
ANY LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY
DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND
WHETHER UNDER THIS AGREEMENT OR OTHERWISE ARISING OUT OF OR RELATED
TO THE AGREEMENT OR YOUR USE OF OR INABILITY TO USE EARTHLINK
SERVICES, EVEN IF EARTHLINK IS ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. EARTHLINK'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL
SHALL BE AT EARTHLINK'S OPTION, EITHER RETURN OF THE SERVICE FEES
PAID FOR THE CURRENT MONTH OF SERVICE AND ANY SET-UP FEES PAID, OR
REPLACEMENT OF CONNECTION SERVICES OR PRODUCTS. In any case,
EarthLink's entire liability under or arising out of this Agreement
will be limited to the amount you paid for the Services in the twelve
(12) months prior to the act or injury that gave rise to the
liability. However, some jurisdictions may not allow a limitation on
liability for negligence that causes death or personal injury, and
EarthLink limits its liability in such jurisdictions only to the
degree allowed by applicable laws.
3.2 EarthLink, its employees, agents, suppliers, vendors and distributors
make no warranty of any kind, either express or implied, regarding
the quality, accuracy, or validity of the data and/or information
available on its systems, or residing on or passing through its
networks, or that EarthLink Services will be uninterrupted or error
free. Use of information obtained from or through EarthLink is at
your own risk. Under no circumstances will EarthLink be liable to you
or any other person for any loss or damage caused by reliance on data
or information available from or on EarthLink's services and systems.
3.3 You agree to defend, indemnify and hold EarthLink harmless from any
claims, losses and damages, including attorney's fees, resulting from
your violation of any of the provisions of this Agreement or your
placement or transmission of any materials or content onto
EarthLink's servers or through its network, or from any and all use
of your account, with or without your knowledge or consent, or from
claims related to any action taken by EarthLink as part of its
investigation of a suspected violation of this Agreement or as a
result of its conclusion that a violation of this Agreement has
occurred, or to your use of or inability to use EarthLink Services,
equipment, bundled software or the Internet.
4.0 Miscellaneous
This Agreement will be governed by and construed under the laws of the
State of Georgia. You shall not sell, transfer or assign this Agreement.
Except for the payment of money, neither party will be liable for any
failure or delay in performance under the Agreement which
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might be due, in whole or in part, directly or indirectly, to any
contingency, delay, failure, or cause of any nature beyond the reasonable
control of such party, including without limitation acts of nature, court
or government. Facsimile signatures and initials on this Agreement shall
bind the parties to the same degree as original signatures. You agree that
exclusive jurisdiction for any claim or dispute with EarthLink or relating
in any way to your account or your use of the Services resides in the
courts of Georgia. You expressly consent to the exercise of personal
jurisdiction in the courts of Georgia in connection with any such dispute.
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FEATURES
EarthLink Biz DSL service includes:
o 10 Mailboxes
o 10MB personal Web space
o Unlimited Dial-Up access account (EarthLink's Works package)
o Professional installation services
o Up to 8 Static IP addresses (as justified )**
o DSL Router with firewall capabilities
o 24/7 toll-free technical support
EarthLink Biz DSL value-added services:
o Domain Name registration*
o Primary and/or secondary Domain Name Service (DNS) for 1 Domain Name
o Local-loop ordering o A wide range of high-speed access options
o Network newsreader access
o Field technician on-site visit+
o Router configuration
* Domain name registration fees are billed separately by the Registrar
** Additional IP addresses may be ordered for an additional fee
+ Includes up to 20 minutes of inside wiring
BENEFITS
Always-on connectivity
o No more dialing, no more waiting, no more busy signals
o Remain connected 24/7
o Easy to use and access
o Connect multiple PCs to the Net through a single, always-on connection
Increase your productivity
o Improved customer service levels
o Access to critical information at a moment's notice
o Increased productivity for frequent Internet users
o Run electronic commerce, Web servers, FTP, local email services at
your site
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Increased online speed
o Up to 50 times faster than a 28.8 Kbps modem
o T1-like speeds at a fraction of the cost
o Super-fast downloads: Download a 4MB file in 25 seconds, not the 10
minutes it would take using a 56 Kbps modem
o Same high-speed access both to and from the Internet
Affordable pricing
o Select the speed you need at the price that's right for your business
o Less expensive than T1 and other dedicated connections
Award-winning customer support staff
o Receive 24/7 technical assistance
o Dedicated EarthLink Biz DSL support staff really understands your
needs
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PRICING
EarthLink Biz DSL offers speeds to fit your needs at prices that fit your
budget.+
Monthly Fee:
Product Monthly Fee
------- -----------
EarthLink Biz DSL - 144 Kbps IDSL $129
EarthLink Biz DSL - 192 Kbps SDSL $139
EarthLink Biz DSL - 384 Kbps SDSL $199
EarthLink Biz DSL - 768 Kbps SDSL $289
EarthLink Biz DSL - 1.1 Mbps SDSL $349
EarthLink Biz DSL - 1.5 Mbps SDSL $399
One time set-up fees:
Professional Installation: $225
Equipment: $249*
Pricing includes local loop fees and represents one-year term rates; all
services require a minimum one-year term contract; month-to-month pricing is not
available.
+ Not all speeds are available at all locations. Your maximum speed is based
on your distance from the central office of your local telephone company.
Please check the availability of Biz DSL at your location.
* After $150 rebate - Details on the Netopia router rebate. EarthLink Biz DSL
service must be purchased by 03-31-02.
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