EARTHLINK WIRELESS HIGH SPEED AGREEMENT AND SOFTWARE LICENSE AGREEMENT

READ THIS AGREEMENT CAREFULLY BEFORE USING THE EARTHLINK WIRELESS HIGH SPEED SERVICES POWERED BY BOINGO.

1. INTRODUCTION.

EarthLink, Inc. ("EarthLink") is offering to qualifying EarthLink Members ("Members") the EarthLink Wireless High Speed Service Powered by Boingo Service ("EarthLink Wireless High Speed Service"). By establishing an account for use of the EarthLink Wireless High Speed Service and by establishing an account or using any software (the "Software") provided, developed, licensed or owned by Boingo Wireless, Inc ("Boingo"), you agree to be bound by this EarthLink Wireless High Speed Service Agreement (the "EarthLink Wireless High Speed Service Agreement") and to use the EarthLink Wireless High Speed Service in compliance with this Agreement and the EarthLink Acceptable Use Policy.

If you do not agree to the terms and conditions of this EarthLink Wireless High Speed Service Agreement, you must terminate your use of the EarthLink Wireless High Speed Service under Subsection 9 and remove, stop any installation process, and/or discontinue use of any Software.

2. QUALIFYING CRITERIA.

Members must be at least 18 years old. Access points or enabled venues may not be available in all areas.

3. PAYMENT OBLIGATIONS.

Members must (i) provide EarthLink with accurate and complete billing information including legal name, address, telephone number, and credit card/billing information, and (ii) report to EarthLink all changes to this information within thirty (30) days of the change. Members are responsible for any charges to their account.

Members having questions regarding charges to an account should contact EarthLink's Customer Service Department at 888-303-3843. All charges are considered valid unless disputed in writing within sixty (60) days of the billing date. Adjustments will not be made for charges that are more than 60 days old.

Charges for the EarthLink Wireless High Speed Service are billed monthly to Members' credit cards or debit cards, as applicable, for the basic service and any additional usage or services. EarthLink is not responsible for any charges or expenses (e.g. for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by EarthLink.

If you pay for EarthLink Wireless High Speed Service through a prepayment plan, automatic billing described above shall only apply to the charges not paid for through the prepayment plan.

Delinquent accounts may be suspended or canceled at EarthLink's sole discretion; however, charges will continue to accrue until the account is canceled. EarthLink may bill an additional charge to reinstate a suspended account. Some bill plans may include a fee for early termination.

EarthLink reserves the right to change prices and institute new fees at any time upon 30 days prior notice.

4. THE EARTHLINK WIRELESS HIGH SPEED SERVICE.

Upon EarthLink's acceptance of your registration for the EarthLink Wireless High Speed Service, EarthLink will provide you with username, password and user identification number. You and members of your household are the only authorized users of your EarthLink account and must comply with this Agreement. You must keep your password confidential so that no one else may access the EarthLink Wireless High Speed Service through your account. You must notify EarthLink immediately upon discovering any unauthorized use of your account.

Using a personal account for high volume or commercial use (e.g., revenue generation, advertising, etc.) is prohibited. Usernames and passwords are EarthLink's property and EarthLink may alter or replace them at any time.

5. USE OF LICENSED PROGRAMS.

Boingo grants to each Member a limited, nonexclusive, nontransferable and non-assignable license to install and use the Software, its associated documentation, and any updates thereto ("Licensed Programs") solely for personal or internal business purposes, including accessing and utilizing the Services. Boingo may modify the Licensed Programs at any time, for any reason, and without providing notice of such modification to the Members. This license does not entitle Member to receive hard-copy documentation, technical support, telephone assistance or enhancements or updates to the Licensed Programs.

You may not: (1) redistribute the Licensed Programs; (2) permit other individuals to use the Licensed Programs; (3) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction) or create derivative works based upon the Licensed Programs; (4) copy the Licensed Programs (except for back-up or archival purposes); (5) rent, lease, transfer, encumber, sublicense or otherwise transfer rights to the Licensed Programs; or (6) remove any proprietary notices or labels on the Licensed Programs. Any such forbidden use shall immediately terminate your license to the Licensed Programs. You also agree to only use the Licensed Programs in a manner that complies with all applicable laws in the jurisdictions in which you use the Licensed Programs, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.

The Licensed Programs may automatically communicate with Boingo's servers on the Internet to check for updates to the Licensed Programs, such as bug fixes, patches, enhanced functions and new versions. Boingo will notify you when updates are available. If you decide to update, you agree that Boingo may download updates and install them as part of the Licensed Programs. All such updates to the Licensed Programs are governed by this Agreement, unless other license terms are provided with the update. Although Boingo uses encryption technology to provide security for the auto update process, Boingo is not responsible for the failure of such security measures.

Title, ownership rights and intellectual property rights in and to the Licensed Programs shall remain in and with Boingo and/or its licensors. The Licensed Programs constitute confidential and proprietary information of Boingo and Boingo's licensors and embody trade secrets and intellectual property protected under United States copyright laws, other laws and international treaty provisions. You acknowledge such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Boingo's or its licensors' ownership of or rights with respect to the Licensed Programs. You agree, at your expense, to defend and hold Boingo and its affiliates, officers, directors and employees harmless from any and all costs, damages and reasonable attorneys' fees resulting from any claim that your use of the Licensed Programs have injured or otherwise violated any right of any third party or violates any law.

You may not download, use or otherwise export or re-export the Licensed Programs or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. By installing or downloading the Licensed Programs, you represent and warrant that you are not located in, under the control of or a national or resident of any country on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. You agree to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export or re-export the Licensed Programs or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, each party shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Licensed Programs from the U.S.

This license will automatically terminate if you fail to comply with any term hereof. No notice shall be required from EarthLink or Boingo to effect such termination. You also may terminate this license at any time by notifying EarthLink pursuant to Section 9. Upon any termination of this license, you shall immediately discontinue use of the Licensed Programs.

6. MONITORING THE EARTHLINK WIRELESS HIGH SPEED SERVICE.

EarthLink has no obligation to monitor the EarthLink Wireless High Speed Service, but may do so and disclose information regarding use of the EarthLink Wireless High Speed Service for any reason if EarthLink, in its sole discretion, believes that it is reasonable to do so, including to: satisfy laws, regulations, or governmental or legal requests; operate the EarthLink Wireless High Speed Service properly; or protect itself and its Members. Please see our Privacy Policy at www.earthlink.net/about/policies/privacy/. EarthLink may immediately remove your material or information from EarthLink's servers, in whole or in part, which EarthLink, in its sole and absolute discretion, determines to infringe another's property rights or to violate our Acceptable Use Policy at www.earthlink.net/about/policies/use/.

7. DISCLAIMER OF WARRANTIES and LIMITATION OF LIABILITY.

THE EARTHLINK WIRELESS HIGH SPEED SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EARTHLINK DOES NOT WARRANT THAT THE EARTHLINK WIRELESS HIGH SPEED SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. EARTHLINK MAKES NO EXPRESS WARRANTIES AND WAIVES ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING THE EARTHLINK WIRELESS HIGH SPEED SERVICE. NO ADVICE OR INFORMATION GIVEN BY EARTHLINK OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. EARTHLINK, ITS EMPLOYEES, AND EARTHLINK'S SUPPLIERS ARE NOT LIABLE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE EARTHLINK WIRELESS HIGH SPEED SERVICE INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. IN ANY EVENT, EARTHLINK'S CUMULATIVE LIABILITY TO ANY EARTHLINK MEMBER FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE EARTHLINK WIRELESS HIGH SPEED SERVICE SHALL NOT EXCEED $500.00.

8. TERM OF AGREEMENT.

The initial term of this agreement is set forth in the information that you received at the time of purchase. The initial term shall start from the date that the Service is first used ('Activation Date'). After the initial term has expired, this agreement will continue on a month-to-month basis. EarthLink reserves the right to change the price of the Service at any time upon 30 days notice. Notice of any price change, amendment, or modification will be posted on EarthLink's website (www.earthlink.net) and/or on your start pages and/or by email and/or in our various publications and mailings to you. Any price increase during your initial term will allow you to cancel the service as if the initial term had expired.

Continued use of the EarthLink Wireless High Speed Service constitutes acceptance of this Agreement and any future versions. If you are dissatisfied with the EarthLink Wireless High Speed Service or any related terms, conditions, rules, policies, guidelines, or practices, your sole and exclusive remedy is to discontinue using the EarthLink Wireless High Speed Service and, if you are a Member, to terminate your account.

9. TERMINATION.

You may terminate your account at any time and for any reason by providing notice of intent to terminate to EarthLink by registered or certified mail, return receipt requested, addressed to:

EarthLink Inc.
1375 Peachtree St., Level A
Atlanta, GA 30309

Or, you may call Customer Service at 888-303-3843.

E-mail termination of your EarthLink Wireless High Speed Service account will not be accepted. Based on your billing cycle, charges accrued prior to your termination may apply after you cancel. If your account included space on EarthLink's servers, anything stored on this space will be deleted upon termination.

Without prior notice, EarthLink may terminate this Agreement, your password, your account, or your use of the EarthLink Wireless High Speed Service, for any reason, including, without limitation, if EarthLink, in its sole discretion, believes you have violated this Agreement, our Acceptable Use Policy, or any other applicable user policies, or if you fail to pay any charges when due.

Sections 3, 4, 6, and 9 of this Agreement shall survive termination of this Agreement.

10. JURISDICTION.

California residents are entitled to the following information:

• The service is provided by EarthLink, Inc. 1375 Peachtree Street, Atlanta Georgia 30309. Phone: (800) 890-6356
• Charges vary depending of the type of service. Current pricing may be obtained from our website: www.earthlink.net. EarthLink reserves the right to change prices and institute new fees at any time upon 30 days prior notice.
• Complaints and questions about the service should be directed to EarthLink Customer Service at (800) 890-6356. The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814 or by telephone at (916) 445-1254.
• Actions arising from this agreement may be brought in an appropriate California small claims court.

For non-California residents, this Agreement is governed by Georgia law without regard to conflict of law provisions. Any controversy or claim arising out of or relating to this agreement, or the breach thereof, shall be settled by arbitration, and administered by the American Arbitration Association under its Commercial Arbitration Rules. Any such arbitration will be governed by Georgia law and will be held in Atlanta, Georgia. The arbitrator will be an expert in the field of Internet services. The arbitrators award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. There shall be no class action arbitration pursuant to this agreement.

11. MISCELLANEOUS.

EarthLink may revise, amend, or modify this EarthLink Wireless High Speed Service Agreement, the Acceptable Use Policy and any other user policies and agreements, at any time and in any manner. Notice of any revision, amendment, or modification will be posted on EarthLink's website (http://www.earthlink.net), by e-mail and/or in our various publications and mailings to Members. In the event that any provision of this Agreement is found to be invalid or unenforceable, the remainder of this EarthLink Wireless High Speed Service Agreement will remain valid and enforceable according to its terms.

v. 07/01/03