End User License Agreement
The following terms and conditions (“License”) govern you use of the myEarthLink™ Application (including any updates, upgrades and documentation, the “Application”). The terms of this License will govern any updates or upgrades to the Application, unless the update or upgrade is accompanied by a separate license in which case the terms of that license will govern.
This License is an agreement between EarthLink and you only, and not with Apple. You acknowledge and agree that Apple and its subsidiaries are third party beneficiaries of this License, and that, upon your acceptance of the terms and conditions of this License, Apple will have the right (and will be deemed to have accepted the right) to enforce this License against you as a third party beneficiary thereof. You acknowledge that EarthLink and not Apple shall be responsible for the Application, including for any warranties, maintenance or support obligations, and claims that may arise from the Application or your use of the Application, including, but not limited to, third party intellectual property infringement claims (including any investigation, defense, settlement or discharge of such claims), product liability claims, claims that the Application fails to conform to any applicable legal or regulatory requirements or claims arising under consumer protection or similar legislation.
Should you have any questions, complaints or claims regarding the Application or this License, you may email EarthLink at [email protected] including “myEarthLink Application” in the topic line or write to EarthLink, LLC, Attn: Legal Department (myEarthLink Application),980 Hammond Dr NE, Suite 400, Atlanta, GA 30328.
1. SCOPE OF LICENSE. EarthLink grants you a limited, non-transferable, revocable license to use the Application on any Apple-branded product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms and Conditions (the “Usage Rules”), except that the Application may be accessed, acquired and used by other accounts associated with you via Apple Family Sharing or volume purchasing. Except as permitted by this License and the Usage Rules, you may not (a) distribute or make the Application available over a network where it could be used by multiple devices at the same time; (b) rent, lease, lend, sell, redistribute or sublicense the Application; (c) decompile, reverse engineer, disassemble, attempt to derive the source code of, modify or create derivative works of the Application or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law); or (d) remove or alter any trademark, logo, copyright or other proprietary notice in the Application. If you breach these restrictions, you may be subject to prosecution and damages. The installation and use of any third party software provided by EarthLink to you that is not specifically included in the Application is governed by the license agreement offered by such third party with which you agree to comply. EarthLink retains all rights not expressly granted to you.
2. CONSENT TO USE OF DATA. EarthLink will use (but not collect, store or share) your location data in connection with your use of the Application, if you affirmatively consent to such use by EarthLink. Such location data will be stored in the Application. The Application will access your contacts on your device if you affirmatively consent to such access. To gain access to your EarthLink MyAccount or Email through the Application, you will need to enter your EarthLink user name and password. Your user name and password will be stored in the Application and you will be logged in to such EarthLink services until you affirmatively log out.
3. TERMINATION. This License is effective until terminated by you or EarthLink. Either party may terminate this License at any time for any reason. Your rights under this License will terminate automatically without notice from EarthLink if you fail to comply with any term(s) of this License. Upon termination of this License, you shall cease all use of the Application and destroy all copies, full or partial, of the Application. EarthLink may discontinue the Application or any feature of it at any time without notice or liability.
4. SERVICES; THIRD PARTY MATERIALS; ADDITIONAL LICENSE TERMS. The Application may enable access to EarthLink’s or third parties’ services including content feeds (collectively and individually, “Services”), and the Application and such Services may display, link to, include or make available content, data, information, applications or materials of third parties (“Third Party Materials”). Use of the Services may require Internet access and you to accept additional terms of service presented by EarthLink or such third parties. You agree that any Services and Third Party Materials may contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except as permitted. You agree not to modify, rent, lease, loan, sell, distribute, reproduce or create derivative works based on the Services or the Third Party Materials, in any manner. By using the Services and accessing such Third Party Materials, you acknowledge and agree that neither EarthLink nor Apple is responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, legality, decency, quality or any other aspect of the Services provided by third parties or the Third Party Materials. EarthLink and Apple do not warrant or endorse such third parties’ Services or the Third Party Materials. You agree to use the Services and the Third Party Materials at your sole risk and that neither EarthLink nor Apple shall have any liability to you for your use of such Services or Third Party Materials.
You further agree not to use the Application, the Services or Third Party Materials in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that neither EarthLink nor Apple is in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of or through the Application, the Services or Third Party Materials.
In addition, the Application, the Services and the Third Party Materials may not be available in all languages or in all countries. Neither EarthLink nor Apple makes any representation that such are appropriate or available for use in any particular location. To the extent you choose to access the Application, the Services or the Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. EarthLink and its licensors, reserve the right to limit access to or use of, change, suspend, remove or disable access to the Application, the Services or Third Party Materials at any time without notice. In no event will EarthLink be liable for any such removal or disabling.
5. POSTED CONTENT. You are solely responsible for any and all information (including any personal or private information), content or other materials in any media (“Content”) that you upload, send, forward, transfer, share, post or otherwise provide (collectively, “Post”) using the Application and for all consequences of Posting such Content. EarthLink is under no obligation to remove any such Content from the Application. When you Post Content, you give EarthLink the irrevocable, royalty free, perpetual, worldwide right and license to display, store, copy, perform, adapt, modify, combine, publish, distribute and use (including for promotional and marketing purposes) such Content without attribution in any medium and through any form of technology. EarthLink is not responsible for any Content that is Posted by others. EarthLink does not have any obligation or responsibility relating to any Content that is not Posted by EarthLink and does not have any duty to monitor the Application for inappropriate or unlawful Content. You agree that you will not Post Content that you do not have the legal right to Post or use the Application to engage in or encourage any activity that is illegal, defamatory, threatening, harassing, pornographic, obscene, or hateful.
6. NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY IT ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND EARTHLINK AND APPLE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APPLICATION AND ANY SUCH SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NEITHER EARTHLINK NOR APPLE WARRANTS AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EARTHLINK, APPLE OR THEIR AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. SHOULD THE APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
7. LIMITATION OF LIABILITY. EARTHLINK SHALL, IN ITS SOLE DISCRETION AND AS YOUR EXCLUSIVE REMEDY FOR ANY CLAIM ARISING UNDER THIS LICENSE OR FROM YOUR USE OF THE APPLICATION OR RELATED SERVICES, EITHER (A) REPLACE THE APPLICATION OR (B) REFUND THROUGH APPLE, AS ITS AGENT, ANY AMOUNT PAID BY YOU FOR THE APPLICATION. IF THE APPLICATION FAILS TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY APPLE AND APPLE’S SOLE OBLIGATION TO YOU WILL BE TO REFUND ANY AMOUNT PAID BY YOU FOR THE APPLICATION. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL EARTHLINK OR APPLE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF EARTHLINK OR APPLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall EarthLink’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
8. INDEMNIFICATION. You agree to defend, indemnify and hold EarthLink, Apple and their respective employees and agents harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages including, but not limited to, direct, indirect and consequential damages, attorney’s fees and expenses that such may sustain or incur by reason of your use or misuse of the Application or the use or misuse of the Application by anyone else through your account.
9. EXPORT CONTROL. You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction in which the Application was obtained. In particular, but without limitation, the Application may not be exported or re-exported (a) into any U.S. embargoed countries or any country designated by the U.S. as a “terrorist supporting country” or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, U.S. Department of Commerce Denied Person’s List or Entity List or any other U.S. government list of prohibited or restricted parties. By using the Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear missiles or chemical or biological weapons.
10. U.S. GOVERNMENT END USERS. The Application and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
11. GOVERNING LAW AND DISPUTES. This License shall be governed by and construed in accordance with Georgia law without regard to conflict of law provisions thereto and, as to matters affecting copyrights, trademarks and patents, in addition, by applicable United States federal law. THIS LICENSE REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. Please see Section 18, Dispute Resolution By Binding Arbitration (Including Important Information For California Residents), of the Internet Service Agreement found at https://www.earthlink.net/tcs/internet-service-agreement for details.
12. MISCELLANEOUS. The parties hereto specifically exclude the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act from this License and any transaction between them that may be implemented in connection with this License. The original of this License has been written in English. The parties hereto waive any statute, law or regulation that might provide an alternative law or forum or to have this License written in any language other than English.
EarthLink® and myEarthLink™ are trademarks of EarthLink, LLC and, along with other EarthLink trademarks, service marks and product names, may not be used without the prior permission of EarthLink, LLC. The Application is Copyright 2016 EarthLink, LLC. All rights reserved. The Application is protected by the copyright laws of the United States and all other applicable laws of the United States and other nations and by any international treaties, unless specifically excluded herein.
Version: June 2016