**Exhibit 10.5**

 

PORTIONS OF THIS EXHIBITHAVE BEEN OMITTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGECOMMISSION IN CONNECTION WITH A REQUEST FOR CONFIDENTIAL TREATMENT.

 

**HIGH-SPEED SERVICE AGREEMENT**

 

This **HIGH-SPEED SERVICE AGREEMENT**(the **“Agreement”**), executed on June 30,2006 (the **“Execution Date”**),****is made and entered into by and between **EARTHLINK, INC.**, a Delaware corporation,with offices at 1375 Peachtree Street, Atlanta, Georgia 30309 (**“EarthLink”**),****and **TIME WARNER CABLE INC.**,a Delaware corporation (**“TWC”**),with offices at 290 Harbor Drive, Stamford, Connecticut 06902 (each, a **“Party”**and collectively, the **“Parties”**).

 

**INTRODUCTION**

 

EarthLink and TWC each desires to enter into a relationship whereby TWCwill****sell to EarthLink anunbranded, “white label” version of TWC’s high speed data service (the **“TWC HSS”**) that EarthLink can brand, marketand resell as an EarthLink high-speed data service over TWC’s cable televisionsystems to consumers/residential customers pursuant to the terms and conditionscontained herein. Capitalized terms used but not otherwise defined in the mainbody of this Agreement or in the other Exhibits attached to this Agreementshall have the respective meanings set forth in Exhibit A attached hereto.Each of the Exhibits attached hereto are hereby incorporated into the main bodyof this Agreement by this reference.

 

**TERMS**

 

**1.****                         SCOPE;GENERAL RIGHTS AND OBLIGATIONS**

 

**1.1****      Operation and Maintenance.**

 

(a)**                     **TWC’s Obligations.

 

(i)**       **Subject to and in accordance with the termsand conditions of this Agreement, TWC shall sell to EarthLink an unbranded, “whitelabel” version of the TWC HSS that EarthLink shall brand, market and resell asan EarthLink high-speed service (the Earth Link-branded version of the TWC HSSis referred to herein as the **“EarthLinkHigh-Speed Service”**). Other than providing the TWC HSS in accordancewith this Agreement, TWC shall have no obligations with respect to the featuresor content of the EarthLink High-Speed Service or for the provision offeatures, applications, products and services included therein.

 

(ii)**      **TWC shall deliver the EarthLink High-Speed Service from the Internet toService Subscribers in the Operating Areas and carry EarthLink High-SpeedService IP data traffic between the Internet and the Service Subscriber’sDevice (as hereinafter defined) (including current****Service Subscribers as of the Effective Date under theHigh-Speed Service Agreement between the parties dated November 18, 2000)in accordance with the terms and conditions of this Agreement. As betweenEarthLink and TWC, TWC shall, at its own expense, provide, install, manage,maintain, repair, inspect, replace or remove, operate and control the SystemFacilities necessary for the delivery of the EarthLink High-Speed Service toService Subscribers and carriage of such IP data traffic. TWC is not requiredto permit****EarthLink to place(including, for avoidance of

 

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doubt, by way ofco-location) any equipment, technology, hardware or software at TWC’s premisesor within the System Facilities. As between EarthLink and TWC, TWC shall retainfull ownership and operating control of, and will be fully responsible foroperating and maintaining, the System Facilities. TWC shall have noresponsibility for provision of facilities to EarthLink other than as expresslyset forth herein.

 

(b)**      **EarthLink’s Obligations.

 

(i)**       **Subject to and in accordance with the termsand conditions of this Agreement, EarthLink shall, at its own expense and inits sole discretion, promote, advertise, offer, market, and sell the EarthLinkHigh-Speed Service in the Operating Areas.

 

(ii)**      **As between EarthLink and TWC, EarthLink shall, at its own expense,create or otherwise aggregate and obtain any content, applications, features,functionality, products and services that may be included in the EarthLinkHigh-Speed Service and are not included in the TWC HSS as provided by TWC underthis Agreement. Subject to Section 1.4(b), EarthLink shall provide ServiceSubscribers with access to the full offering of all features and functionalitymade available to residential subscribers through any other EarthLink-brandedhigh-speed Internet access service, including but, not limited to, all suchassociated links, content, services, features, functionality, issuance and useof EarthLink email addresses and features related thereto available toresidential customers in any other EarthLink branded high-speed Internet accessservice (other than any EarthLink-branded service offered as a municipal “wi-fi”service offering (i.e.,**alocal wireless service offered in a specific municipality)). EarthLink alsoshall, at its own expense, be responsible for providing, managing and operatingall narrowband dial-up access services that EarthLink may desire, in itsdiscretion, to offer in connection with the EarthLink High-Speed Service. If,at any time during the Term, EarthLink makes any material upgrades,modifications or enhancements to the EarthLink High-Speed Service, theEarthLink Software or the Documentation, EarthLink shall provide any softwareupgrades by electronic download or compact disc, and continue to reasonablysupport the immediately preceding version of the EarthLink High-Speed Servicefor a period of at least twelve (12) months from the general commercial releaseof the new version thereof.

 

(iii)**     **Subject to and in accordance with the terms and conditions of thisAgreement, EarthLink hereby grants to TWC during the Term the right and licenseto the extent necessary to promote, advertise, offer, market, distribute,transmit, deliver, reproduce, perform, display and otherwise use the EarthLinkHigh-Speed Service in order to provide the same to Service Subscribers in theOperating Areas. Such license shall include: (A) all rights necessary forTWC to exercise its rights and perform its obligations hereunder in connectionwith the EarthLink High-Speed Service, including with respect to interfaces,tools, content and software therein, and (B) the right to reproduce anddistribute, directly and through third parties, the EarthLink Software and Documentationin connection with the offering of the EarthLink High-Speed Service. Withoutlimitation of the foregoing, but subject to Section 2.1 (Retail Price),TWC shall have the right to

 

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market the PremiumEarthLink High-Speed Service to EarthLink customers at pricing to beestablished by TWC.

 

(iv)**     **Subject to and in accordance with the terms and conditions of thisAgreement, EarthLink shall not: (A) conduct or knowingly permit anyillegal activity using the EarthLink High-Speed Services or the SystemFacilities; (B) except as required by TWC or Bright House Networks LLCpursuant to Section 5.3 of this Agreement or otherwise solely inconnection with account administration communications (e.g., messages withoutpromotional content), engage in or knowingly permit use of the SystemFacilities to engage in mass distribution of unsolicited messages, use ofe-mail to initiate an attempt to gain unauthorized access to the computersystem of any person or entity, or unauthorized entry into computer or othersystems; (C) interfere with the operation of the System Facilities or athird party’s use of any services (not including actions taken in connectionwith the administration of any Service Subscriber accounts) provided throughthe System Facilities; or (D) subject TWC’s or its subcontractors’personnel to hazardous conditions. In any instance in which TWC believes ingood faith that any of the provisions in this Section 1.1(b)(iv) havebeen breached, subject to the following sentence and without limitation of anyother rights or remedies, TWC may immediately restrict, suspend or discontinueproviding the EarthLink High-Speed Service. In the event of EarthLink’s breachof this Section 1.1(b)(iv), and except in a circumstance where immediateaction is necessary to prevent or minimize resulting damage, actual orreasonably anticipated liability to TWC, or material interference with the TWCHSS or the System Facilities, prior to any such restriction, suspension or discontinuance,TWC shall provide prior notice to EarthLink, and, if curable, EarthLink willhave ten (10) business days to cure such breach. TWC will not be liable toEarthLink or any third party for such restriction, suspension ordiscontinuance. In addition, EarthLink’s breach of any of the provisions ofthis Section 1.1(b)(iv) (except for breaches of this Section 1.1(b)(iv) dueto the illegal activities of users of the Internet or EarthLink’s services,without specific misconduct by or on behalf of EarthLink) and failure to cureany such breach within the time period specified above, will constitute amaterial breach of this Agreement. For the avoidance of doubt, each Party shallbe responsible for processing and taking all actions required by law in responseto any notifications it receives pursuant to the Digital Millennium CopyrightAct, 17 U.S.C. § 512.

 

**1.2****                 NetworkArchitecture.**

 

(a)**      **TWCshall have the right to determine, in its sole discretion, all aspects ofnetwork architecture with respect to the System Facilities that deliver theEarthLink High-Speed Service. To the extent TWC elects to make available anymodifications or enhancements to network quality of service, or networkoperations or architecture for any Online Provider with or without an additionalcharge, then the Parties will reasonably discuss in good faith the possibilityof amending this Agreement to include such modifications or enhancements. TWCshall support Service Subscribers in a reasonable manner (including time torepair, installations and responding to customer service calls) determined inTWC’s reasonable business judgment. TWC’s customer support shall not bedetermined based upon whether a particular high-speed service customer is aService Subscriber or a customer of another Online Provider or Road Runner.

 

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(b)**      **TWC will provide all the necessary networkfunctions to support DOCSIS cable modem systems.

 

**1.3****                 EarthLinkHigh-Speed Service Speed Tiers.**

 

TWC currently provides three (3) service tiers for the TWC HSS:Service Level 1 (Standard); Service Level 2 (Premium); and Service Level 3(Lite). EarthLink shall offer the EarthLink High-Speed Service utilizing TWC’sService Level 1 and may, but shall not be required to, offer the EarthLinkHigh-Speed Service utilizing Service Level 2 and/or Service Level 3. Each tieris keyed to a maximum throughput between each Device and the Internet, and willprovide a (1) maximum throughput capacity for a Service Subscriber (*e.g.*, the maximum instantaneous IP datathroughput available to a Service Subscriber), and (2) maximum byteconsumption by such Service Subscriber per month.

 

(a)**      ****“Service Level 1”**currently provides (i) maximumthroughput capacity for a Service Subscriber of 5 Mbps downstream (i.e.,Internet to Device) and 384Kbps or 512Kbps upstream (i.e., Device to Internet),and (ii) maximum byte consumption by such Service Subscriber per month of nomore than ____ Gb downstream and ____ Gb upstream.

 

(b)**      ****“Service Level 2”**currently provides (i) maximumthroughput capacity for a Service Subscriber of 8 Mbps downstream and 1 Mbpsupstream, and (ii) maximum byte consumption by such Service Subscriber permonth of no more than _____ Gb downstream and _____ Gb upstream.

 

(c)**      ****“Service Level 3”**currently provides (i) maximumthroughput capacity for a Service Subscriber of 768Kbps downstream and 128Kbpsupstream, and (ii) maximum byte consumption by such Service Subscriber permonth of no more  than _____ Gbdownstream and _____ Gb upstream.

 

(d)**      **TWC shall have the right, at any time and inits sole discretion, with respect to any or all TWC Cable Systems, to:

 

(i)**       **establish additional tiers other than ServiceLevel 1, Service Level 2 or Service Level 3 or upgrades, premiums, or upsellsto existing tiers utilizing any features or conditions, including but notlimited to throughput capacity or consumption, it deems appropriate (suchService Levels and any additional tiers upgrades, premiums, or upsellsestablished by TWC collectively referred to as the **“Service Levels”**);

 

(ii)**      **modify the features and conditions, including but not limited tothroughput capacity or consumption, of any then-existing Service Level(s);

 

(iii)**     **cancel any Service Level(s); and

 

(iv)**     **establish, in a manner consistent with applicable law, requirementsregarding the terms on which any Online Provider, including EarthLink, mayoffer any Service Level(s) (e.g., limiting access to a given Service Levelto promotional uses for a limited duration).

 

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TWC shall takecommercially reasonable steps to provide EarthLink with at least 60 days’written notice prior to instituting or terminating any Service Level(s) inany TWC Division(s); provided that (x) EarthLink acknowledges that, fromtime to time, competitive pressures may require that TWC promptly institute orterminate Service Level(s) and that, under such circumstances, TWC willsatisfy its notice obligations by providing EarthLink with the best noticepracticable under the circumstances; and (y) TWC acknowledges that anychanges negatively impacting customers (e.g., decreased speed or lowerconsumption caps) may require EarthLink to provide its customers with at least30 days’ written notice. In the event TWC terminates any Service Level, TWC andEarthLink agree to work in good faith to create and implement a transition planfor those Service Subscribers impacted by such termination.

 

(e)**      **TWC shall make available to EarthLink allService Level(s) that TWC makes available for its Road Runner residentialservice. TWC and EarthLink shall negotiate in good faith the economic terms forany Service Level(s) established by TWC after the Effective Date,including, without limitation, monthly fees and surcharges.

 

(f)**       **TWC reserves the right, in its solediscretion to meter or otherwise technologically monitor Service Subscriberconsumption levels and usage volume and patterns and to utilize any means atits disposal to ensure that Service Subscribers do not violate the terms oftheir Service Level, TWC’s acceptable use policy (AUP) or subscriber agreement,including any limits on bandwidth consumption or usage. Such means may includethe imposition of rate shaping or other technological means of ensuringcompliance with Service Level terms, additional fees for excess bandwidth usageto Service Subscribers or requiring subscription to a higher Service Level as acondition of continuing to provide service to a Service Subscriber who violatesTWC’s terms. TWC shall exercise its reasonable business judgment in enforcingits rights using these means, and will not make decisions based upon whether aparticular high speed service customer is a Service Subscriber or a customer ofanother Online Provider or Road Runner.

 

**1.4****                 General.**

 

(a)**      **The EarthLink High-Speed Service will beoptimized for the desktop or laptop personal computer (as such concepts aregenerally understood as of the Effective Date) (a **“Personal Computer”).**EarthLink and TWC understand that theEarthLink High-Speed Service may operate (i) with another device connectedthrough a cable modem or (ii) through a device including an integratedcable modem, in either case if so connected by a Service Subscriber (each suchPersonal Computer or other device, a **“Device”**).Without limiting the foregoing, the technical specifications of the version ofany content, applications, features, functionality, products or servicesincluded in the EarthLink High-Speed Service will be specifically formatted anddesigned for an Internet Protocol (**“IP”**)Device conforming to then-current DOCSIS specifications. TWC’s obligationsunder this Agreement shall not include installation to any Device other than aPersonal Computer and a cable modem connected directly to the PersonalComputer. Notwithstanding the foregoing, EarthLink shall not be in breach ofthis Section 1.4 if the EarthLink High-Speed Service is not optimized forPersonal Computers as a result of the actions or inactions of TWC in violationof TWC’s obligations under this Agreement.

 

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(b)**      **Subject to any other express limitationsherein, EarthLink may offer any IP data-based services on or through theEarthLink High-Speed Service as EarthLink determines from time to time in itssole discretion, including those that utilize a television Device; and mayprovide any equipment used to deliver such services, and any IP value addedservices (including streaming audio and video applications and videoprogramming that is commonly available for purchase or free viewing on the Internetand any content, applications, features, products and services offered throughthe EarthLink narrowband services to Personal Computers), and may enter intorelationships to bundle and package specialty viewing content over high-speedInternet service offered by EarthLink (i.e., such as EarthLink’s currentpartnership with Synacor for sports viewing or a future partnership with aprovider such as Akimbo). Any permitted services will be compatible with thenetwork architecture determined pursuant to Section 1.2. Any such content,applications, features, functionality, products and services included in theEarthLink High-Speed Service when sold by EarthLink will also be included insuch EarthLink High-Speed Service when sold by TWC.

 

(i)**       **Notwithstanding the foregoing, nothing hereinshall be construed to allow EarthLink to bundle as all or any part of or withany EarthLink High-Speed Service: (i) any audiovisual programming servicessimilar to television programming “channels” or television services (including,without limitation, any “IPTV” service); or (ii) any services similar tothose services commonly referred to as “video on demand” or “VOD,” whether freeor on a subscription basis, including any mode of exhibition of single ormulti-channel, full motion video with accompanying principal audio programming(collectively, **“TV Services”**). Forexample, EarthLink may not bundle as all or part of or with any EarthLinkHigh-Speed Service an IPTV service offered by a third-party provider. TheParties further agree that EarthLink will in no event target market to ServiceSubscribers or existing subscribers of TWC’s Road Runner service any TVServices of any provider; provided that TWC shall provide to a third-partyservice provider agreed by the Parties (each Party’s agreement not to beunreasonably withheld) a list of such Road Runner subscribers and providetimely updates as requested.

 

(c)**      **For purposes of clarification, TWC shall haveno quality of service obligations with respect to video, audio or other streamedmedia of any kind provided by EarthLink in connection with the EarthLinkHigh-Speed Service.

 

(d)**      **Unless the Parties shall otherwise agree inwriting, the EarthLink High-Speed Service shall be designed, intended andmarketed solely as a consumer service offering to residential locations, whichmay include marketing the consumer use of the EarthLink High-Speed Service fortelecommuting and “work at home” purposes.

 

**1.5****                 IP Addresses.**

 

Consistent with DOCSIS 1.0, TWC will supply the public IP address oraddresses as reasonably necessary for the management of the cable modem devicein the Service Subscriber’s home. To the extent any TWC Division providesmultiple public IP addresses for residential high-speed service customers, TWCshall consider supplying multiple public IP addresses for residential ServiceSubscribers and will make such determination in good faith withoutconsideration of whether a particular high-speed service customer is a Service

 

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Subscriber or a customerof another Online Provider or Road Runner. As reasonably required by TWC,EarthLink will supply routable IP address ranges for connecting to theEarthLink High-Speed Service.

 

**1.6****                 IP Telephony.**

 

EarthLink will notprovide any IP telephony that could reasonably cause or causes TWC to becomesubject to regulation as a provider of a telecommunications service by anystate public utilities commission or the FCC or other governmental or judicialauthority or agency. TWC shall not be required to provide any quality ofservice commitments for any IP telephony. If TWC incurs a tax or fee as aresult of any provision of IP telephony by EarthLink on the EarthLinkHigh-Speed Service, EarthLink, at its sole discretion, will either (a) ceaseoffering IP telephony on the EarthLink High-Speed Service to the extentnecessary to avoid such tax or fee, or (b) pay its share (pro-rata withother Online Providers offering IP telephony services) of such tax or feeassessed on TWC or its facilities as a result of such IP telephony services.

 

**2.****                         PRICING;ECONOMICS AND INVOICING**

 

**2.1****      Retail Price.**

 

Each Party will set its own retail price(s) for the BasicEarthLink High-Speed Service (including for Service Level 1, Service Level 2,Service Level 3 and any other Service Levels established by TWC) (the **“Retail Price(s)”**) as sold by it, includingthe right to establish different prices to Service Subscribers in different TWCCable Systems. EarthLink shall have the right to set the retail price for anyPremium EarthLink High-Speed Service in connection with its sales thereof andin connection with TWC’s sales thereof, which shall be as agent for EarthLink.For purposes of clarity, the Retail Price shall not be deemed to include taxes,franchise fees or installation or set-up (or similar) fees, regardless ofwhether the same are charged to Service Subscribers.

 

**2.2****                 Monthly Fees.**

 

(a)**      **Service Level 1.

 

For Service Level 1 Service Subscriptions (other than for AdditionalEarthLink Revenues):

 

(i)**       **Where the Retail Price is set by EarthLink,TWC shall be entitled to ______________ dollars ($_____), plus ____________percent of the Excess Amount, if any, per Service Level 1 Service Subscription(the **“SL1 TWC Monthly Fee”**). Suchamount will be paid to TWC by EarthLink for Service Subscribers billed byEarthLink (or Service Subscribers billed by TWC to the extent the Retail Priceset by EarthLink is less than the SL1 TWC Monthly Fee) or retained by TWC forService Subscribers billed by TWC, if any.

 

(ii)**      **Where the Retail Price is set by TWC, EarthLink shall be entitled to ___________dollars ($_____), plus _____________ percent of the Excess Amount, if any, perService Level 1 Service Subscription (the **“SL1EarthLink Monthly Fee”**). Such

 

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amount will bepaid to EarthLink by TWC as such Service Subscribers will be billed by TWC.

 

The **“Excess Amount”**shallbe the amount by which the Retail Price for the EarthLink High-Speed Serviceexceeds _____________ dollars ($___).

 

In the event either Party offers a promotion in which the Retail Priceis less than $___ for a defined promotional period and the full Retail Price ischarged after the promotional period, the Retail Price for each period shall bethe net amount billed the customer. As a result, there will be no ExcessAmounts due by either Party during the promotional period if the net amountbilled the customer is less than $___.

 

(b)**      **Service Level 2.

 

For Service Level 2 Service Subscriptions (other than for AdditionalEarthLink Revenues):

 

(i)**       **Where the Retail Price is set by EarthLink,TWC shall be entitled to __________ dollars ($_____), plus ______________percent of the SL2 Excess Amount (as defined below), if any, per Service Level2 Service Subscription (the **“SL2 TWC MonthlyFee”**). Such amount will be paid to TWC by EarthLink for ServiceSubscribers billed by EarthLink (or Service Subscribers billed by TWC to theextent the Retail Price set by EarthLink is less than the SL2 TWC Monthly Fee)or retained by TWC for Service Subscribers billed by TWC, if any.

 

(ii)       Wherethe Retail Price is set by TWC, EarthLink shall be entitled to ___________dollars ($_____), plus ______________ percent of the SL2 Excess Amount, if any,per Service Level 2 Service Subscription (the **“SL2EarthLink Monthly Fee”**). Such amount will be paid to EarthLink byTWC as such Service Subscribers will be billed by TWC.

 

The **“SL2 Excess****Amount”**shall be the amount by which the Retail Price for theEarthLink High-Speed Service exceeds [_______________ dollars and _____________cents] ($_______).

 

(c)       Service Level 3.

 

For Service Level 3 Service Subscriptions (other than for AdditionalEarthLink Revenues):

 

(i)**       **Where the Retail Price is set by EarthLink,TWC shall be entitled to the appropriate Service Level 3 Payment (as determinedin accordance with Section 2.2(c)(i)(A) — (C) below), plus _____________percent of the SL3 Excess Amount (as defined below), if any, per Service Level3 Service Subscription (the **“SL3 TWC MonthlyFee”**). Such amount will be paid to TWC by EarthLink for ServiceSubscribers billed by EarthLink (or Service Subscribers billed by TWC to theextent the Retail Price set by EarthLink is less than the SL3 TWC Monthly Fee)or retained by TWC for Service Subscribers billed by TWC, if any.

 

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(A)**     **TWC wishes to create an incentive for EarthLink to encourage existingEarthLink narrowband subscribers to become Service Subscribers. Accordingly,for so long as the Incentive Benchmark (as defined below), as measured on thethen-most recent Incentive Benchmark Date (as defined below), is equal to orgreater than the Incentive Benchmark as measured on the Effective Date, the **“Service Level 3 Payment”**for incrementalService Level 3 Subscribers will be $______. If, as of any Incentive BenchmarkDate after the Effective Date, the Incentive Benchmark is not higher than theIncentive Benchmark as of the Effective Date, then thereafter (until the nextIncentive Benchmark Date if any on which the Incentive Benchmark is equal to orgreater than the Incentive Benchmark as measured on the Effective Date) the **“Service Level 3 Payment”**for incrementalService Level 3 Subscribers will be $______. Actual payments will be based ongross subscriber numbers using a LIFO (i.e., “last in first out”) method, asdescribed in Section 2.2(c)(i)(C) below, rather than based on thedate on which a particular subscriber became an EarthLink Subscriber.

 

(B)**      **The **“Incentive Benchmark”**shallbe calculated on the Effective Date and on each anniversary of the EffectiveDate (each, an **“Incentive Benchmark Date”**)by:

 

(1)**       **calculating the average monthly level ofthen-current Service Level 1 Service Subscribers originally sold by EarthLinkand the average monthly level of then-current Service Level 2 ServiceSubscribers originally sold by EarthLink for each of the 12 calendar monthsimmediately prior to the month in which the relevant Incentive Benchmark Dateoccurs (the average level for each such month to be determined by adding thenumber of respective then-current Service Level 1 Service Subscribers sold byEarthLink and then-current Service Level 2 Service Subscribers sold byEarthLink on the first day of each month to the number of such ServiceSubscribers on the last day of such month and dividing by two (2)) and

 

(2)**       **adding the 12 monthly averages and dividingby 12.

 

Notwithstanding anythingto the contrary contained herein, each Incentive Benchmark, and EarthLink’scompliance with such benchmark, shall be calculated separately for all TWC CableSystems other than the Bright House Cable Systems, as one group, and all BrightHouse Cable Systems as another. As a result, depending on its success incomplying with the Incentive Benchmarks, EarthLink may be eligible during agiven period for the incentive program described herein in either group ofsystems, both groups of systems or neither groups of systems.

 

(C)**      **If a Service Level 3 Service Subscription is terminated during theTerm, the terminated subscription shall be treated for purposes

 

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of calculation of the SL3TWC Monthly Fee as if it was the most recently sold Service Level 3 ServiceSubscription, as long as there are incremental customers attributable to thatparticular period in the rate calculation. If there are no customers attributableto this period (i.e., if the number of EarthLink-sold Service Level 3 ServiceSubscribers on the date of such termination is lower than the number ofEarthLink-sold Service Level 3 Service Subscribers that existed as of the mostrecent Incentive Benchmark Date), the reduction would be of the amount payableby EarthLink in the preceding period.

 

(D)**      **The provisions of Section 2.2(c)(i)(A)-(C) herein areillustrated in the examples set forth in Exhibit F hereto.

 

(ii)**      **Where the Retail Price is set by TWC,EarthLink shall be entitled to __________ dollars and __________ cents ($_____),plus ____________ percent of the Excess Amount, if any, per Service Level 3Subscription (the **“SL3 EarthLink Monthly Fee”**).Such amount will be paid to EarthLink by TWC as such Service Subscribers willbe billed by TWC.

 

The **“SL3 Excess Amount”**shall be the amount bywhich the Retail Price for the EarthLink High-Speed Service exceeds ___________________dollars and ___________ cents ($_____).

 

(d)**                    **Monthly Transit Surcharge.

 

EarthLink shall pay to TWC a monthly transit surcharge **(“Transit Surcharge”)**for each ServiceSubscriber as set forth below:

 

(i)**       **For the period commencing upon the EffectiveDate and ending on the first anniversary thereof (i.e., the first AnnualBenchmark Date after the Effective Date), the Transit Surcharge shall be _______dollar and ________ cents ($_____) per the average number of ServiceSubscribers during the month (the **“BaseTransit Charge”).**

 

(ii)**      **TWC shall calculate the average transit layerutilization in kilobits per second **(“kbps”)**perService Subscriber for the EarthLink High-Speed Service for the thirty (30) dayperiod preceding each Annual Benchmark Date after the Effective Date (thecalculation of average utilization for such an Annual Benchmark Date referredto herein as an **“Annual Benchmark DateAverage”**). In the event any Annual Benchmark Date Average is equalto or greater than 22.5 kbps, subject to the provisions of Section 2.2(d)(v) below,the monthly Transit Surcharge for the subsequent twelve (12) month periodduring the Term shall be the Base Transit Charge as increased by $.055 perService Subscriber for each kbps that the Benchmark Date Average exceeds 21.5kbps.

 

(iii)**     **The monthly Transit Surcharge shall be paidto TWC by EarthLink for the average number of Service Subscribers billed byEarthLink during the month, or retained by TWC for the average number ofService Subscribers billed by TWC during the month, if any.

 

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(iv)**     **For purposes of this Section 2.2(d), the average number of ServiceSubscribers in a month shall be determined by adding the number of ServiceSubscribers on the first day of the month to the number of Service Subscriberson the last day of the month and dividing by two (2).

 

(v)**      **Notwithstanding the foregoing, to the extent an Annual Benchmark DateAverage exceeds 54 kbps, EarthLink shall have the right to notify TWC inwriting within fifteen (15) days after the Annual Benchmark Date to requestthat TWC waive any incremental monthly Transit Surcharge due hereunder for thatportion of the Benchmark Date Average in excess of 54 kbps. To the extent TWCdoes not notify EarthLink in writing of its agreement to such a waiver withinthirty (30) days of EarthLink’s request, EarthLink shall have fifteen (15) daysthereafter to terminate this Agreement pursuant to Section 8.5 herein uponwritten notice to TWC.

 

(e)**                     **Calculation of Fees: Prorated Fees.

 

(i)**       **Determination of amounts to be paid shall beon a per Service Subscriber, per Service Level basis.

 

(ii)**      **During the month of commencement or termination of a ServiceSubscription, if the Service Subscriber pays a pro-rated fee (or receives apro-rated credit or refund) for such Service Subscription, the monthly paymentswill be pro-rated on the same basis.

 

(f)**                       **Subscription Termination Notice.

 

Each of the Parties will promptly notify theother in the event of a termination of a Service Subscriber’s ServiceSubscription to the EarthLink High-Speed Service (which notification shall inno event be later than 24 hours after such termination), regardless of whethersuch termination is generated by the Service Subscriber, by EarthLink or byTWC. The Party that bills a Service Subscriber for the EarthLink High-SpeedService shall have the sole right to terminate, in accordance with its ownapplicable policies and procedures, the EarthLink High-Speed Service ServiceSubscription of a Service Subscriber for nonpayment by such Service Subscriberof subscription fees for such EarthLink High-Speed Service. Consistent withpast practices, the parties shall use commercially reasonable efforts todevelop and implement a “saves” program to retain Service Subscribers whoindicate they wish to terminate the EarthLink High-Speed Service. In the caseof TWC, any such program must be approved by a senior vice president (or above)based in TWC’s corporate headquarters in Stamford, Connecticut. Any suchprogram shall contemplate that, if TWC “saves” a Service Subscriber using anEarthLink-approved saves offer, such Service Subscriber shall, throughout therelevant save promotional period, be treated for billing and payment purposesas if EarthLink set the Retail Price for such Service Subscriber. For avoidanceof doubt, nothing contained herein shall require TWC to attempt to “save” anyService Subscriber or transfer calls from terminating Service Subscribers toEarthLink; provided that TWC shall in good faith attempt through its normalcustomer service operations to “save” Service Subscribers to the EarthLinkHigh-Speed Service who indicate they wish to terminate through appropriateincentives agreed upon between EarthLink and TWC.

 

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**2.3****                 Sharing ofAdditional Revenues.**

 

In addition to all other amounts payable under this Agreement,EarthLink shall pay TWC, monthly, an amount equal to ________ percent (___%) ofAdditional EarthLink Revenues in excess of _______ dollars ($__) per ServiceSubscriber per month (with Service Subscribers determined by averaging ServiceSubscribers at the beginning and the end of the relevant month) (the **“Revenue Share”)**.

 

**2.4****                 Outage Credit;Service Subscriber Default.**

 

(a)**                     **To the extent a billing Party issues a creditor refund to Service Subscriber(s) in respect of any period(s) of anyunscheduled outage of the EarthLink High-Speed Service, the adjustment (if any)to the amount payable by such Party to the other shall be as follows:

 

(i)**       **To the extent (A) such outage is solelythe result of the billing Party’s failure to perform its responsibilitieshereunder, or (B) the aggregate period of any such outages occurring inany calendar month, is less than four (4) hours, the amount payable to theother Party shall be determined as though no such credits shall have beenissued.

 

(ii)**      **To the extent such outage is solely the result of the other Party’sfailure to perform its responsibilities hereunder, subject to Section 2.4(a)(v),the fees payable to the other Party shall be reduced by the lower of (x) theamount of such credit actually issued or (y) the amount required by law,regulation, any LFA franchise agreement, any subscriber agreement or otheragreement of the Parties.

 

(iii)**     **To the extent that the corresponding service outage resulted fromneither or both Parties’ failure to perform its respective responsibilitieshereunder, subject to Section 2.4(a)(v), the billing Party may reduce thefees payable to the other Party by fifty percent (50%) of the lower of (x) theamount of such credit actually issued or (y) the amount required by law,regulation, any LFA franchise agreement, any subscriber agreement or otheragreement of the Parties.

 

(iv)**     **If the amount of the reduction in fees under Section 2.4(a)(ii) or2.4(a)(iii) exceeds the amount of the fees payable in any month, the billingParty may, at its option, apply such reduction against future fees or invoicethe other Party, whereupon such other Party will promptly pay the invoicedamount.

 

(v)**      **Outage credits shall not apply in any month unless the aggregate periodof service outages in the System Facilities occurring in any calendar monthexceeds four (4) hours.

 

Neither Party shall be precluded from offering or providing any serviceoutage credits to Service Subscribers to the extent that such Party remainsfully responsible, both administratively and financially, for such credits.

 

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If a Service Subscriber fails to pay any invoiced amount, the billingParty shall be solely responsible for collection thereof, and shall be obligatedto pay the other Party the fees with respect to such Service Subscriber withoutregard to such default; *provided, however*,**ifsuch other Party was the selling Party, and such sale was in violation ofService Subscriber qualification procedures or criteria of the billing Party(as each Party shall provide to the other from time to time), the other Partyshall bear sole responsibility for the default, and the billing Party maydeduct the applicable amount thereof from amounts otherwise payable to such otherParty.

 

**2.5****                 ****Payment Procedures.**

 

Subject to any additional procedures mutually agreed by the Parties,the Parties shall pay and report to one another as follows:

 

(a)**                     **TWC shall pay EarthLink no later than 30 daysfollowing the end of any month, an amount equal to the monthly fees to whichEarthLink is entitled pursuant to Section 2.2 (adjusted for any applicablecredits), for each Service Subscriber billed by TWC during such precedingmonth.

 

(b)**                    **EarthLink shall pay TWC no later than 30 daysfollowing the end of any month an amount equal to: (i) the monthly fees towhich TWC is entitled pursuant to Section 2.2 (adjusted for any applicablecredits), for each Service Subscriber billed by EarthLink during such precedingmonth; plus (ii) the Revenue Share payable to TWC in respect of suchpreceding month pursuant to Section 2.3; plus (iii) other amountspayable to TWC under this Agreement in respect of expense reimbursement,franchise fees or otherwise.

 

**2.6****                 Taxes; Fees.**

 

Subject to Section 2.7, the Party actually billing the ServiceSubscriber in accordance with Section 7.3 shall be responsible for billingand collecting from the Service Subscriber and remitting to the appropriatetaxing authorities all applicable sales, use, excise, import or export, value addedor similar taxes and fees arising by law from the purchase by such ServiceSubscriber of the EarthLink High-Speed Service.

 

**2.7****                  Franchise Fees and Other Obligationsto Local Franchising Authorities**

 

(a)**                     **EarthLink will agree to abide by the terms ofany LFA obligation regarding the provision of the EarthLink High-Speed Servicethat are, in TWC’s reasonable judgment, applicable to EarthLink, including,without limitation (i) charging Service Subscribers for, and remitting toTWC for payment to LFAs, the applicable franchise fee on the service when soldby EarthLink; and (ii) complying with any customer service, disclosure orquality of service requirements; provided, however, if in any TWC Division: (x) thefranchise fee exceeds five percent (5%) of subscriber fees or (y) any LFAimposes obligations (other than disclosure requirements) that exceed thosetypical in other jurisdictions and that either have a material adverse impacton EarthLink’s financial returns from such TWC Division, taken as a whole, orimpose materially adverse restrictions or obligations on EarthLink’s business,or require EarthLink to maintain acceptable use or privacy policies that arematerially more onerous than EarthLink’s generally applicable policies, thenEarthLink may, within sixty (60) days of

 

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EarthLink’s receipt ofnotice regarding such requirement, elect by written notice to TWC to terminatethis Agreement with respect to such TWC Division.

 

(b)**                    **In the event that EarthLink elects to providenotice of termination pursuant to Section 2.7(a), then during theTransition Period for such TWC Division, EarthLink shall pay to TWC and/orcharge applicable Service Subscribers for, such fees, and comply with such LFAobligations, each as they arise.

 

(c)**                     **EarthLink will remit all franchise fees forwhich EarthLink is responsible in accordance with Section 2.7(a) toTWC for payment to the applicable LFAs within thirty (30) days after the end ofthe calendar month for which they are applicable.

 

(d)**                    **Without limiting the generality of theforegoing provisions of this Section 2.7, (i) TWC will provideEarthLink with reasonable advance notice of all obligations with whichEarthLink is required to comply, and of changes in such obligations from timeto time; and (ii) TWC and EarthLink will cooperate with each other onprocedures regarding matters of compliance with LFA-imposed fees or otherobligations.

 

**3.****                         ADDITIONOR REMOVAL OF TWC CABLE SYSTEMS**

 

(a)**                     Transfer ofTWC Systems.**

 

(i)**       **Inconnection with a transfer, whether by sale, exchange or otherwise, of a TWCCable System, TWC shall have the right: (A) subject to Section 13.8of Exhibit C, to assign its rights and delegate its obligations hereunderwith respect to such TWC Cable System to the transferee thereof, and thereuponremove such TWC Cable System from the scope of this Agreement; or (B) ifthe transferee of such TWC Cable System does not expressly assume all of TWC’sobligations hereunder in writing with respect to such TWC Cable System, toremove such TWC Cable System from the scope of this Agreement; provided that,in negotiating such transfer, TWC will use commercially reasonable efforts tocause the transferee of such TWC Cable System to agree to enter into astandalone agreement with EarthLink substantially similar to this Agreementwith respect to such TWC Cable System, and, if the foregoing is not agreed, topermit any existing Service Subscribers utilizing such TWC Cable System, ifany, to continue to receive the EarthLink High-Speed Service for as long as isreasonably necessary to permit transition of such Service Subscribers off theEarthLink High-Speed Service. In the event that the transferee of such TWCCable System does not accept TWC’s rights and obligations under this Agreement,nothing herein shall limit EarthLink’s ability to solicit Service Subscribersof such TWC Cable System for transition to other EarthLink services after thetransfer of such TWC Cable System to the transferee. TWC will provide EarthLinkwith as much prior notice as possible of any transfer of a TWC Cable Systemfollowing execution and delivery of a binding agreement therefor (but, unlesslegally prohibited, in no event less than four (4) months prior notice toEarthLink).

 

(ii)**      **With respect to any TWC Cable Systems divested in association with thePending Transactions (as defined below), EarthLink acknowledges that TWC

 

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has complied with itsobligations under Section 3.4(a)(i) of the High-Speed ServiceAgreement between the parties effective as of November 18, 2000 (the **“Current Carriage Agreement”**).****EarthLink hereby waives any and allpayments or compensation provided for pursuant to Section 3.4(a)(ii) ofthe Current Carriage Agreement.

 

(iii)**     **With respect to any TWC Cable Systems divested in association with theTKCCP Divestiture (as defined below), EarthLink acknowledges that TWC hascomplied with its obligations under Section 3.4(a)(i) of the CurrentCarriage Agreement and EarthLink hereby waives any and all payments orcompensation provided for pursuant to Section 3.4(a)(ii) of theCurrent Carriage Agreement. As used herein, the term “TKCCP Divestiture” shallmean TWC’s divestiture of certain interests in an entity known as “Texas andKansas City Cable Partners, L.P.”

 

(iv)**     **Notwithstanding anything to the contrary contained herein, if all orsubstantially all of the TWC Divisions are sold, exchanged or otherwisetransferred to an entity, then TWC shall cause this Agreement to be assumed bythe transferee.

 

(b)                    **Acquisition of TWC System.**

 

(i)**       **In connection with an acquisition, whether bypurchase, exchange or otherwise, by TWC, of a new cable system that followingsuch acquisition would constitute a TWC Cable System under this Agreement andsubject to any pre-existing obligations or contractual restrictions associatedwith the cable system being acquired and subject also to the provisions of Section 3(c) herein,the Parties (x) shall add such new TWC Cable System to the scope of thisAgreement if such TWC Cable System will operate in an operating areaImmediately Adjacent to an Operating Area of a then-existing TWC Cable Systemcarrying the EarthLink High-Speed Service; (y) shall add such new TWCCable System to the scope of this Agreement if such TWC Cable System has morethan 300,000 residential homes passed (as that term is commonly used in thetelevision cable industry) in its Operating Area, determined in accordance withTWC’s standard internal policies and (z) may mutually agree, but shall notbe required, to add any other such TWC Cable System to the scope of thisAgreement.

 

(ii)**      **TWC will notify EarthLink promptly following execution and delivery ofa binding agreement for the acquisition of a TWC Cable System that is to beadded to the scope of this Agreement.

 

(iii)**     **For each TWC Cable System to be added to the scope of this Agreement,TWC shall make the TWC HSS available to EarthLink for branding and resale aspromptly as practicable following the date on which such TWC Cable System’sSystem Facilities, and administrative and billing systems, are, in TWC’s solediscretion, capable of handling without extraordinary effort the provision ofmultiple Online Providers’ services. If a TWC Cable System is added to thescope of this Agreement, EarthLink will be subject to its obligations under Section 1.3with regard to the TWC Cable System.

 

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(c)**      **Thecable systems to be acquired by TWC upon the consummation of the transaction(s) pendingas of the Execution Date between and among TWC, Comcast Corporation andAdelphia Communications Corporation (the **“PendingTransactions”)**shall constitute TWC Cable Systems under thisAgreement including (i) such cable systems that are located within the LosAngeles, California; Cleveland, Ohio; Buffalo, New York; or Dallas, Texas DMAs(provided that EarthLink shall offer the EarthLink High-Speed Service on allTWC Cable Systems in each such DMA); and (ii) such cable systems on whichEarthLink high-speed service is being provided immediately prior to theconsummation of the Pending Transactions. In each TWC Cable System to be addedto the scope of this Agreement pursuant to the foregoing sentence, TWC shallmake the TWC HSS available to EarthLink for branding and resale as promptly aspracticable, but in any event within ninety (90) days, following the date onwhich such TWC Cable System’s System Facilities, and administrative and billingsystems, are, in TWC’s sole discretion, capable of handling withoutextraordinary effort the provision of multiple Online Providers’ services.

 

(d)**      **TWCmay terminate its obligations hereunder with respect to any Operating Area, bynotice in writing to EarthLink, if TWC ceases to provide its cable televisionservices in such Operating Area.

 

**4.****                         PROMOTIONFOR TWC SITE**

 

**4.1****                 Link To TWC Site.**

 

EarthLink will create, host, operate and maintain a Service Subscribercustomizable **“Personal Start Page”**withTWC co-branding (as mutually agreed upon by the Parties) and a prominent,above-the-fold link to a local TWC Site for each TWC Division offering theEarthLink High-Speed Service (or, subject to mutual agreement, anotherreference to a TWC Site in a mutually agreeable above-the-fold location).EarthLink shall update TWC branding and linking as reasonably requested by TWC.The Personal Start Page will be the default home page as part of theEarthLink Total Access Software through which a Service Subscriber accesses theEarthLink High-Speed Service.

 

TWC shall not permit nor require the inclusion of any advertising foror link or reference to the Online Provider services of another Online Provideror Road Runner on the Personal Start Page or on the TWC Division landing page accessibleby a click-through from the Personal Start Page without EarthLink’s prior writtenconsent, which may be withheld at EarthLink’s sole and absolute discretion.

 

**5.****                         MARKETINGAND BUNDLING.**

 

**5.1****                 Marketing of theEarthLink High-Speed Service**.

 

(a)**      **EarthLinkshall advertise, promote and market the EarthLink High-Speed Service in all OperatingAreas in which EarthLink High-Speed Service is made available via TWC CableSystems.

 

(b)**      **TWCmay, but shall not be required to, advertise, promote and market the EarthLinkHigh-Speed Service, if any, offered by TWC.

 

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(c)**                     **TWC may, but shall not be required to,advertise, promote and market the Premium EarthLink High-Speed Service, if any,offered by TWC.

 

(d)**                    **EarthLink will have the opportunity to seekTWC’s (and the TWC Divisions’) assistance in promoting and marketing theEarthLink High-Speed Service. TWC shall use reasonable efforts to providecontact information for appropriate TWC Division personnel, and shall send acommunication to such personnel to introduce key EarthLink personnel. TWC andthe TWC Divisions will reasonably consider EarthLink’s requests for promotionand marketing assistance in its reasonable business judgment.

 

(e)**                     **Subject to complying with the provisions ofthis Agreement (including Sections 5.2 and Exhibit C) and any otherprocedures mutually agreed in writing by the Parties, each Party may performsuch advertising, promotion and marketing via whatever means, methods or media,it deems suitable; provided that neither Party shall use the Marks of the otherParty without the express prior written consent of such other Party, suchapproval not to be unreasonably withheld. Each Party shall bear all costsassociated with its respective marketing of the EarthLink High-Speed Service.

 

**5.2****                 Bundling.**

 

(a)**                     **Subject to Section 5.3, TWC may bundleany Premium EarthLink High-Speed Service with the Basic EarthLink High-SpeedService (it being understood that TWC would be acting as EarthLink’s agent forany such offering of any Premium EarthLink High-Speed Service), provided thatwith respect to any individual Premium EarthLink High-Speed Service, bundlingand/or order entry is practical and technically feasible; that EarthLink’ssystems support such bundling and order entry and, if billing rights arerequested, third-party billing of the bundled offerings; and that EarthLink’sinability to support bundling for TWC shall not restrict EarthLink fromoffering and selling the bundle itself including under the Agency Agreementbetween TWC and EarthLink dated as of the Execution Date.

 

(b)**                    **TWC may, on a TWC Division level in its solediscretion, bundle the EarthLink High-Speed Service with other TWC products orservices, including but not limited any or all of TWC’s voice, data and videoservices **(“Bundled Packages”)**.****If EarthLink and a TWC Division agree thatsuch TWC Division will include any Service Level of the EarthLink High-SpeedService in a Bundled Package (an **“EarthLinkBundled Package”),**EarthLink and such TWC Division will enter intoan agreement (the **“Marketing Letter”),**inthe form set forth as Exhibit E, to memorialize the arrangement andrelated marketing obligations. Notwithstanding anything contained in anyMarketing Letter executed after the date hereof, the following terms andconditions shall apply to each EarthLink Bundled Package offered by a TWCDivision:

 

(i)**       **Theretail price for each EarthLink Bundled Package shall be a discounted pricecompared to the aggregate a la carte price of each service component of suchEarthLink Bundled Package (the resulting difference, the **“Discount”),**based on the TWC Division’sthen-current a la carte retail prices; provided, however, that to the extentany such EarthLink Bundled Package includes TWC’s digital phone service, theretail

 

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price for the digitalphone component shall be deemed to be the price at which such TWC Divisionoffers digital phone when bundled with at least one other service offering.

 

(ii)**                     **In respect of each Bundled Package, EarthLinkshall be responsible for 25% of the pro rata portion of the Discountattributable to the EarthLink High-Speed Service. Schedule 1 contains anillustrative example of the Discount allocation. For the avoidance of doubt,Schedule 1 shall be utilized for financial settlement between EarthLink and TWConly for Service Subscribers in the EarthLink Bundled Package. Financialsettlement of non-EarthLink Bundled Package Service Subscribers shall continueto be handled pursuant to the Agreement. The TWC Division shall be entitled todeduct EarthLink’s share of the Discount from the subscription fee split forthe EarthLink High-Speed Service portion of the EarthLink Bundled Package. Theparties agree that the EarthLink High-Speed Service component shall not appearas being discounted on the bill to the customer.

 

(iii)**                  **The TWC Division will have sole discretion to(i) establish and revise the retail price of the EarthLink Bundled Package(but not, for avoidance of doubt, the a la carte retail price of the EarthLinkHigh-Speed Service as offered by EarthLink) and any promotional offeringassociated with the EarthLink Bundled Package, and (ii) establish andrevise the specific TWC Division products, features and services to be includedin any EarthLink Bundled Package and any TWC promotional offering associatedwith the EarthLink Bundled Package. The TWC Division shall retain soleauthority to cancel any video or digital phone components of any EarthLinkBundled Package and to make corresponding pricing and discount allocationrevisions to such revised Bundled Packages.

 

(iv)**                 **The TWC Division will offer each EarthLinkBundled Package at _ the same price as it offers each comparable BundledPackage that includes a comparable service level offered by any otherhigh-speed ISP service. EarthLink may propose promotional offerings for theEarthLink Bundled Package, which shall be subject to the TWC Division’s priorwritten approval, such approval not to be unreasonably withheld or delayed;provided, however, that, if TWC consents to conduct an EarthLink-requestedpromotional offering for the EarthLink Bundled Package, TWC shall have noobligations with respect to such EarthLink Bundled Package under the firstsentence of this Section 5.2(b)(iv). EarthLink may also propose additionalservice offerings for the EarthLink Bundled Package to TWC. Such additionalservice offerings for the EarthLink Bundled Package shall require the priorwritten approval of Time Warner Cable’s corporate office.

 

(v)**                    **The TWC Division will retain customer-billingresponsibility for the Bundled Package. Nothing contained herein shall changeor modify EarthLink’s rights, as set forth in the Agreement, to set the retailprice for the a la carte EarthLink High-Speed Service and to sell otherservices outside the Bundled Package.

 

(vi)**                 **To the extent that the TWC Division chargesinstallation fees to install any service component included in the EarthLinkBundled Package, the TWC

 

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**6.****                         CPE ANDINSTALLATION**

 

**6.1****                 CPE.**

 

Unless otherwiseprovided by the Service Subscriber, TWC will provide to each Service Subscribersuch modems, Ethernet cards, splitters or other customer premises equipmentthat may be necessary for such Service Subscriber to access and use theEarthLink High-Speed Service with a single Device provided by such ServiceSubscriber (any such items or other equipment to be provided by TWC, the **“TWC CPE”**).****The costs of TWC CPE will be borne by TWC.

 

**6.2****                 CustomerInstallation.**

 

(a)**      **Subjectto Section 1.1 and Sections 6.2(c), TWC will be responsible for andprovide all Installation Services, if any, to successfully allow each ServiceSubscriber to access and use the EarthLink High-Speed Service through a Device,regardless of which Party completes the sale.

 

(b)**      **TheParty completing the sale for the applicable EarthLink High-Speed Service willdecide whether and how much to charge the Service Subscriber for aninstallation fee, set-up fee or other upfront fee or charge, it beingunderstood that there is no requirement to assess such a fee or charge. TWChereby acknowledges and agrees that it shall not assess an installation fee toService Subscribers if TWC does not assess an installation fee to similarlysituated Road Runner customers. For Service Subscribers sold by EarthLink,EarthLink shall pay TWC, within thirty (30) days of the end of the calendarmonth in which an installation fee, set-up fee or other upfront fee or chargeis charged by EarthLink, an amount equal to fifty percent (50%) of the amountcharged, whether payable as a lump sum or otherwise.

 

(c)**      **TWCand EarthLink will work together toward achieving self- provisioning by ServiceSubscribers, and to implement self-provisioning in accordance with TWC’sgenerally applicable requirements regarding protection of the System Facilitiesas soon as available. TWC shall make all decisions regarding implementation inits reasonable business judgment; provided that TWC shall not make suchdecisions based upon whether a particular high-speed service customer is aService Subscriber or a customer of another Online Provider or Road Runner. TheParties will work together toward the goal of achieving seamlessself-provisioning.

 

(d)**      **IfEarthLink or its third party installer provides any installation services forDevices or otherwise provides services that include any contact with the SystemFacilities, EarthLink will indemnify TWC for all damages, costs and expensesincurred by TWC resulting therefrom, including but not limited to repair of theSystem Facilities and fines or fees payable to the FCC for signal leakageviolations.

 

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**7.****                         CUSTOMERSERVICE; TECHNICAL SUPPORT AND BILLING**

 

**7.1****                 Customer Serviceto Service Subscribers.**

 

As it is expected that Service Subscribers may call either Party forcustomer service, EarthLink and TWC will cooperate to ensure a smooth customerservice experience (e.g., coordination to determine which Party should handlewhich issue, appropriate transfers from one Party to the other, sharing ofcertain information, etc.). Each Party shall agree to handle common, simplesubscriber issues related to service availability, service features andcharges, basic troubleshooting plan, and billing issues. TWC and EarthLink willcoordinate to reasonably provide information to each other and handle handoffof issues where problem resolution is the obligation of the other Party. Issuesto be handled by TWC shall include any issue relating to TWC’s obligationshereunder (including issues relating to System Facilities and TWC CPE andInstallation Services to the extent provided by TWC). Issues to be handled byEarthLink shall include any issue relating to EarthLink’s obligations hereunder(including issues relating to EarthLink Software, support for downloadedsoftware provided by or on behalf of EarthLink that is a component of theEarthLink High-Speed Service, and web and email support). Each Party will beresponsible for handling billing issues with respect to the EarthLinkHigh-Speed Service that is billed by such Party, with appropriate handoffs forother billing inquiries. Each Party will provide the same level of end-usersupport that it currently provides for its respective services; *provided*that such level of customerservice will be modified, if required, to comply with applicable law. Theextent to which the Parties shall work together and otherwise assure the bestcustomer experience within the foregoing responsibilities, as well as moredetailed requirements and procedures regarding customer service, shall be setforth in an implementation plan mutually agreed by the Parties.

 

**7.2****                 Technical Supportto the Other Party.**

 

Each Party will provide the other Party, where necessary, withreasonable technical support via telephone and e-mail, and documentation andother information that is reasonably sufficient to enable such other Party toprovide technical support within such Party’s area of responsibility to ServiceSubscribers. More detailed requirements and procedures regarding technicalsupport between the Parties shall be set forth in a plan mutually agreed by theParties. The Parties will use reasonable efforts to provide prompt alarmnotifications of outages in accordance with procedures to be agreed upon. Ifand when TWC makes available to any Online Provider visibility into statusmonitoring of the TWC System Facilities, TWC shall make it available toEarthLink in a manner based on TWC’s reasonable business judgment.

 

**7.3****                 Billing.**

 

TWC shall be responsible for billing Service Subscribers for theEarthLink High-Speed Service. TWC may terminate a Service Subscriber’sEarthLink High-Speed Service in accordance with TWC’s standard billing policiesand practices.

 

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**8.****                         TERM ANDTERMINATION**

 

**8.1****                 Term.**

 

Other than Sections 3(a)(ii) and (iii), which shall be effectiveas of the Execution Date, the terms and conditions of this Agreement shall beeffective as of November 1, 2006 (the **“EffectiveDate”**),****and unlessearlier terminated as set forth in this Agreement, shall expire five (5) yearsfrom the Effective Date.

 

**8.2****                 TerminatedAgreements.**

 

The Parties hereby agree that, upon the Effective Date: (i) theMultiple Tier Notice Letter, dated as of August 10, 2004, from TWC toEarthLink, and the Alternative Service Levels Terms and Conditions referred totherein, shall cease to have any force or effect; (ii) the Bundling LetterAgreement between EarthLink and TWC, dated on or about May 4, 2005, shallterminate; (it being understood that Existing Bundling Agreements shall surviveor remain in full force and effect) (iii) the side letter between TimeWarner Entertainment Company, L.P. (**“TWE”**)and EarthLink, dated as of July 2, 2001, shall terminate; and (iv) theAgreement for Internet Transit Services between EarthLink and TWE, dated as of July 2,2001, as amended, shall terminate.

 

**8.3****                 Termination forCause.**

 

Either Party shall have the right to terminate this Agreement withoutliability to such Party (the **“TerminatingParty”**)****and uponwritten notice to the other Party (the **“BreachingParty”**),****in the eventof (a) a material breach of this Agreement by the Breaching Party, if suchbreach is not cured within thirty (30) calendar days after written notice bythe Terminating Party to the Breaching Party of such breach, *provided, however*that if the BreachingParty has used commercially reasonable efforts during such initial cure periodto cure such breach, and if such breach is not curable with such thirty (30)day period, the cure period shall be extended for an additional thirty (30)days subject to the Breaching Party’s continued use of commercially reasonableefforts to cure such breach during such extension, or (b) repeatedmaterial breaches of a material term of this Agreement of a similar nature by aParty, even if cured, which would justify a reasonable person, acting in goodfaith and considering relevant industry standards, to terminate this Agreement.

 

**8.4****                 Termination forBankruptcy/Insolvency.**

 

Either Party may terminate this Agreement immediately following writtennotice to the other Party if the other Party (a) ceases to do business inthe normal course, (b) becomes or is declared insolvent or bankrupt by acourt of competent jurisdiction, (c) is the subject of any proceedingrelated to its liquidation or insolvency (whether voluntary or involuntary)which is not dismissed within ninety (90) calendar days, or (d) makes a generalassignment for the benefit of creditors.

 

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**8.5****                 Termination forTransit Fee Surcharge.**

 

EarthLink shall have the right to terminate this Agreement inconnection with an increase the monthly Transit Surcharge specifically asprovided for in Section 2.2(d)(v) herein. Such termination will beeffective sixty (60) days from EarthLink’s notification thereof. The provisionsof Section 8.6 shall apply with respect to a termination under this Section 8.5,and the Transit Surcharge during the Transition Period shall be the TransitSurcharge calculated based on a Benchmark Date Average of 54 kbps.

 

**8.6****                 Transition.**

 

Upon any expiration or termination of this Agreement other thanpursuant to Section 8.3 (for cause due to actions of EarthLink) or Section 8.4(for bankruptcy/insolvency of EarthLink), any existing Service Subscribers tothe EarthLink High-Speed Service that are affected by such expiration ortermination will be able to continue receiving such EarthLink High-SpeedService for three (3) years thereafter (such period the **“Transition Period”**),****except that in the event of TWC’stermination of this Agreement pursuant to Section 8.3 (for cause due toactions of EarthLink) or Section 8.4 (for bankruptcy/insolvency ofEarthLink), the Transition Period shall be limited to six (6) months fromtermination. The terms and conditions of this Agreement applicable to theprovision of the EarthLink High-Speed Service, as well as those terms andconditions set forth in Exhibit C (subject to the express provisions ofsuch terms and conditions regarding expiration), shall continue to apply duringthe Transition Period, and must be complied with for a Party to require theother to continue to honor the Transition Period.

 

**9.****                         DEDICATIONOF RESOURCES; BUSINESS PRACTICES; TERMS OF SERVICE**

 

**9.1****                 Dedication ofResources.**

 

Both EarthLink and TWC will commit personnel and resources to address,coordinate and resolve back-end issues, particularly with respect toprovisioning, authentication, billing, customer service and technical supportfor the EarthLink High-Speed Service. EarthLink and TWC will cooperate toensure that the EarthLink High-Speed Service, the EarthLink Software, theSystems Facilities and the TWC Cable Systems remain compatible. Each Partyagrees to cover its costs associated with the development, integration, testingand deployment of the corresponding systems it owns or operates.

 

**9.2****                 BusinessPractices.**

 

The Parties agree to comply with the Business Practices Handbookattached as Exhibit B as the same has been or may in future besupplemented or augmented by TWC’s reasonable business policies and practices.With respect to shared information, and information that one Party receiveshereunder regarding the high-speed data service customers of the other, thereceiving Party shall abide by the disclosing Party’s (or Party with thecustomer relationship, if applicable) privacy policies, as provided by suchother Party.

 

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**9.3****                 Terms of Service.**

 

Each Party may agree upon terms of service with each Service Subscriberwith respect to the EarthLink High-Speed Service and any other of such Party’sproducts or services; provided, however, that (a) EarthLink shall notwarrant or guarantee to any Service Subscriber any minimum throughput orperformance level that is dependent upon the TWC HSS or the System Facilitieswithout TWC’s written approval, and (b) in the event of any inconsistencybetween such terms of service of the respective Parties, the Parties shalldiligently work together to resolve such inconsistencies and act accordingly indealing with Service Subscribers. Either Party may terminate a ServiceSubscriber’s Service Subscription for a violation of that Party’s terms andconditions, subscription agreements or acceptable use policies. Each Party’sterms of service will be based on such Party’s generally applicable policies.

 

**10.****                  NO EXCLUSIVITY.**

 

Neither Party will have the obligation to provide services exclusivelyto or deal exclusively with the other Party with regard to the subject matterof this Agreement. Without limiting the generality of the foregoing, (a) TWCshall have the right to offer, market, promote, provide and distribute servicesthrough the TWC Cable Systems and System Facilities, on such terms and withsuch service levels and priorities, as it shall determine in its solediscretion, and (b) EarthLink shall have the right to offer, market,promote, provide and distribute EarthLink services through any other systemsand facilities, on such terms and with such service levels and priorities, asit shall determine in its sole discretion.

 

**11.****                  REPORTING**

 

**11.1****          By TWC**

 

To the extent then available, TWC will provide, for any Launched TWCDivision, monthly reports with the total number of Service Subscribers forwhich TWC completed the sale during the preceding month. If available, suchreport will be delivered within 15 days after the last day of the prior month.To the extent available, TWC will also provide usage reports of aggregate bitconsumption by individual Service Subscribers. TWC will provide informationfrom TWC’s address log files in a format and manner to be mutually agreed upon.TWC will provide EarthLink with reasonable advance notice of any scheduled outagesof the System Facilities within the TWC Divisions where the EarthLinkHigh-Speed Service is offered. To the extent then available, EarthLink shallreceive a monthly report of each TWC Division’s EarthLink Service Subscriberbilling activity (which may include, without limitation, orders, cancels,pending installs, installs completed and disconnects from the billing system ofeach division, and product bundling detail). To the extent then available,EarthLink shall receive a monthly report of each TWC Division’s EarthLinkService Subscriber trouble tickets, and any credit or refunds issued to anyService Subscriber. Notwithstanding the foregoing, TWC will provide toEarthLink those reports concerning TWC’s provision of the EarthLink High-SpeedService that EarthLink requires to comply with applicable law. To the extentthat EarthLink requires any reports in order to comply with applicable lawwhich are different from or, in any material way, additive to those reportsthat TWC generates in the ordinary course of its business, EarthLink shallreimburse TWC for its costs in producing such reports.

 

23

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**11.2****          By EarthLink**

 

To the extent then available, EarthLink shall provide TWC with monthlyreports, in a detailed format reasonably satisfactory to TWC, setting forth (a) thetotal number of Service Subscribers for which EarthLink completed the saleduring the preceding month, and (b) the total number of ServiceSubscribers to the EarthLink High-Speed Service.

 

**12.****                  STANDARD LEGALTERMS.**

 

The Standard Legal Terms & Conditions set forth on Exhibit Cattached hereto are each hereby made a part of this Agreement.

 

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**IN WITNESS WHEREOF,**the Parties hereto have executed thisAgreement as of the Execution Date.

 

 
| **TIME  WARNER CABLE INC.**            | ** ** | **EARTHLINK,  INC.**                                       |
|----------------------------------------|------------|------------------------------------------------------------|
| ** **                             | ** ** | ** **                                                 |
| /s/ David E. O’ Hayre             |       | /s/ Michael C. Lunsford                                    |
| (signature)                            |       | (signature)                                                |
|                                   |       |                                                       |
|                                   |       |                                                       |
|                                   |       |                                                       |
| David E. O’ Hayre                 |       | Michael C. Lunsford                                        |
|                                   |       |                                                       |
|                                   |       |                                                       |
|                                   |       |                                                       |
| Executive  Vice President, Investments |       | Executive  Vice President and President,  Access and Voice |
|                                   |       |                                                       |
|                                   |       | 7/5/06                                                     |

 

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**SCHEDULE 1**

** **

**The following is an example of the Discount allocation(actual prices may apply).**

 

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**EXHIBIT A**

** **

**DEFINITIONS**

** **

**“AdditionalEarthLink Revenues”**means any and all revenues (or, in thecase of barter transactions, the fair market value of the considerationreceived), other than the Retail Price, recognized by EarthLink or anyAffiliate Controlled by EarthLink in accordance with GAAP from:

 

(1) the offering ofthe EarthLink High-Speed Service; or

 

(2) services thatutilize, or are reasonably necessary to provide or support, the EarthLinkHigh-Speed Service; or

 

(3) services thatutilize the System Facilities.

 

Subject to the foregoing,Additional EarthLink Revenues shall include the following:

 

(a) revenues from (i) anyproducts, services, features or functions available to Service Subscribers onlyby paying a one-time or subscription fee that is in addition to the regularfees for Service Subscription; or (ii) any standalone products, services,features and functions that are available to subscribers independent of theEarthLink High-Speed Service only by paying a one-time or subscription fee (e.g.,Premium EarthLink High-Speed Services);

 

(b) revenues fromadvertising and other promotional and paid for placements generated inconnection with the EarthLink High-Speed Service; and

 

(c) revenues fromtransactions conducted on, via or resulting from the EarthLink High-SpeedService (so-called **“e-commerce”**transactions),*provided,however*,**that for purposes of revenues addressed insubsections (b) and (c) of this definition, Additional EarthLinkRevenues shall be determined as follows:

 

(i) to the extentknown to be derived from and only from Service Subscribers utilizing the SystemFacilities, 100% of such revenues;

 

(ii) to the extentknown to be derived from and only from users of EarthLink broadband services,an allocation of such revenues based on the aggregate number of ServiceSubscribers utilizing the System Facilities relative to the aggregate number ofusers of all of EarthLink broadband services; and

 

(iii) to the extentknown to be derived from users of EarthLink’s broadband services and users ofEarthLink’s narrowband services, or where such revenues fall within thedefinition of Additional EarthLink Revenues but do not fall within any of theforegoing categories, an allocation of such revenues based on the aggregatenumber of Service Subscribers utilizing the System Facilities relative to theaggregate number of users of EarthLink broadband and narrowband services;

 

*providedthat*Additional EarthLink Revenues will not include:

 

(w) fees charged toService Subscribers solely for the provision of additional e-mail **“boxes”**;

 

(x) fees charged forWeb site hosting services; or

 

(y) fees charged forhome installation or customer technical support.

 

A-1

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Additional EarthLinkRevenues shall be net of the following to the extent included therein:

 

(aa) collected franchisefees (whether remitted or reserved for remission);

 

(bb) commissions andbounty payments to unaffiliated third parties, Sprint Corporation and itsaffiliate entities other than the EarthLink Entities and employee salesrepresentatives, but only to the extent such commissions and bounties are notgreater than market rate levels for such commissions and bounties;

 

(cc) separately invoicedsales, excise or similar taxes; and

 

(dd) direct out of pocketcost of goods sold/services provided, whether or not recorded by EarthLink forfinancial accounting purposes as “cost of goods sold”, “cost of revenues”, “revenueshare” or other terms of similar import.

 

For example,

 

(1) in the event aService Subscriber purchases a wireless device such as a Palm Pilot or aBlackberry over the EarthLink High-Speed Service and EarthLink is paid a feebased on both the purchase transaction and the Service Subscriber’s wirelesssubscription fees, the fee paid to EarthLink based on the purchase transactionwould constitute Additional EarthLink Revenues while the fee paid to EarthLinkbased on the monthly subscription fee would not.

 

(2) in the eventEarthLink generates advertising revenues based on Service Subscriber access toan advertisement, notwithstanding the fact that the advertisement was targetedto narrowband customers, the portion of revenues allocable to ServiceSubscribers would be considered to be Additional EarthLink Revenues while the portion of revenuesallocable to other EarthLink users would not.

 

(3) in the eventEarthLink generates advertising revenues which are not based on ServiceSubscriber access to such advertisement or otherwise generated through the useof the System Facilities, the fees generated from the advertisement will not beconsidered to be Additional EarthLink Revenues.

 

**“Affiliate”**means, with respect to a Party, an entity that, directly orindirectly, Controls, is Controlled by, or is under common Control with suchParty.

 

**“Agreement”**has the meaning set forth in the preamble to this agreement.

 

**“AnnualBenchmark Date”**means the Effective Date and each twelve (12)month anniversary thereof.

 

**“AnnualBenchmark Date Average”**has the meaning set forth in Section 2.2(d)(ii).**“Base Transit Charge”**has themeaning set forth in Section 2.2(d)(i).

 

**“BasicEarthLink High-Speed Service”**means the basic service,including Internet access that EarthLink specifies to be the offering for theRetail Price. EarthLink agrees that the Basic EarthLink High-Speed Serviceoffering will (i) be the only EarthLink High-Speed Service offering thatincludes Internet access; and (ii) at least substantially include thefeatures, content and functionality EarthLink generally provides as part of itsbasic wireline broadband service offerings.

 

**“BrightHouse Cable System”**means a cable television system orportion thereof (i) which is owned or Controlled by

 

A-2

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Bright House NetworksLLC, and (ii) with regard to which TWC or any Affiliate of TWC (including,for avoidance of doubt, Bright House Networks LLC) has the right, throughcontract or otherwise, to make decisions with respect to the Internet servicesto be provided on such system, and which, in each case, is capable of providingInternet access to end users.

 

**“Bright House Service Level 1 Service Subscription”, “BrightHouse Service Level 1 Service Subscribers”, “Bright House Service Level 2Service Subscription” or “Bright House Service Level 2 Service Subscribers”**means those Service Subscriptions or thoseService Subscribers for whom Service Subscriptions are provided on Bright HouseCable Systems.

 

**“Confidential Information”**means any information relating to ordisclosed in the course of this Agreement, which is, or should be reasonablyunderstood to be, confidential or proprietary to the disclosing Party (and allsuch material in tangible form shall be conspicuously labeled confidential orproprietary; and all such information conveyed orally shall be summarized in awriting that is so labeled and delivered to the other Party within thirty (30)days of the disclosure thereof), including (i) information (whether or notlabeled confidential or proprietary) about Service Subscribers, and (ii) technicalprocesses and formulas, source codes, product designs, sales, cost and otherunpublished financial information, product and business plans, projections andmarketing data. Notwithstanding the foregoing, “Confidential Information” shallnot include information (a) already lawfully known to or independentlydeveloped by the receiving Party, (b) disclosed in published materials, (c) generallyknown to the public, or (d) lawfully obtained from any third party. “ConfidentialInformation” shall include, as to each Party, the terms of this Agreement.

 

**“Control”**and its derivatives shall mean with regard to any entity (a) thelegal or record, beneficial, or equitable ownership, directly or indirectly, offifty percent (50%) or more of the capital stock (or other ownership interest,if not a corporation) of such entity ordinarily having voting rights, or (b) thedirect or indirect possession of the power to direct or cause the direction ofthe management and policies of an entity, whether through the ownership ofvoting securities, by contract, management agreement or otherwise.

 

**“Device”**has the meaning set forth in Section 1.4(a).

 

**“Documentation”**means the EarthLink-provided documentation,packaging, brochures and similar materials related to use of the EarthLinkHigh-Speed Service and EarthLink Software, which are intended for distributionto Service Subscribers, including any modifications, enhancements orderivatives thereto.

 

**“EarthLink”**has the meaning set forth in the preamble to this Agreement.

 

**“EarthLink Content”**means all content created and controlled byEarthLink and provided to Service Subscribers on the EarthLink High-SpeedService.

 

**“EarthLink Deliverables”**has the meaning set forth in Section 5.4.

 

**“EarthLink Entities”**means EarthLink, EarthLink Operations, Inc.and their direct and indirect subsidiaries.

 

**“EarthLink High-Speed Service”**means any and all IP services, as suchservices may change from time to time, that is (are) offered by EarthLink toend-users

 

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over the SystemFacilities in accordance with the terms of this Agreement and exclusivelyincludes the Basic EarthLink High-Speed Service and the Premium EarthLinkHigh-Speed Services. All EarthLink High-Speed Services will be offered underthe brand “EarthLink”, unless otherwise agreed by the Parties.

 

**“EarthLink Look and Feel”**means the elements of graphics, design,organization, presentation, layout, user interface, navigation, trade dress andstylistic convention (including the digital implementations thereof) within theEarthLink High-Speed Service and the total appearance and impressionsubstantially formed by the combination, coordination and interaction of theseelements.

 

**“EarthLink Software”**means the client software developed anddistributed by or on behalf of EarthLink, including any modifications,enhancements or derivatives thereto, that enables Service Subscribers to accessand use the EarthLink High-Speed Service.

 

**“Immediately Adjacent”**in reference to two Operating Areas meansthat the Operating Areas either: (a) are physically contiguous; or (b) areoperated based on a shared headend configuration or two separate headendconfigurations with direct coaxial fiber connections, regardless of whether theOperating Areas are physically contiguous, as long as, with respect to (b),such new TWC Cable System is capable of handling the EarthLink High-SpeedService without extraordinary effort on the part of TWC.

 

**“Incentive****Benchmark”**has themeaning set forth in Section 2.2(c)(i)(B).

 

**“Incentive Benchmark Date”**has the meaning set forth in Section 2.2(c)(i)(B).

 

**“Include,” “includes”,**and **“including”,**whether or not capitalized, shall mean “include but are not limitedto”, “includes but is not limited to”, and “including but not limited to”,respectively.

 

**“Indemnified Party”**has the meaning set forth in Section 6.3of Exhibit C.

 

**“Indemnifying Party”**has the meaning set forth in Section 6.3of Exhibit C.

 

**“Installation Services”**means the installation services necessary inTWC’s reasonable discretion to schedule, install and activate the EarthLinkHigh-Speed Service to a single Device meeting reasonable specifications, whichservices shall include (a) the scheduling and installation of cabling, ifnecessary, in and outside the home, (b) the connection and installation ofall CPE (including, with regard to a modem, the related software) in or to theService Subscriber’s Device, (c) installation of the EarthLink Softwarenecessary to allow the Service Subscriber to access and use the EarthLinkHigh-Speed Service (d) confirmation that the Service Subscriber’s Devicesuccessfully accesses the EarthLink High-Speed Service, and (e) anynecessary follow-up services in connection with failures of the installationservices referenced in subsections (a) through (d) to be performedproperly, as determined in TWC’s reasonable good faith discretion. For theavoidance of doubt, Installation Services shall not include (w) anysubsequent service call unrelated to the work performed in connection with theinitial installation of the EarthLink High-Speed Service, (x) maintenanceof inside wiring, (y) design, installation or maintenance of homenetworking systems or (z) other service calls necessitated by the

 

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unauthorized actions ofthe Service Subscriber or EarthLink or its contractors.

 

**“Internet”**means the interconnected network of networks used to communicatedigital data to unique addresses and commonly referred to as the **“Internet”**.

 

**“Launch”**and its derivatives means: (i) with respect to a TWC Cable System,that all of the following have occurred with respect to such system: (a) itis connected to the System Facilities, and the TWC Cable System and the SystemFacilities, as so connected, have each met the relevant testing and acceptancecriteria; (b) unless otherwise mutually agreed, the date scheduled forcommencement of EarthLink High-Speed Service in such TWC Cable System shallhave occurred; and (c) such TWC Cable System is first capable ofdistributing the EarthLink High-Speed Service in accordance with the Agreement;and (ii), with respect to a TWC Division, that the first TWC Cable Systemtherein shall have Launched.

 

**“LFA”**means local franchise authority.

 

**“Losses”** means all losses, damages, actions, claims, liabilities, expenses, andcosts (including reasonable attorneys’ fees).

 

**“Marks”**has the meaning set forth in Section 1 of Exhibit C.

 

**“Online Provider”**means an Internet service provider orprovider of an online service (as such terms are understood as of the EffectiveDate), other than the Road Runner service.

 

**“Operating Area”**means that area where a TWC Cable System (a) isauthorized by the appropriate governmental agency, authority or instrumentalityto operate, (b) is operating, or (c) is obligated by law to operateor become operational.

 

**“Party”**and**“Parties”**has themeaning set forth in the preamble to this Agreement.

 

**“Personal Start Page”**means the TWC-EarthLink co-branded page describedin Section 4.1 herein.

 

**“Premium EarthLink High-Speed Services”**shall mean any and all EarthLink High-SpeedServices offered to Service Subscribers in addition to the Basic EarthLinkHigh-Speed Services, including but not limited to premium or other subscriptionservices, or pay-per-use/view services and including IP telephony that is notpart of the Basic EarthLink High-Speed Service, provided, however, that PremiumEarthLink High-Speed Services shall not include the provision of additionale-mail **“boxes”**or Web site hostingservices.

 

**“Press Release”**has the meaning set forth in Section 3.2of Exhibit C.

 

**“Promotional Materials”**shall have the meaning set forth in Section 3.1of Exhibit C.

 

**“Records”**has the meaning set forth in Section 8 of Exhibit C.

 

**“Retail Price”**shall have the meaning set forth in Section 2.1.

 

**“Revenue Share”**shall have the meaning set forth in Section 2.3.

 

**“Service Level 1”**has the meaning set forth in Section 1.4(a).

 

**“Service Level 2”**has the meaning set forth in Section 1.4(b).

 

A-5

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**“Service Level 3”**has the meaning set forth in Section 1.4(c).

 

**“Service Subscriber”**means an end-user that subscribes to orotherwise purchases or contracts to receive an EarthLink High-Speed Serviceunder this Agreement, including Service Subscribers that first subscribed to orotherwise purchased or contracted to receive the EarthLink High-Speed Serviceunder the High-Speed Service Agreement between the parties dated November 18,2000.

 

**“Service Subscriber Information”**has the meaning set forth in Section 12.2of Exhibit C.

 

**“Service Subscription”**means a single subscription by a ServiceSubscriber for receipt of any Service Level of the EarthLink High-Speed Serviceto one or more Devices at a single location utilizing a single cable modemdevice.

 

**“SL1 EarthLink Monthly Fee****”** has the meaning set forth in Section 2.2(a).

 

**“SL2 EarthLink Monthly Fee”** has the meaning set forth in Section 2.2(b).

 

**“SL3 EarthLink Monthly Fee”**has the meaning set forth in Section 2.2(c).

 

**“SL1 TWC Monthly Fee”**has the meaning set forth in Section 2.2(a).

 

**“SL2 TWC Monthly Fee”**has the meaning set forth in Section 2.2(b).

 

**“SL3 TWC Monthly Fee”**has the meaning set forth in Section 2.2(c).

 

**“System Facilities”**means the TWC Cable Systems and otherequipment, software and facilities, including but not limited to the networkinginfrastructure (including all the physical and RF facilities, neighborhoodcabling and neighborhood aggregation points), ATD Network, connecting theInternet to the cable modem or other device in which the network termination islocated at the location of each Service Subscriber; *provided, however*,**that System Facilities shall notinclude any EarthLink Software.

 

**“Term”**has the meaning set forth in Section 8.1.

 

**“Terminating Party”**has the meaning set forth in Section 8.2.

 

**“Third Party Claim”**means any claim, demand, action, suit,investigation, arbitration or other proceeding by a third party against aParty.

 

**“Third Party EarthLink Content”**means all content provided to ServiceSubscribers on the EarthLink High-Speed Service that is created and controlledby (a) any user of any of the content or services included in theEarthLink High-Speed Service except for that content which is controlled by TWCand its Affiliates or which is hosted on TWC’s or its Affiliates’ servers, or (b) athird party with whom EarthLink or any of its Affiliates has a contractualrelationship under which such third party provides such content on theEarthLink High-Speed Service.

 

**“Third Party TWC Content”**means all content provided to ServiceSubscribers on the TWC Site that is created and controlled by a third partywith whom TWC or any of its Affiliates has a contractual relationship underwhich such third party provides such content on the TWC Site.

 

**“Time Warner Company”**means TWC, Time Warner Inc. (**“TWI”**), Time Warner Entertainment Company,L.P.

 

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(**“TWE”**), Time WarnerEntertainment-Advance/Newhouse Partnership (**“TWEAN”**),Bright House Networks LLC or TWI Cable Inc. (**“TWIC”**),or any other corporation, partnership, joint venture, trust, joint stockcompany, association, unincorporated organization (including a group acting inconcert) or other entity as to which any one or more of TWC, TWI, TWE, TWEAN orTWIC directly or indirectly possesses the power to direct or cause thedirection of such entity’s management and policies, whether through theownership of voting securities, by contract, management agreement or otherwise.

 

**“Transit Surcharge”**has the meaning set forth in Section 2.2(d).

 

**“Transition Period”**has the meaning set forth in Section 8.6.

 

**“TV Services”** has the meaning set forth in Section 1.4(b)(i).

 

**“TWC”** has the meaning set forth in the preamble to this Agreement.

 

**“TWC Cable System”**means a cable television system or portionthereof (i) which is managed by a Time Warner Company, and (ii) withregard to which TWC or any Affiliate of TWC (including, for avoidance of doubt,Bright House Networks LLC) has the right, through contract or otherwise, tomake decisions with respect to the Internet services to be provided on suchsystem, and which, in each case, is capable of providing Internet access to endusers.

 

**“TWC Content”**means all content created and controlled byTWC and provided to Service Subscribers on the TWC Site.

 

**“TWC CPE”**has the meaning set forth in Section 6.1.

 

**“TWC Divisions”**means each group of TWC Cable Systems that ismanaged as a single business unit within TWC under a divisional president,other than TWC’s “National Division” and “Southwest Texas Division” (each ofwhich, unlike other TWC divisions, is comprised of numerous small systems thatare generally not contiguous or connected to each other). Each TWC Cable System(or where TWC Cable Systems are contiguous and connected, each group ofcontiguous, connected TWC Cable Systems) within the National Division will beconsidered a separate TWC Division herein.

 

**“TWC Service Level 1 Service Subscription”, “TWCService Level 1 Service Subscribers”, “TWC Service Level 2 Service Subscription”or “TWC Service Level 2 Service Subscribers”**means those Service Subscriptions or thoseService Subscribers for whom Service Subscriptions are provided on TWC CableSystems other than Bright House Cable Systems.

 

**“TWC Site”**means those Internet sites that are linked, by one or more links, tothe Personal Start Page or the TWC home page or to a TWC Divisionsite.

 

**A-7**

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** **

**EXHIBIT B**

** **

**BUSINESSPOLICIES HANDBOOK**

** **

The Parties will conferand agree upon business policies to be incorporated into this Agreement. Untilsuch business policies are formally incorporated herein, the Parties shallcontinue to apply existing business policies as they may be modified by theParties during the Term.

 

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**EXHIBIT C**

** **

**STANDARD LEGAL TERMS AND CONDITION**

** **

**1.****                         TRADEMARKS.**

 

**1.1      TrademarkLicense.** Indesigning, implementing, publishing, reproducing and distributing anyPromotional Materials and subject to the other provisions contained in theAgreement: (a) TWC and its Affiliates shall be entitled to use thefollowing trade names, trademarks and service marks of EarthLink: “EarthLink”and the EarthLink “orbit” logo, and in connection therewith, TWC shall complywith the EarthLink style guide to be provided by EarthLink prior to the firstLaunch and from time to time thereafter; and (b) EarthLink and itsAffiliates shall be entitled to use the following trade names, trademarks andservice marks of TWC: Time Warner Cable, Time Warner Communications and theeye/ear logo, and in connection therewith, EarthLink shall comply with the TWCstyle guide to be provided to EarthLink prior to the first Launch and from timeto time thereafter (collectively, together with the EarthLink marks listedabove, the “Marks”); provided that each Party: (i) does not create aunitary composite mark involving a Mark of the other Party without the priorwritten approval of such other Party and (ii) displays symbols and noticesclearly and sufficiently indicating the trademark status and ownership of theother Party’s Marks in accordance with applicable trademark law and practice.Each Party may authorize the other Party to permit such other Party’sauthorized distributors of the EarthLink High-Speed Service to use such Party’sMarks in accordance with this Section. The Parties shall coordinate use of suchauthorized distributors in order to minimize possibilities of conflict betweenthe distribution channels utilized by the Parties.

 

**1.2      Rights.** Each Party acknowledges that its utilizationof the other Party’s Marks will not create in it, nor will it represent it has,any right, title or interest in or to such Marks other than the licensesexpressly granted herein. Each Party agrees not to do anything contesting orimpairing the trademark rights of the other Party.

 

**1.3      QualityStandards.** EachParty agrees that the Marks are associated with high standards of quality andservices of the Mark’s respective owners, and that maintaining such uniformlevel of quality is necessary to maintain the goodwill and reputation of theParties, respectively; and that the nature and quality of such Party’s productsand services supplied in connection with the other Party’s Marks shall conformto reasonable quality standards provided by the other Party for the protectionof the Marks. Each Party agrees to supply the other Party, upon request, with areasonable number of samples of any Promotional Materials publicly disseminatedby such Party that utilize the other Party’s Marks. Each Party shall complywith all applicable laws, regulations and customs and obtain any requiredgovernment approvals pertaining to use of the other Party’s Marks.

 

**1.4      InfringementProceedings.** EachParty shall have the sole right and discretion to bring proceedings alleginginfringement of its Marks or unfair competition related thereto; provided,however, that each Party agrees to provide the other Party, at such other Party’s

 

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expense, with itsreasonable cooperation and assistance with respect to any such infringementproceedings.

 

**2.****                         OWNERSHIP.**

 

As between the Parties, each Party shall own all information that itcollects from prospective, actual and former Service Subscribers in a mannernot violating this Agreement; provided, however, that where both Partiescollect the same information in a manner not violating this Agreement, bothParties shall own such information, without any duty of accounting to the otherParty. As between EarthLink and TWC, the EarthLink Deliverables and any enhancementsand improvements thereto, including all intellectual property rights containedor embodied therein, are and shall remain the exclusive property of EarthLinkexcept for any TWC Marks or other TWC materials provided to EarthLink by TWCpursuant to this Agreement for inclusion in or to advertise, market or promotethe EarthLink High-Speed Service in which case TWC shall be deemed to havegranted a non-exclusive license thereto for such use, but solely to the extentnecessary for EarthLink to perform its obligations under this Agreement. TWCshall not in any way alter, interfere with or modify the EarthLink Software orthe functionality, user interface or experience of the EarthLink High-SpeedService. TWC shall not copy, use, reverse engineer, reproduce, display, modifyor transfer the EarthLink Software, Documentation or any other EarthLinkDeliverables, or any derivative works thereof, except to the extent necessaryto perform its obligations under this Agreement or as expressly permitted byapplicable law. EarthLink owns all right, title and interest in all aspects ofthe EarthLink Deliverables and the content, applications, features,functionality products and services included in the EarthLink High-SpeedService (including the EarthLink Look and Feel and all advertising andpromotional spaces within the EarthLink High-Speed Service). TWC owns allright, title and interest in all aspects of the TWC Site (including alladvertising and promotional spaces within the TWC Site) except for contentprovided by EarthLink for use, placement or incorporation therein, which, asbetween TWC and EarthLink, shall remain owned by EarthLink, and EarthLink shallbe deemed to have granted a non-exclusive license thereto for such use,placement or incorporation therein.

 

**3.****                         PROMOTIONALMATERIALS; PRESS RELEASES.**

 

**3.1      PromotionalMaterials.**EachParty shall submit to the other Party, for its prior written approval, whichwill not be unreasonably withheld or delayed, any marketing, advertising, orother materials to the extent such materials reference the other Party, thetransactions contemplated hereunder or the other Party’s Marks (the “PromotionalMaterials”). If such approval is not affirmatively granted, it shall be deemeddenied.

 

**3.2      PressReleases.**Subjectto Section 5 of this Exhibit C, each Party will submit to the otherParty, for its prior written approval, which will not be unreasonably withheldor delayed, any press release or any other public statement (each, a “PressRelease”) related to the transactions contemplated hereunder; provided,however, that (a) the timing and text of any initial Press Releasedescribing the relationship created hereunder shall be jointly prepared by theParties and shall not be issued until each Party, in its sole discretion (notto be unreasonably delayed or withheld) so agrees, and (b) if there is amutually agreed joint Press Release

 

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describing therelationship created hereunder, either Party thereafter may make an accuratefactual reference to the existence of such relationship, without any furtherdescription, in subsequent Press Releases without obtaining prior writtenapproval. Grounds for withholding approval of a Press Release shall include theinclusion in any Press Release of any Confidential Information or anyinformation relating to the economic terms of this Agreement. Any approvalrequired hereunder not affirmatively granted shall be deemed denied.

 

**4.****                         REPRESENTATIONSAND WARRANTIES.**

 

Each Party: (i) represents and warrants to the other Party that ithas the full corporate right, power and authority to enter into the Agreement,to grant the rights and licenses granted hereunder and to perform the actsrequired of it hereunder; and (ii) represents and warrants to the otherParty that the execution and performance of the Agreement by such Party doesnot, and will not, violate any agreement to which such Party is a party or bywhich it is otherwise bound or any applicable governmental law or regulation towhich it is subject; and (iii) warrants that it shall perform itsresponsibilities under this Agreement in a manner that does not constitute alibel or defamation of the other Party or infringe or violate, or constitute aninfringement or misappropriation of, any United States patent of which theexecutive officers of such Party have actual knowledge, copyright, trademark,trade secret, rights of publicity or privacy or other proprietary rights of theother Party or any third party; and (iv) represents and warrants to the otherParty that the execution and performance of this Agreement does not interferewith any third party rights arising under any of the representing Party’sagreements.

 

TWC DOES NOT WARRANT THAT THE TWC HSS OR EARTHLINK HIGHSPEED SERVICEWILL BE PROVIDED OR DELIVERED ERROR-FREE OR WITHOUT INTERRUPTION TO EARTHLINK(IN THE CASE OF TWC HSS) OR THE SERVICE SUBSCRIBERS. EARTHLINK DOES NOT WARRANTTHAT THE EARTHLINK HIGHSPEED SERVICE WILL BE PROVIDED OR DELIVERED ERROR-FREEOR WITHOUT INTERRUPTION TO TWC OR THE SERVICE SUBSCRIBERS. EXCEPT AS PROVIDEDIN THIS SECTION, THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES, AND EACHPARTY EXPRESSLY DISCLAIMS ANY OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDINGTHE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULARPURPOSE.

 

**5.****                         CONFIDENTIALITY.**

 

Each Party acknowledges that Confidential Information may be disclosedto the other Party during the course of the Agreement. Each Party agrees thatit will take reasonable steps, at least substantially equivalent to the stepsit takes to protect its own proprietary information, during the term of theAgreement, and for a period of three years following expiration or terminationof the Agreement, to prevent the duplication or disclosure of ConfidentialInformation of the other Party, other than by or to its employees or agents whomust have access to such Confidential Information to perform such Party’sobligations hereunder, who will each agree to comply with this section.Notwithstanding Section 3.2 of this Exhibit C or the foregoing,either Party may issue a Press Release or disclosure containing ConfidentialInformation without the consent of the other Party, to the extent suchdisclosure is required by

 

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law, rule, regulation orgovernment or court order. In such event, the disclosing Party will to theextent possible except as made impossible by such law, rule, regulation orgovernment or court order, provide at least five (5) business days priorwritten notice of such proposed disclosure to the other Party. Further, in theevent such disclosure is required of either Party under applicable laws, rules,regulations, or government or court order such Party will (i) redactmutually agreed-upon portions of this Agreement to the fullest extent permittedunder applicable laws, rules, regulations or government or court order and (ii) submita request to the applicable governing body that such portions and otherprovisions of this Agreement be held in the strictest confidence to the fullestextent permitted under such applicable laws, rules, regulations or governmentor court order. Nothing in this Section will be construed as arepresentation or agreement to restrict reassignment of either Party’semployees, or in any manner to affect or limit either Party’s present andfuture business activities of any nature, including business activities, whichcould be competitive with the disclosing party. Nothing herein shall prohibitthe disclosing party from pursuing a transaction similar to the onecontemplated herein independently or with any other third party or parties.

 

**6.****                         INDEMNIFICATIONOBLIGATIONS.**

 

**6.1      Indemnificationof TWC.**EarthLinkagrees to defend, indemnify and hold TWC and the officers, directors, agents,Affiliates, distributors, franchisees and employees of TWC harmless from andagainst any and all Losses arising from any Third Party Claim based on (a) abreach of any EarthLink obligations, representations or warranties under theAgreement; (b) the death or bodily injury of any person, or the damage,loss or destruction of any real or personal property, caused by the conduct ofEarthLink, any EarthLink Affiliate, or any officer, director, agent,subcontractor, distributor, franchisee or employee of any of such entities; or (c) anyclaims that the EarthLink Content or Third Party EarthLink Content, each to theextent such content is distributed as part of the EarthLink High-Speed Service,(i) violates any applicable law or regulation, (ii) infringes orviolates any copyright, trademark, U.S. patent, rights of publicity or privacy,moral rights or any other third party proprietary right, or (iii) defames,libels or otherwise casts in false light any third party; provided however thatEarthLink will have no obligation hereunder to the extent such Third PartyClaim relates in whole or in part to actions of TWC in violation of thisAgreement or any subsequent agreement or procedures agreed to between theParties.

 

**6.2      Indemnificationof EarthLink.**TWCagrees to defend, indemnify and hold EarthLink and the officers, directors,agents, Affiliates, distributors, franchisees and employees of EarthLinkharmless from and against any and all Losses arising from any Third Party Claimbased on (a) a breach of any TWC obligations, representations orwarranties under the Agreement; (b) the death or bodily injury of anyperson, or the damage, loss or destruction of any real or personal property,caused by the conduct of TWC, any TWC Affiliate, or any officer, director,agent, subcontractor, distributor, franchisee or employee of any of suchentities; or (c) any claims that the TWC Content or Third Party TWCContent, each to the extent such content is distributed as part of the TWCSite, (i) violates any applicable law or regulation, (ii) infringesor violates any copyright, trademark, U.S. patent, rights of publicity orprivacy, moral rights or any other third party proprietary right, or (iii) defames,libels or otherwise casts in false light any

 

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third party; providedhowever that TWC will have no obligation hereunder to the extent such ThirdParty Claim relates in whole or in part to actions of EarthLink in violation ofthis Agreement or any subsequent agreement or procedures agreed to between theParties.

 

**6.3      IndemnificationProcedure.**If aParty entitled to indemnification hereunder (the “Indemnified Party”) becomesaware of any matter as to which it believes it is entitled to indemnificationhereunder involving any Third Party Claim, the Indemnified Party shall give theother Party (the “Indemnifying Party”) prompt written notice of such Action.Such notice shall (i) provide the basis on which indemnification is beingasserted and (ii) be accompanied by copies of all relevant pleadings,demands, and other papers related to the Action and in the possession of theIndemnified Party. The Indemnifying Party shall have the right to assume thedefense of the Action, and in the event the Indemnifying Party assumes suchdefense, the Indemnified Party shall cooperate, at the expense of theIndemnifying Party, with the Indemnifying Party and its counsel in the defense,and the Indemnified Party shall have the right to participate fully, at its ownexpense, in the defense of such Action. The Indemnifying Party shall have theright to compromise or settle any Action; provided that the settlement orcompromise includes an unconditional release of each Indemnified Party from allLosses arising out of the Action, and provided further that any compromise orsettlement involving anything other than monetary damages shall require theconsent of the other Party.

 

**7.****                         ACKNOWLEDGMENT.**

 

EarthLink and TWC each acknowledges that the provisions of theagreement were negotiated in an arm’s length transaction and with theassistance of counsel. The provisions of this Section 7 will beenforceable independent of and severable from any other enforceable orunenforceable provision of the agreement.

 

**8.****                         AUDITRIGHTS.**

 

Each Party shall maintain complete, clear and accurate records of allexpenses, revenues, fees, transactions and related documentation (includingagreements) in connection with the performance of the Agreement (“Records”).All such Records shall be maintained for a minimum of five (5) yearsfollowing termination of the Agreement. For the sole purpose of ensuringcompliance with the Agreement, each Party shall have the right, at its expense,to direct an independent certified public accounting firm subject to strictconfidentiality restrictions to conduct a reasonable inspection of portions ofthe relevant Records of the other Party. Any such audit may be conducted aftertwenty (20) business days prior written notice, subject to the following: (a) suchaudits shall not be made more frequently than once every twelve months (unlessthe results of the audit are such that the audited Party is required to bearthe expenses thereof as provided below, in which event another audit may beheld after six months), (b) no such audit of EarthLink shall occur duringthe period beginning on January 1 and ending on April 1 (or, if thefiscal year of EarthLink changes, the first three months of such fiscal year)and (c) no such audit of TWC shall occur during the period beginning of January 1and ending on April 1 (or if the fiscal year of TWC changes, the firstthree months of such fiscal year). Each audit shall be at the expense of theParty conducting the examination, unless the examination results show that 90%or less of fees owing for the examined period were actually paid or

 

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credited to the otherParty, or netted against amounts owed by such other Party, in which event theParty being audited shall bear all expenses of the examination.

 

**9.****                         FORCEMAJEURE.**

 

Neither Party will be liable for, or be considered in breach of or defaultunder the Agreement on account of, any delay or failure to perform as requiredby the Agreement as a result of strike, fire, explosion, flood, storm, materialshortages, riot, insurrection, governmental acts, labor conditions, acts ofGod, war, earthquake or any other cause which is beyond the reasonable controlof such Party; provided, however, that the non-performing Party givesreasonably prompt notice under the circumstances of such condition(s) tothe other Party.

 

**10.****                  INDEPENDENTCONTRACTORS.**

 

The Parties to the Agreement are independent contractors. Neither Partyis an agent, representative or partner of the other Party. The Agreement shallnot create for a Party or grant a Party any right, power or authority to enterinto any agreement for or on behalf of, or incur any obligation or liabilityof, or to otherwise bind, the other Party. The Agreement will not beinterpreted or construed to create an association, agency, joint venture orpartnership between the Parties or to impose any liability attributable to sucha relationship upon either Party.

 

**11.****                  LIMITATION OFLIABILITY.**

 

**11.1****          ****Limitation for ServiceOutages****.**Each Party’sliability for monetary damages for service outages shall be limited to theamounts set forth in Section 2.4 of the Agreement.

 

**11.2****          ****Limitation on OtherLiability****.**SUBJECT TO SECTION 11.3OF THIS EXHIBIT C, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FORINDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THEPARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM ORRELATING TO THIS AGREEMENT, INCLUDING LOSS OF REVENUE OR ANTICIPATED PROFITS ORLOST BUSINESS.

 

**11.3****          ****Exclusions****.**The limitations set forth in Section 11.2of this Exhibit C shall not apply with respect to: (a) damages occasionedby a Party’s breach of its obligations described in Sections 1 and 5 of this Exhibit C,or (b) claims subject to indemnification pursuant to this Agreement.

 

**12.****                  SOLICITATION/MEMBERINFORMATION.**

 

**12.1****          ****Solicitation****.**During the term of the Agreement, TWC willnot solicit Service Subscribers on behalf of another Online Provider; *provided*that the foregoing will notrestrict TWC from engaging in any solicitation or marketing activities that arenot specifically targeted to Service Subscribers.

 

**12.2****          ****Collection, Use andDisclosure of Service Subscriber Information****.**TWC and****EarthLinkshall each ensure that its collection, use and disclosure of personallyidentifiable

 

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information obtained fromService Subscribers under this Agreement (“Service Subscriber Information”)complies with (i) all applicable laws and regulations and, subject to theforegoing (ii) each Party’s standard privacy policies. Without limitingthe generality of the foregoing neither party shall: (i) subject toexceptions specified in applicable privacy policies and with respect to whichnecessary consents and waivers shall have been obtained, disclose personallyidentifiable Service Subscriber information to any third party; (ii) duringthe Term, except as may be required by law or legal process, disclose to anythird party Service Subscriber information in a manner that identifies suchService Subscriber as an end user of the EarthLink High-Speed Service, or (iii) subjectto exceptions specified in its published privacy policy or with respect towhich necessary consents and waivers will have been obtained in the subscriberagreement, except as mutually agreed to by the parties, sell or distributeService Subscriber information to any third party. Subject to applicable law,each Party shall reasonably cooperate with the other Party, and respond torequests for assistance from law enforcement agencies, as necessary to protectthe integrity of the EarthLink High-Speed Service.

 

**13.****                  GENERAL.**

 

**13.1****          ****Notice****.**Any notice, approval, request, authorization,direction or other communication under this Agreement will be given in writingand will be deemed to have been delivered and given for all purposes (i) onthe delivery date if delivered by confirmed facsimile; (ii) on thedelivery date if delivered personally to the Party to whom the same isdirected; (iii) one business day after deposit with a commercial overnightcarrier, with written verification of receipt; or (iv) five business daysafter the mailing date, if sent by U.S. mail, return receipt requested, postageand charges prepaid, or any other means of rapid mail delivery for which areceipt is available. In the case of EarthLink, such notice will be provided toMichael C. Lunsford, Executive Vice President and President, Access and Voice,EarthLink, Inc., 1375 Peachtree Street, Atlanta, GA 30309 (fax no.404-287-0891; with a copy to General Counsel (fax no. 404-287-4905). In thecase of TWC, except as otherwise specified herein, notice will be provided tothe address for TWC set forth in the first paragraph of this Agreement, toSenior Vice President, Corporate Development (fax no. 203-328-0691); with acopy to General Counsel (fax 203-328-4094).

 

A Party may from time to time change its address or designee fornotification purposes by giving the other prior written notice of the newaddress or designee and the date upon which it will become effective.

 

**13.2****          ****No Waiver****.**The failure of either Party to insist upon orenforce strict performance by the other Party of any provision of the Agreementor to exercise any right under the Agreement will not be construed as a waiveror relinquishment to any extent of such Party’s right to assert or rely uponany such provision or right in that or any other instance; rather, the samewill be and remain in full force and effect.

 

**13.3****          ****Return of Information****.**Upon the expiration or termination of theAgreement, each Party will, upon the written request of the other Party,return, or at the option of the Party receiving the request destroy and certifyas to the destruction of, all confidential information, documents, manuals andother materials provided by the other Party.

 

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**13.4****          ****Survival****.** The following Sections of the Agreement willsurvive the completion, expiration, termination or cancellation of theAgreement: (a) in the event of a Transition Period, Section 8.6 andthe terms and conditions of the Agreement referenced therein (subject to thesurvival provisions expressly set forth in such referenced terms andconditions), (b) limitations of liability set forth herein, (c) withrespect to Exhibit C, Sections 5 and 8 each for the period specifiedtherein, and Sections 2, 6, 7, 9, 10, 11, 12.2 and 13, and (d) the definitionsset forth in Exhibit A to the extent applicable to any terms andconditions that survive pursuant to this Section. In addition, any obligationswhich expressly or by their nature are to continue after termination,cancellation or expiration of the Agreement shall survive and remain in effect.

 

**13.5****          ****Entire Agreement****.** The Agreement sets forth the entireagreement and supersedes any and all prior agreements of the Parties withrespect to the transactions set forth herein, except for any Existing BundlingAgreements, as defined in Section 5.2(b). Neither Party will be bound by,and each Party specifically objects to, any term, condition or other provisionwhich is different from or in addition to the provisions of the Agreement(whether or not it would materially alter the Agreement) and which is profferedby the other Party in any correspondence or other document, unless the Party tobe bound thereby specifically agrees to such provision in writing.

 

**13.6****          ****Amendment****.** No change, amendment or modification of anyprovision of the Agreement will be valid unless set forth in a writteninstrument signed by the Party subject to enforcement of such amendment and bya duly authorized executive officer.

 

**13.7****          ****Further Assurances****.** Each Party will take such action (including,but not limited to, the execution, acknowledgment and delivery of documents) asmay reasonably be requested by any other Party for the implementation orcontinuing performance of the Agreement.

 

**13.8****          ****Assignment****.** This Agreement shall accrue to the benefitof and be binding upon the Parties hereto and any purchaser or any successorentity into which a Party has been merged or consolidated or to which a Partyhas sold or transferred all or substantially all of its assets. Neither Partymay assign this Agreement or assign or delegate its rights or obligations underthis Agreement without the prior written consent of the other Party, whoseconsent shall not be unreasonably withheld or delayed; provided that, subjectto Section 3 of the Agreement, either Party may assign its rights andobligations under this Agreement without the approval of the other Party to anentity which acquires all or substantially all of the assets of the assigningParty by way of asset purchase, merger, stock purchase or otherwise, to anyAffiliate of the assigning Party, or to a successor in a merger or acquisitionof the assigning Party upon prior written notice to the other Party.Notwithstanding the foregoing, in the event of a Change in Control of EarthLink(as defined herein), this Agreement shall remain in full force and effect onlywith regard to persons who are Service Subscribers immediately prior to, orwithin six (6) months after, the Change in Control of EarthLink, andEarthLink shall not have the right to sell any further subscriptions to theEarthLink High-Speed Service, and TWC shall not have any obligations to anyService Subscribers who were not Service Subscribers immediately prior to, anddid not become Service Subscribers within six (6) months after, the Changein Control of EarthLink. For the purpose of this Section 13.8, thefollowing terms shall have the meanings set forth herein:

 

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(a)                      “Beneficial Ownership” means beneficialownership as that term is used in Rule 13d-3 promulgated under theSecurities Exchange Act of 1934, as amended.

 

(b)                     “Business Combination” means areorganization, merger or consolidation of EarthLink.

 

(c)                      “Change in Control of EarthLink” means theoccurrence of any of the following events:

 

(i)                         The accumulation in any number of related or unrelated transactions bya TWC Competitor of Beneficial Ownership of more than fifty percent (50%) ofthe combined voting power of EarthLink’s Voting Stock; or

 

(ii)                      Consummation of a Business Combination with a TWC Competitor.

 

(d)                     “TWC Competitor” means any ILEC or CLEC (asthose terms are defined in the Telecommunications Act of 1996), any entity withControl of a direct broadcast satellite provider that provides such services inthe United States, or any entity which derives at least forty percent (40%) ofits annual revenue or $1 billion dollars in annual revenue from wirelesshigh-speed data services for desktop or laptop personal computers.

 

(e)                      “Voting Stock” means the then outstandingsecurities of an entity entitled to vote generally in the election of membersof that entity’s Board of Directors.

 

**13.9****                      ****[Reserved.]**

 

**13.10****               ****Third Party Beneficiaries****.**Except as expressly provided in thisAgreement, no person or entity (including vendors or content suppliers) shallbe a third party beneficiary of the Agreement or have any privity of contractwith or rights or relationship with either Party as a result of the Agreement.

 

**13.11****               ****Construction; Severability****.**In the event that any provision of theAgreement conflicts with the law under which the Agreement is to be construedor if any such provision is held invalid by a court with jurisdiction over theParties to the Agreement, (i) such provision will be deemed to be restatedto reflect as nearly as possible the original intentions of the Parties inaccordance with applicable law, and (ii) the remaining terms, provisions,covenants and restrictions of the Agreement will remain in full force andeffect.

 

**13.12****               ****Injunctive Relief: Remedies****.**Each Party acknowledges a violation of thisAgreement could cause irreparable harm to the other Party for which monetarydamages may be difficult to ascertain or an inadequate remedy. Each Partytherefore agrees that the other Party will have the right, in addition to its otherrights and remedies, to seek and obtain injunctive relief for any violation ofthis Agreement. Except where otherwise specified, the rights and remediesgranted to a Party under the Agreement are cumulative and in addition to, andnot in lieu of, any other rights or remedies which the Party may possess at lawor in equity.

 

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**13.13****               ****Applicable Law****.** The Agreement will be interpreted, construedand enforced in all respects in accordance with the laws of the State of NewYork, except for its conflicts of laws principles. The sole venue for any andall actions brought by one Party against the other under or arising out of theAgreement shall be as follows: (a) all actions brought by EarthLinkagainst TWC shall be brought in the appropriate state or federal court havingjurisdiction in New York City, New York; and (b) all actions brought byTWC or a TWC Division against EarthLink shall be brought in the appropriatestate or federal court having jurisdiction in Atlanta, Georgia. The Partieshereby consent to the personal jurisdiction of such courts.

 

**13.14****               ****Export Controls****.** Both Parties will adhere to all applicablelaws, regulations and rules relating to the export of technical data andwill not export or re-export any technical data, any products received from theother Party or the direct product of such technical data to any proscribedcountry listed in such applicable laws, regulations and rules unlessproperly authorized.

 

**13.15****               ****Headings****.**The captions and headings used in theAgreement are inserted for convenience only and will not affect the meaning orinterpretation of the Agreement.

 

**13.16****               ****Counterparts****.** The Agreement may be executed incounterparts each of which will be deemed an original and all of which togetherwill constitute one and the same document.

 

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** **

**EXHIBIT D**

** **

**Marketing Earth Link High-Speed Service Service Level1 (Standard):**

** **

In each of the first two (2) twelve (12) month periods during theTerm, EarthLink shall spend $_____ million to promote the EarthLink High-SpeedService (available with TWC and Bright House Networks LLC, for avoidance ofdoubt). Out of this $_____ million, EarthLink will allocate the followingamounts for bundle marketing support in each such twelve (12) month period: $__million with TWC’s New York Division, $_____ million with Bright House Networks’Orlando Division, and $_______ with Bright House Networks’ Tampa Division. Inthe third twelve (12) month period of the Term, EarthLink shall spend $______million to promote the EarthLink High-Speed Service (available with TWC andBright House Networks LLC, for avoidance of doubt). Out of this $_____ million,EarthLink will allocate the following amounts for bundle marketing support insuch period: $__ million with TWC’s New York Division, $____ million withBright House Networks’ Orlando Division, and $______ with Bright House Networks’Tampa Division. EarthLink’s marketing efforts shall include a combination ofdirect, online, and affiliate sales marketing as EarthLink deems most efficientin its reasonable business judgment.

 

Thereafter EarthLink and TWC shall discuss appropriate marketingsupport levels of each party for the remainder of the Term.

 

**EarthLinkLite**

 

EarthLink will workcooperatively with TWC to develop a new “Lite” service offering. This offeringwill be rebranded and will be targeted at the remaining EarthLink dial-upsubscribers. As part of this effort, EarthLink shall create new directmarketing materials substantially different from and incremental to those usedfor standard EarthLink marketing to TWC markets. EarthLink will commit toappropriate media spending as it deems most efficient in its reasonablebusiness judgment (but with meaningful consultation with TWC) incremental tosupport for the EarthLink High Speed Service including, without limitation, acommitment to spend over the initial twenty-four (24) months of the Term, atotal of at least $________ in such incremental marketing expenditures.

 

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**EXHIBIT E**

** **

**EarthLink/Time Warner Cable**

** **

**Bundled Package Marketing Letter**

** **

EarthLink, Inc. (**“EarthLink”**),****at 1375 Peachtree Street, Level A, Atlanta, Georgia 30309; and the                              Division of Time Warner Cable (**“TWC”**),at                                                             [insert division address], agree asfollows with respect to the inclusion and marketing of the EarthLink High-SpeedService as part of one or more Bundled Package(s) that includes TWCproducts, features and services:

 

**Defined Terms**

** **

Capitalized terms usedherein without definition are used as defined in that certain letter betweenEarthLink and Time Warner Cable Inc., dated as of May 4, 2005 (the **“Letter”**).

 

**Bundled Packages:**

** **

Beginning on [date], TWCwill offer EarthLink as a component of each of the following bundles:

 

[Insert name of each TWCBundle and level of EarthLink service to be included]

 

**Marketing:**

** **

[EarthLink may use itsmarketing dollars to support TWC’s marketing of the Bundled Package. Thesemarketing dollars shall be used to develop co-branded, co-operativeEarthLink/TWC campaigns that drive calls to the TWC Call Centers. Thesecampaigns and the tactics used may include language indicating EarthLink’sparticipation in the TWC Bundles. Because these campaigns generate calls to theTWC Call Centers, EarthLink will support the transactional opportunities tosell EarthLink Bundled Packages. These funds will be negotiated on acampaign-by-campaign basis with individual TWC Divisions. The terms of the campaign,including marketing amounts and tactics, shall be detailed in this section ofthe applicable Marketing Letter. The relevant TWC Division and EarthLink shallagree on the nature and extent of cooperative marketing efforts as part of theagreement to include EarthLink High Speed Service in one or more bundledpackages in the TWC Division.]

 

[Insert marketingarrangements for the relevant TWC Division.]

 

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**Reporting:**

 

Each participating TWCdivision will use commercially reasonable efforts to provide Earthlink with awritten report and appropriate supporting documentation (mail receipts, mediaaffidavits, invoices, etc.) detailing how the marketing dollars referred toabove were spent within thirty days of the conclusion of the campaign.

 

EarthLink will receive,upon request, a copy of any monthly and quarterly report of total EarthLinkconnects and disconnects that are associated with the EarthLink BundledPackages. EarthLink agrees to make use of existing TWC Division reports ratherthan require standard reporting across TWC Divisions.

 

**Billing:**

** **

The TWC Divisions willcreate and maintain appropriate billing system detail to facilitate trackingfor each Bundled Package.

 

**Installation (check box as appropriate):**

** **

o   TWCwill provide free standard Installation to all subscribers responding to thePromotion.

 

o   TWCwill provide standard Installation for a one-time fee of$             toall subscribers responding to thePromotion.

 

**Allocation of Discount:**

** **

The Discount shall beallocated as set forth in the Letter.

 

**Other Terms**

** **

Other than as set forthherein during the Promotion, all terms and conditions contained in theAgreement, including without limitation those relating to confidentiality,privacy and non-exclusivity, shall remain in full force and effect.

 

**Accepted and Agreed:**

 
| EarthLink, Inc.: |   | The                |   | Division  of |
|-----------------------|--------|--------------------|--------|--------------|
|                  |   | Time  Warner Cable |
|                  |   |               |
|                  |   |               |
|                  |   |               |

 

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**EXHIBIT F**

** **

**SERVICE LEVEL 3 INCENTIVE EXAMPLES**

** **

For purposes of thisexample, Bright House Systems and all other systems are addressed collectivelyas TWC Systems. The calculations illustrated herein would be performedseparately for the group of Bright House Systems and the group of all othersystems.

 

The examples hereinassume that: (i) the Incentive Benchmark in TWC Cable Systems on theEffective Date is 550,000; (ii) the Incentive Benchmark in TWC CableSystems on the first anniversary of the Effective Date is 500,000 (i.e.,EarthLink has ceased to be eligible for the Service Level 3 Payment incentive)and (iii) the Incentive Benchmark in TWC Cable Systems on the secondanniversary of the Effective Date is 575,000 (i.e., EarthLink has again becomeeligible for the Service Level 3 Payment incentive).

 

·                             Fromthe Effective Date until the first anniversary of the Effective Date, TWC isentitled to a monthly payment of $_____ as part of the SL3 TWC Monthly Fee forthe Service Level 3 Service Subscriptions sold by EarthLink during this twelve(12) month period. Any Service Level 3 Service Subscriptions originally sold byEarthLink that terminate during this period will result in an $___ paymentreduction in the SL3 TWC Monthly Fee, as long as there are incremental $___customers attributable to this period in the rate calculation. If there are no$___ customers attributable to this period (i.e., if the number ofEarthLink-sold Service Level 3 Service Subscribers on the date of suchtermination is lower than the number of EarthLink-sold Service Level 3 ServiceSubscribers that existed on the Effective Date), the reduction would be $_____(since the terminating subscriber would be deemed to be a Service Level 3Service Subscriber existing as of the Effective Date).

 

·                             Betweenthe first and second anniversaries of the Effective Date, TWC is entitled to amonthly payment of $_____ as part of the SL3 TWC Monthly Fee for the ServiceLevel 3 Service Subscriptions sold by EarthLink during this twelve (12) monthperiod. Any Service Level 3 Service Subscriptions originally sold by EarthLinkthat terminate during this period will result in a $_____ payment reduction tothe SL3 TWC Monthly Fee, as long as there are incremental $_____ customersattributable to this period. If there are no $______ customers attributable tothis period (i.e., if the number of EarthLink-sold Service Level 3 ServiceSubscribers on the date of such termination is lower than the number ofEarthLink-sold Service Level 3 Service Subscribers that existed on the firstanniversary of the Effective Date (but higher than the number that existed onthe Effective Date)), the reduction would be $_____. Moreover, if the number ofEarthLink-sold Service Level 3 Service Subscribers on the date of suchtermination is lower than the number of EarthLink-sold Service Level 3Subscribers that existed on the Effective Date, the reduction would be $_____(since the terminating subscriber would be deemed to be a Service Level 3Service Subscriber existing as of the Effective Date).

 

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·                             Betweenthe second and third anniversaries of the Effective Date, TWC is entitled to amonthly payment of $_____ as part of the SL3 TWC Monthly Fee for the ServiceLevel 3 Service Subscriptions sold by EarthLink during this twelve (12) monthperiod. Any Service Level 3 Service Subscriptions originally sold by EarthLinkthat terminate will result in an $_____ payment reduction to the SL3 TWCMonthly Fee, as long as there incremental $_____ customers attributable to thisperiod. If there are no $_____ customers attributable to this period (i.e., ifthe number of EarthLink-sold Service Level 3 Subscribers on the date of suchtermination is lower than the number of EarthLink-sold Service Level 3 ServiceSubscribers that existed on the second anniversary of the Effective Date), thereduction will be $_____ for so long as there are $_____ customers attributableto the period between the first and second anniversaries of the Effective Date.If there are no $_____ customers attributable to the period between the firstand second anniversaries of the Effective Date (i.e., the number ofEarthLink-sold Service Level 3 Service Subscribers at the time of suchtermination is lower than the number that existed at the first anniversary ofthe Effective Date), the reduction would be $_____. As in the examples above,if the number of EarthLink-sold Service Level 3 Service Subscribers on the dateof such termination is lower than the number of EarthLink-sold Service Level 3Service Subscribers that existed on the Effective Date, the reduction would be$_____ (since the terminating subscriber would be deemed to be a Service Level3 Subscriber existing as of the Effective Date).

 

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