Exhibit 10.5


 


PORTIONS OF THIS EXHIBIT
HAVE BEEN OMITTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION 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 TWC
will  sell to EarthLink an
unbranded, “white label” version of TWC’s high speed data service (the “TWC HSS”) that EarthLink can brand, market
and resell as an EarthLink high-speed data service over TWC’s cable television
systems to consumers/residential customers pursuant to the terms and conditions
contained herein. Capitalized terms used but not otherwise defined in the main
body of this Agreement or in the other Exhibits attached to this Agreement
shall have the respective meanings set forth in Exhibit A attached hereto.
Each of the Exhibits attached hereto are hereby incorporated into the main body
of 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 terms
and conditions of this Agreement, TWC shall sell to EarthLink an unbranded, “white
label” version of the TWC HSS that EarthLink shall brand, market and resell as
an EarthLink high-speed service (the Earth Link-branded version of the TWC HSS
is referred to herein as the “EarthLink
High-Speed Service”). Other than providing the TWC HSS in accordance
with this Agreement, TWC shall have no obligations with respect to the features
or content of the EarthLink High-Speed Service or for the provision of
features, applications, products and services included therein.


 


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


 

















 


doubt, by way of
co-location) any equipment, technology, hardware or software at TWC’s premises
or within the System Facilities. As between EarthLink and TWC, TWC shall retain
full ownership and operating control of, and will be fully responsible for
operating and maintaining, the System Facilities. TWC shall have no
responsibility for provision of facilities to EarthLink other than as expressly
set forth herein.


 


(b)       EarthLink’s Obligations.


 


(i)        Subject to and in accordance with the terms
and conditions of this Agreement, EarthLink shall, at its own expense and in
its sole discretion, promote, advertise, offer, market, and sell the EarthLink
High-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 EarthLink
High-Speed Service and are not included in the TWC HSS as provided by TWC under
this Agreement. Subject to Section 1.4(b), EarthLink shall provide Service
Subscribers with access to the full offering of all features and functionality
made available to residential subscribers through any other EarthLink-branded
high-speed Internet access service, including but, not limited to, all such
associated links, content, services, features, functionality, issuance and use
of EarthLink email addresses and features related thereto available to
residential customers in any other EarthLink branded high-speed Internet access
service (other than any EarthLink-branded service offered as a municipal “wi-fi”
service offering (i.e.,  a
local wireless service offered in a specific municipality)). EarthLink also
shall, at its own expense, be responsible for providing, managing and operating
all narrowband dial-up access services that EarthLink may desire, in its
discretion, 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, the
EarthLink Software or the Documentation, EarthLink shall provide any software
upgrades by electronic download or compact disc, and continue to reasonably
support the immediately preceding version of the EarthLink High-Speed Service
for a period of at least twelve (12) months from the general commercial release
of the new version thereof.


 


(iii)      Subject to and in accordance with the terms and conditions of this
Agreement, EarthLink hereby grants to TWC during the Term the right and license
to the extent necessary to promote, advertise, offer, market, distribute,
transmit, deliver, reproduce, perform, display and otherwise use the EarthLink
High-Speed Service in order to provide the same to Service Subscribers in the
Operating Areas. Such license shall include: (A) all rights necessary for
TWC to exercise its rights and perform its obligations hereunder in connection
with the EarthLink High-Speed Service, including with respect to interfaces,
tools, content and software therein, and (B) the right to reproduce and
distribute, directly and through third parties, the EarthLink Software and Documentation
in connection with the offering of the EarthLink High-Speed Service. Without
limitation of the foregoing, but subject to Section 2.1 (Retail Price),
TWC shall have the right to


 


2

















 


market the Premium
EarthLink High-Speed Service to EarthLink customers at pricing to be
established by TWC.


 


(iv)      Subject to and in accordance with the terms and conditions of this
Agreement, EarthLink shall not: (A) conduct or knowingly permit any
illegal activity using the EarthLink High-Speed Services or the System
Facilities; (B) except as required by TWC or Bright House Networks LLC
pursuant to Section 5.3 of this Agreement or otherwise solely in
connection with account administration communications (e.g., messages without
promotional content), engage in or knowingly permit use of the System
Facilities to engage in mass distribution of unsolicited messages, use of
e-mail to initiate an attempt to gain unauthorized access to the computer
system of any person or entity, or unauthorized entry into computer or other
systems; (C) interfere with the operation of the System Facilities or a
third party’s use of any services (not including actions taken in connection
with the administration of any Service Subscriber accounts) provided through
the System Facilities; or (D) subject TWC’s or its subcontractors’
personnel to hazardous conditions. In any instance in which TWC believes in
good faith that any of the provisions in this Section 1.1(b)(iv) have
been breached, subject to the following sentence and without limitation of any
other rights or remedies, TWC may immediately restrict, suspend or discontinue
providing the EarthLink High-Speed Service. In the event of EarthLink’s breach
of this Section 1.1(b)(iv), and except in a circumstance where immediate
action is necessary to prevent or minimize resulting damage, actual or
reasonably anticipated liability to TWC, or material interference with the TWC
HSS or the System Facilities, prior to any such restriction, suspension or discontinuance,
TWC shall provide prior notice to EarthLink, and, if curable, EarthLink will
have ten (10) business days to cure such breach. TWC will not be liable to
EarthLink or any third party for such restriction, suspension or
discontinuance. In addition, EarthLink’s breach of any of the provisions of
this Section 1.1(b)(iv) (except for breaches of this Section 1.1(b)(iv) due
to the illegal activities of users of the Internet or EarthLink’s services,
without specific misconduct by or on behalf of EarthLink) and failure to cure
any such breach within the time period specified above, will constitute a
material breach of this Agreement. For the avoidance of doubt, each Party shall
be responsible for processing and taking all actions required by law in response
to any notifications it receives pursuant to the Digital Millennium Copyright
Act, 17 U.S.C. § 512.


 


1.2                 Network
Architecture.


 


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


 


3

















 


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


 


1.3                 EarthLink
High-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’s
Service Level 1 and may, but shall not be required to, offer the EarthLink
High-Speed Service utilizing Service Level 2 and/or Service Level 3. Each tier
is keyed to a maximum throughput between each Device and the Internet, and will
provide a (1) maximum throughput capacity for a Service Subscriber (e.g., the maximum instantaneous IP data
throughput available to a Service Subscriber), and (2) maximum byte
consumption by such Service Subscriber per month.


 


(a)       “Service Level 1” currently provides (i) maximum
throughput 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 no
more than ____ Gb downstream and ____ Gb upstream.


 


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


 


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


 


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


 


(i)        establish additional tiers other than Service
Level 1, Service Level 2 or Service Level 3 or upgrades, premiums, or upsells
to existing tiers utilizing any features or conditions, including but not
limited to throughput capacity or consumption, it deems appropriate (such
Service Levels and any additional tiers upgrades, premiums, or upsells
established by TWC collectively referred to as the “Service Levels”);


 


(ii)       modify the features and conditions, including but not limited to
throughput 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, requirements
regarding the terms on which any Online Provider, including EarthLink, may
offer any Service Level(s) (e.g., limiting access to a given Service Level
to promotional uses for a limited duration).


 


4

















 


TWC shall take
commercially reasonable steps to provide EarthLink with at least 60 days’
written notice prior to instituting or terminating any Service Level(s) in
any TWC Division(s); provided that (x) EarthLink acknowledges that, from
time to time, competitive pressures may require that TWC promptly institute or
terminate Service Level(s) and that, under such circumstances, TWC will
satisfy its notice obligations by providing EarthLink with the best notice
practicable under the circumstances; and (y) TWC acknowledges that any
changes negatively impacting customers (e.g., decreased speed or lower
consumption caps) may require EarthLink to provide its customers with at least
30 days’ written notice. In the event TWC terminates any Service Level, TWC and
EarthLink agree to work in good faith to create and implement a transition plan
for those Service Subscribers impacted by such termination.


 


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


 


(f)        TWC reserves the right, in its sole
discretion to meter or otherwise technologically monitor Service Subscriber
consumption levels and usage volume and patterns and to utilize any means at
its disposal to ensure that Service Subscribers do not violate the terms of
their Service Level, TWC’s acceptable use policy (AUP) or subscriber agreement,
including any limits on bandwidth consumption or usage. Such means may include
the imposition of rate shaping or other technological means of ensuring
compliance with Service Level terms, additional fees for excess bandwidth usage
to Service Subscribers or requiring subscription to a higher Service Level as a
condition of continuing to provide service to a Service Subscriber who violates
TWC’s terms. TWC shall exercise its reasonable business judgment in enforcing
its rights using these means, and will not make decisions based upon whether a
particular high speed service customer is a Service Subscriber or a customer of
another Online Provider or Road Runner.


 


1.4                 General.


 


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


 


5

















 


(b)       Subject to any other express limitations
herein, EarthLink may offer any IP data-based services on or through the
EarthLink High-Speed Service as EarthLink determines from time to time in its
sole discretion, including those that utilize a television Device; and may
provide any equipment used to deliver such services, and any IP value added
services (including streaming audio and video applications and video
programming that is commonly available for purchase or free viewing on the Internet
and any content, applications, features, products and services offered through
the EarthLink narrowband services to Personal Computers), and may enter into
relationships to bundle and package specialty viewing content over high-speed
Internet service offered by EarthLink (i.e., such as EarthLink’s current
partnership with Synacor for sports viewing or a future partnership with a
provider such as Akimbo). Any permitted services will be compatible with the
network architecture determined pursuant to Section 1.2. Any such content,
applications, features, functionality, products and services included in the
EarthLink High-Speed Service when sold by EarthLink will also be included in
such EarthLink High-Speed Service when sold by TWC.


 


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


 


(c)       For purposes of clarification, TWC shall have
no quality of service obligations with respect to video, audio or other streamed
media of any kind provided by EarthLink in connection with the EarthLink
High-Speed Service.


 


(d)       Unless the Parties shall otherwise agree in
writing, the EarthLink High-Speed Service shall be designed, intended and
marketed solely as a consumer service offering to residential locations, which
may include marketing the consumer use of the EarthLink High-Speed Service for
telecommuting and “work at home” purposes.


 


1.5                 IP Addresses.


 


Consistent with DOCSIS 1.0, TWC will supply the public IP address or
addresses as reasonably necessary for the management of the cable modem device
in the Service Subscriber’s home. To the extent any TWC Division provides
multiple public IP addresses for residential high-speed service customers, TWC
shall consider supplying multiple public IP addresses for residential Service
Subscribers and will make such determination in good faith without
consideration of whether a particular high-speed service customer is a Service


 


6

















 


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


 


1.6                 IP Telephony.


 


EarthLink will not
provide any IP telephony that could reasonably cause or causes TWC to become
subject to regulation as a provider of a telecommunications service by any
state public utilities commission or the FCC or other governmental or judicial
authority or agency. TWC shall not be required to provide any quality of
service commitments for any IP telephony. If TWC incurs a tax or fee as a
result of any provision of IP telephony by EarthLink on the EarthLink
High-Speed Service, EarthLink, at its sole discretion, will either (a) cease
offering IP telephony on the EarthLink High-Speed Service to the extent
necessary to avoid such tax or fee, or (b) pay its share (pro-rata with
other Online Providers offering IP telephony services) of such tax or fee
assessed 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 Basic
EarthLink 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, including
the right to establish different prices to Service Subscribers in different TWC
Cable Systems. EarthLink shall have the right to set the retail price for any
Premium EarthLink High-Speed Service in connection with its sales thereof and
in 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 of
whether the same are charged to Service Subscribers.


 


2.2                 Monthly Fees.


 


(a)       Service Level 1.


 


For Service Level 1 Service Subscriptions (other than for Additional
EarthLink 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”). Such
amount will be paid to TWC by EarthLink for Service Subscribers billed by
EarthLink (or Service Subscribers billed by TWC to the extent the Retail Price
set by EarthLink is less than the SL1 TWC Monthly Fee) or retained by TWC for
Service 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, per
Service Level 1 Service Subscription (the “SL1
EarthLink Monthly Fee”). Such


 


7

















 


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


 


The “Excess Amount” shall
be the amount by which the Retail Price for the EarthLink High-Speed Service
exceeds _____________ dollars ($___).


 


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


 


(b)       Service Level 2.


 


For Service Level 2 Service Subscriptions (other than for Additional
EarthLink 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 Level
2 Service Subscription (the “SL2 TWC Monthly
Fee”). Such amount will be paid to TWC by EarthLink for Service
Subscribers billed by EarthLink (or Service Subscribers billed by TWC to the
extent 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)       Where
the 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 “SL2
EarthLink Monthly Fee”). Such amount will be paid to EarthLink by
TWC as such Service Subscribers will be billed by TWC.


 


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


 


(c)       Service Level 3.


 


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


 


(i)        Where the Retail Price is set by EarthLink,
TWC shall be entitled to the appropriate Service Level 3 Payment (as determined
in accordance with Section 2.2(c)(i)(A) — (C) below), plus _____________
percent of the SL3 Excess Amount (as defined below), if any, per Service Level
3 Service Subscription (the “SL3 TWC Monthly
Fee”). Such amount will be paid to TWC by EarthLink for Service
Subscribers billed by EarthLink (or Service Subscribers billed by TWC to the
extent 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.


 


8

















 


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


 


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


 


(1)        calculating the average monthly level of
then-current Service Level 1 Service Subscribers originally sold by EarthLink
and the average monthly level of then-current Service Level 2 Service
Subscribers originally sold by EarthLink for each of the 12 calendar months
immediately prior to the month in which the relevant Incentive Benchmark Date
occurs (the average level for each such month to be determined by adding the
number of respective then-current Service Level 1 Service Subscribers sold by
EarthLink and then-current Service Level 2 Service Subscribers sold by
EarthLink on the first day of each month to the number of such Service
Subscribers on the last day of such month and dividing by two (2)) and


 


(2)        adding the 12 monthly averages and dividing
by 12.


 


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


 


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


 


9
















 


of calculation of the SL3
TWC Monthly Fee as if it was the most recently sold Service Level 3 Service
Subscription, as long as there are incremental customers attributable to that
particular period in the rate calculation. If there are no customers attributable
to this period (i.e., if the number of EarthLink-sold Service Level 3 Service
Subscribers on the date of such termination is lower than the number of
EarthLink-sold Service Level 3 Service Subscribers that existed as of the most
recent Incentive Benchmark Date), the reduction would be of the amount payable
by EarthLink in the preceding period.


 


(D)       The provisions of Section 2.2(c)(i)(A)-(C) herein are
illustrated 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 3
Subscription (the “SL3 EarthLink Monthly Fee”).
Such amount will be paid to EarthLink by TWC as such Service Subscribers will
be billed by TWC.


 


The “SL3 Excess Amount” shall be the amount by
which 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 Service
Subscriber as set forth below:


 


(i)        For the period commencing upon the Effective
Date and ending on the first anniversary thereof (i.e., the first Annual
Benchmark Date after the Effective Date), the Transit Surcharge shall be _______
dollar and ________ cents ($_____) per the average number of Service
Subscribers during the month (the “Base
Transit Charge”).


 


(ii)       TWC shall calculate the average transit layer
utilization in kilobits per second (“kbps”) per
Service Subscriber for the EarthLink High-Speed Service for the thirty (30) day
period preceding each Annual Benchmark Date after the Effective Date (the
calculation of average utilization for such an Annual Benchmark Date referred
to herein as an “Annual Benchmark Date
Average”). In the event any Annual Benchmark Date Average is equal
to 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 period
during the Term shall be the Base Transit Charge as increased by $.055 per
Service Subscriber for each kbps that the Benchmark Date Average exceeds 21.5
kbps.


 


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


 


10

















 


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


 


(v)       Notwithstanding the foregoing, to the extent an Annual Benchmark Date
Average exceeds 54 kbps, EarthLink shall have the right to notify TWC in
writing within fifteen (15) days after the Annual Benchmark Date to request
that TWC waive any incremental monthly Transit Surcharge due hereunder for that
portion of the Benchmark Date Average in excess of 54 kbps. To the extent TWC
does not notify EarthLink in writing of its agreement to such a waiver within
thirty (30) days of EarthLink’s request, EarthLink shall have fifteen (15) days
thereafter to terminate this Agreement pursuant to Section 8.5 herein upon
written notice to TWC.


 


(e)                      Calculation of Fees: Prorated Fees.


 


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


 


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


 


(f)                        Subscription Termination Notice.


 


Each of the Parties will promptly notify the
other in the event of a termination of a Service Subscriber’s Service
Subscription to the EarthLink High-Speed Service (which notification shall in
no event be later than 24 hours after such termination), regardless of whether
such termination is generated by the Service Subscriber, by EarthLink or by
TWC. The Party that bills a Service Subscriber for the EarthLink High-Speed
Service shall have the sole right to terminate, in accordance with its own
applicable policies and procedures, the EarthLink High-Speed Service Service
Subscription of a Service Subscriber for nonpayment by such Service Subscriber
of subscription fees for such EarthLink High-Speed Service. Consistent with
past practices, the parties shall use commercially reasonable efforts to
develop and implement a “saves” program to retain Service Subscribers who
indicate they wish to terminate the EarthLink High-Speed Service. In the case
of TWC, any such program must be approved by a senior vice president (or above)
based in TWC’s corporate headquarters in Stamford, Connecticut. Any such
program shall contemplate that, if TWC “saves” a Service Subscriber using an
EarthLink-approved saves offer, such Service Subscriber shall, throughout the
relevant save promotional period, be treated for billing and payment purposes
as if EarthLink set the Retail Price for such Service Subscriber. For avoidance
of doubt, nothing contained herein shall require TWC to attempt to “save” any
Service Subscriber or transfer calls from terminating Service Subscribers to
EarthLink; provided that TWC shall in good faith attempt through its normal
customer service operations to “save” Service Subscribers to the EarthLink
High-Speed Service who indicate they wish to terminate through appropriate
incentives agreed upon between EarthLink and TWC.


 


11

















 


2.3                 Sharing of
Additional Revenues.


 


In addition to all other amounts payable under this Agreement,
EarthLink shall pay TWC, monthly, an amount equal to ________ percent (___%) of
Additional EarthLink Revenues in excess of _______ dollars ($__) per Service
Subscriber per month (with Service Subscribers determined by averaging Service
Subscribers 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 credit
or refund to Service Subscriber(s) in respect of any period(s) of any
unscheduled 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 solely
the result of the billing Party’s failure to perform its responsibilities
hereunder, or (B) the aggregate period of any such outages occurring in
any calendar month, is less than four (4) hours, the amount payable to the
other Party shall be determined as though no such credits shall have been
issued.


 


(ii)       To the extent such outage is solely the result of the other Party’s
failure 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) the
amount of such credit actually issued or (y) the amount required by law,
regulation, any LFA franchise agreement, any subscriber agreement or other
agreement of the Parties.


 


(iii)      To the extent that the corresponding service outage resulted from
neither or both Parties’ failure to perform its respective responsibilities
hereunder, subject to Section 2.4(a)(v), the billing Party may reduce the
fees payable to the other Party by fifty percent (50%) of the lower of (x) the
amount of such credit actually issued or (y) the amount required by law,
regulation, any LFA franchise agreement, any subscriber agreement or other
agreement of the Parties.


 


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


 


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


 


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


 


12

















 


If a Service Subscriber fails to pay any invoiced amount, the billing
Party shall be solely responsible for collection thereof, and shall be obligated
to pay the other Party the fees with respect to such Service Subscriber without
regard to such default; provided, however,  if
such other Party was the selling Party, and such sale was in violation of
Service Subscriber qualification procedures or criteria of the billing Party
(as each Party shall provide to the other from time to time), the other Party
shall bear sole responsibility for the default, and the billing Party may
deduct the applicable amount thereof from amounts otherwise payable to such other
Party.


 


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 days
following the end of any month, an amount equal to the monthly fees to which
EarthLink is entitled pursuant to Section 2.2 (adjusted for any applicable
credits), for each Service Subscriber billed by TWC during such preceding
month.


 


(b)                     EarthLink shall pay TWC no later than 30 days
following the end of any month an amount equal to: (i) the monthly fees to
which TWC is entitled pursuant to Section 2.2 (adjusted for any applicable
credits), for each Service Subscriber billed by EarthLink during such preceding
month; plus (ii) the Revenue Share payable to TWC in respect of such
preceding month pursuant to Section 2.3; plus (iii) other amounts
payable 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 Service
Subscriber in accordance with Section 7.3 shall be responsible for billing
and collecting from the Service Subscriber and remitting to the appropriate
taxing authorities all applicable sales, use, excise, import or export, value added
or similar taxes and fees arising by law from the purchase by such Service
Subscriber of the EarthLink High-Speed Service.


 


2.7                  Franchise Fees and Other Obligations
to Local Franchising Authorities


 


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


 


13

















 


EarthLink’s receipt of
notice regarding such requirement, elect by written notice to TWC to terminate
this Agreement with respect to such TWC Division.


 


(b)                     In the event that EarthLink elects to provide
notice of termination pursuant to Section 2.7(a), then during the
Transition Period for such TWC Division, EarthLink shall pay to TWC and/or
charge applicable Service Subscribers for, such fees, and comply with such LFA
obligations, each as they arise.


 


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


 


(d)                     Without limiting the generality of the
foregoing provisions of this Section 2.7, (i) TWC will provide
EarthLink with reasonable advance notice of all obligations with which
EarthLink is required to comply, and of changes in such obligations from time
to time; and (ii) TWC and EarthLink will cooperate with each other on
procedures regarding matters of compliance with LFA-imposed fees or other
obligations.


 


3.                         ADDITION
OR REMOVAL OF TWC CABLE SYSTEMS


 


(a)                     Transfer of
TWC Systems.


 


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


 


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


 


14

















 


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


 


(iii)      With respect to any TWC Cable Systems divested in association with the
TKCCP Divestiture (as defined below), EarthLink acknowledges that TWC has
complied with its obligations under Section 3.4(a)(i) of the Current
Carriage Agreement and EarthLink hereby waives any and all payments or
compensation provided for pursuant to Section 3.4(a)(ii) of the
Current Carriage Agreement. As used herein, the term “TKCCP Divestiture” shall
mean TWC’s divestiture of certain interests in an entity known as “Texas and
Kansas City Cable Partners, L.P.”


 


(iv)      Notwithstanding anything to the contrary contained herein, if all or
substantially all of the TWC Divisions are sold, exchanged or otherwise
transferred to an entity, then TWC shall cause this Agreement to be assumed by
the transferee.


 


(b)                    Acquisition of TWC System.


 


(i)        In connection with an acquisition, whether by
purchase, exchange or otherwise, by TWC, of a new cable system that following
such acquisition would constitute a TWC Cable System under this Agreement and
subject to any pre-existing obligations or contractual restrictions associated
with 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 this
Agreement if such TWC Cable System will operate in an operating area
Immediately Adjacent to an Operating Area of a then-existing TWC Cable System
carrying the EarthLink High-Speed Service; (y) shall add such new TWC
Cable System to the scope of this Agreement if such TWC Cable System has more
than 300,000 residential homes passed (as that term is commonly used in the
television cable industry) in its Operating Area, determined in accordance with
TWC’s standard internal policies and (z) may mutually agree, but shall not
be required, to add any other such TWC Cable System to the scope of this
Agreement.


 


(ii)       TWC will notify EarthLink promptly following execution and delivery of
a binding agreement for the acquisition of a TWC Cable System that is to be
added 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 as
promptly as practicable following the date on which such TWC Cable System’s
System Facilities, and administrative and billing systems, are, in TWC’s sole
discretion, capable of handling without extraordinary effort the provision of
multiple Online Providers’ services. If a TWC Cable System is added to the
scope of this Agreement, EarthLink will be subject to its obligations under Section 1.3
with regard to the TWC Cable System.


 


15

















 


(c)       The
cable systems to be acquired by TWC upon the consummation of the transaction(s) pending
as of the Execution Date between and among TWC, Comcast Corporation and
Adelphia Communications Corporation (the “Pending
Transactions”) shall constitute TWC Cable Systems under this
Agreement including (i) such cable systems that are located within the Los
Angeles, California; Cleveland, Ohio; Buffalo, New York; or Dallas, Texas DMAs
(provided that EarthLink shall offer the EarthLink High-Speed Service on all
TWC Cable Systems in each such DMA); and (ii) such cable systems on which
EarthLink high-speed service is being provided immediately prior to the
consummation of the Pending Transactions. In each TWC Cable System to be added
to the scope of this Agreement pursuant to the foregoing sentence, TWC shall
make the TWC HSS available to EarthLink for branding and resale as promptly as
practicable, but in any event within ninety (90) days, following the date on
which such TWC Cable System’s System Facilities, and administrative and billing
systems, are, in TWC’s sole discretion, capable of handling without
extraordinary effort the provision of multiple Online Providers’ services.


 


(d)       TWC
may terminate its obligations hereunder with respect to any Operating Area, by
notice in writing to EarthLink, if TWC ceases to provide its cable television
services in such Operating Area.


 


4.                         PROMOTION
FOR TWC SITE


 


4.1                 Link To TWC Site.


 


EarthLink will create, host, operate and maintain a Service Subscriber
customizable “Personal Start Page” with
TWC 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 the
EarthLink High-Speed Service (or, subject to mutual agreement, another
reference 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 the
EarthLink Total Access Software through which a Service Subscriber accesses the
EarthLink High-Speed Service.


 


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


 


5.                         MARKETING
AND BUNDLING.


 


5.1                 Marketing of the
EarthLink High-Speed Service.


 


(a)       EarthLink
shall advertise, promote and market the EarthLink High-Speed Service in all Operating
Areas in which EarthLink High-Speed Service is made available via TWC Cable
Systems.


 


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


 


16

















 


(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 seek
TWC’s (and the TWC Divisions’) assistance in promoting and marketing the
EarthLink High-Speed Service. TWC shall use reasonable efforts to provide
contact information for appropriate TWC Division personnel, and shall send a
communication to such personnel to introduce key EarthLink personnel. TWC and
the TWC Divisions will reasonably consider EarthLink’s requests for promotion
and marketing assistance in its reasonable business judgment.


 


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


 


5.2                 Bundling.


 


(a)                      Subject to Section 5.3, TWC may bundle
any Premium EarthLink High-Speed Service with the Basic EarthLink High-Speed
Service (it being understood that TWC would be acting as EarthLink’s agent for
any such offering of any Premium EarthLink High-Speed Service), provided that
with respect to any individual Premium EarthLink High-Speed Service, bundling
and/or order entry is practical and technically feasible; that EarthLink’s
systems support such bundling and order entry and, if billing rights are
requested, third-party billing of the bundled offerings; and that EarthLink’s
inability to support bundling for TWC shall not restrict EarthLink from
offering and selling the bundle itself including under the Agency Agreement
between TWC and EarthLink dated as of the Execution Date.


 


(b)                     TWC may, on a TWC Division level in its sole
discretion, bundle the EarthLink High-Speed Service with other TWC products or
services, including but not limited any or all of TWC’s voice, data and video
services (“Bundled Packages”).  If EarthLink and a TWC Division agree that
such TWC Division will include any Service Level of the EarthLink High-Speed
Service in a Bundled Package (an “EarthLink
Bundled Package”), EarthLink and such TWC Division will enter into
an agreement (the “Marketing Letter”), in
the form set forth as Exhibit E, to memorialize the arrangement and
related marketing obligations. Notwithstanding anything contained in any
Marketing Letter executed after the date hereof, the following terms and
conditions shall apply to each EarthLink Bundled Package offered by a TWC
Division:


 


(i)        The
retail price for each EarthLink Bundled Package shall be a discounted price
compared to the aggregate a la carte price of each service component of such
EarthLink Bundled Package (the resulting difference, the “Discount”), based on the TWC Division’s
then-current a la carte retail prices; provided, however, that to the extent
any such EarthLink Bundled Package includes TWC’s digital phone service, the
retail


 


17

















 


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


 


(ii)                      In respect of each Bundled Package, EarthLink
shall be responsible for 25% of the pro rata portion of the Discount
attributable to the EarthLink High-Speed Service. Schedule 1 contains an
illustrative example of the Discount allocation. For the avoidance of doubt,
Schedule 1 shall be utilized for financial settlement between EarthLink and TWC
only for Service Subscribers in the EarthLink Bundled Package. Financial
settlement of non-EarthLink Bundled Package Service Subscribers shall continue
to be handled pursuant to the Agreement. The TWC Division shall be entitled to
deduct EarthLink’s share of the Discount from the subscription fee split for
the EarthLink High-Speed Service portion of the EarthLink Bundled Package. The
parties agree that the EarthLink High-Speed Service component shall not appear
as 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 EarthLink
High-Speed Service as offered by EarthLink) and any promotional offering
associated with the EarthLink Bundled Package, and (ii) establish and
revise the specific TWC Division products, features and services to be included
in any EarthLink Bundled Package and any TWC promotional offering associated
with the EarthLink Bundled Package. The TWC Division shall retain sole
authority to cancel any video or digital phone components of any EarthLink
Bundled Package and to make corresponding pricing and discount allocation
revisions to such revised Bundled Packages.


 


(iv)                  The TWC Division will offer each EarthLink
Bundled Package at _ the same price as it offers each comparable Bundled
Package that includes a comparable service level offered by any other
high-speed ISP service. EarthLink may propose promotional offerings for the
EarthLink Bundled Package, which shall be subject to the TWC Division’s prior
written approval, such approval not to be unreasonably withheld or delayed;
provided, however, that, if TWC consents to conduct an EarthLink-requested
promotional offering for the EarthLink Bundled Package, TWC shall have no
obligations with respect to such EarthLink Bundled Package under the first
sentence of this Section 5.2(b)(iv). EarthLink may also propose additional
service offerings for the EarthLink Bundled Package to TWC. Such additional
service offerings for the EarthLink Bundled Package shall require the prior
written approval of Time Warner Cable’s corporate office.


 


(v)                     The TWC Division will retain customer-billing
responsibility for the Bundled Package. Nothing contained herein shall change
or modify EarthLink’s rights, as set forth in the Agreement, to set the retail
price for the a la carte EarthLink High-Speed Service and to sell other
services outside the Bundled Package.


 


(vi)                  To the extent that the TWC Division charges
installation fees to install any service component included in the EarthLink
Bundled Package, the TWC


 


18

















 


6.                         CPE AND
INSTALLATION


 


6.1                 CPE.


 


Unless otherwise
provided by the Service Subscriber, TWC will provide to each Service Subscriber
such modems, Ethernet cards, splitters or other customer premises equipment
that may be necessary for such Service Subscriber to access and use the
EarthLink High-Speed Service with a single Device provided by such Service
Subscriber (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                 Customer
Installation.


 


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


 


(b)       The
Party completing the sale for the applicable EarthLink High-Speed Service will
decide whether and how much to charge the Service Subscriber for an
installation fee, set-up fee or other upfront fee or charge, it being
understood that there is no requirement to assess such a fee or charge. TWC
hereby acknowledges and agrees that it shall not assess an installation fee to
Service Subscribers if TWC does not assess an installation fee to similarly
situated Road Runner customers. For Service Subscribers sold by EarthLink,
EarthLink shall pay TWC, within thirty (30) days of the end of the calendar
month in which an installation fee, set-up fee or other upfront fee or charge
is charged by EarthLink, an amount equal to fifty percent (50%) of the amount
charged, whether payable as a lump sum or otherwise.


 


(c)       TWC
and EarthLink will work together toward achieving self- provisioning by Service
Subscribers, and to implement self-provisioning in accordance with TWC’s
generally applicable requirements regarding protection of the System Facilities
as soon as available. TWC shall make all decisions regarding implementation in
its reasonable business judgment; provided that TWC shall not make such
decisions based upon whether a particular high-speed service customer is a
Service Subscriber or a customer of another Online Provider or Road Runner. The
Parties will work together toward the goal of achieving seamless
self-provisioning.


 


(d)       If
EarthLink or its third party installer provides any installation services for
Devices or otherwise provides services that include any contact with the System
Facilities, EarthLink will indemnify TWC for all damages, costs and expenses
incurred by TWC resulting therefrom, including but not limited to repair of the
System Facilities and fines or fees payable to the FCC for signal leakage
violations.


 


19
















 


7.                         CUSTOMER
SERVICE; TECHNICAL SUPPORT AND BILLING


 


7.1                 Customer Service
to Service Subscribers.


 


As it is expected that Service Subscribers may call either Party for
customer service, EarthLink and TWC will cooperate to ensure a smooth customer
service experience (e.g., coordination to determine which Party should handle
which issue, appropriate transfers from one Party to the other, sharing of
certain information, etc.). Each Party shall agree to handle common, simple
subscriber issues related to service availability, service features and
charges, basic troubleshooting plan, and billing issues. TWC and EarthLink will
coordinate to reasonably provide information to each other and handle handoff
of issues where problem resolution is the obligation of the other Party. Issues
to be handled by TWC shall include any issue relating to TWC’s obligations
hereunder (including issues relating to System Facilities and TWC CPE and
Installation Services to the extent provided by TWC). Issues to be handled by
EarthLink shall include any issue relating to EarthLink’s obligations hereunder
(including issues relating to EarthLink Software, support for downloaded
software provided by or on behalf of EarthLink that is a component of the
EarthLink High-Speed Service, and web and email support). Each Party will be
responsible for handling billing issues with respect to the EarthLink
High-Speed Service that is billed by such Party, with appropriate handoffs for
other billing inquiries. Each Party will provide the same level of end-user
support that it currently provides for its respective services; provided that such level of customer
service will be modified, if required, to comply with applicable law. The
extent to which the Parties shall work together and otherwise assure the best
customer experience within the foregoing responsibilities, as well as more
detailed requirements and procedures regarding customer service, shall be set
forth in an implementation plan mutually agreed by the Parties.


 


7.2                 Technical Support
to the Other Party.


 


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


 


7.3                 Billing.


 


TWC shall be responsible for billing Service Subscribers for the
EarthLink High-Speed Service. TWC may terminate a Service Subscriber’s
EarthLink High-Speed Service in accordance with TWC’s standard billing policies
and practices.


 


20

















 


8.                         TERM AND
TERMINATION


 


8.1                 Term.


 


Other than Sections 3(a)(ii) and (iii), which shall be effective
as of the Execution Date, the terms and conditions of this Agreement shall be
effective as of November 1, 2006 (the “Effective
Date”),  and unless
earlier terminated as set forth in this Agreement, shall expire five (5) years
from the Effective Date.


 


8.2                 Terminated
Agreements.


 


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


 


8.3                 Termination for
Cause.


 


Either Party shall have the right to terminate this Agreement without
liability to such Party (the “Terminating
Party”)  and upon
written notice to the other Party (the “Breaching
Party”),  in the event
of (a) a material breach of this Agreement by the Breaching Party, if such
breach is not cured within thirty (30) calendar days after written notice by
the Terminating Party to the Breaching Party of such breach, provided, however that if the Breaching
Party has used commercially reasonable efforts during such initial cure period
to 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 reasonable
efforts to cure such breach during such extension, or (b) repeated
material breaches of a material term of this Agreement of a similar nature by a
Party, even if cured, which would justify a reasonable person, acting in good
faith and considering relevant industry standards, to terminate this Agreement.


 


8.4                 Termination for
Bankruptcy/Insolvency.


 


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


 


21

















 


8.5                 Termination for
Transit Fee Surcharge.


 


EarthLink shall have the right to terminate this Agreement in
connection with an increase the monthly Transit Surcharge specifically as
provided for in Section 2.2(d)(v) herein. Such termination will be
effective sixty (60) days from EarthLink’s notification thereof. The provisions
of 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 Transit
Surcharge calculated based on a Benchmark Date Average of 54 kbps.


 


8.6                 Transition.


 


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


 


9.                         DEDICATION
OF RESOURCES; BUSINESS PRACTICES; TERMS OF SERVICE


 


9.1                 Dedication of
Resources.


 


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


 


9.2                 Business
Practices.


 


The Parties agree to comply with the Business Practices Handbook
attached as Exhibit B as the same has been or may in future be
supplemented or augmented by TWC’s reasonable business policies and practices.
With respect to shared information, and information that one Party receives
hereunder regarding the high-speed data service customers of the other, the
receiving Party shall abide by the disclosing Party’s (or Party with the
customer relationship, if applicable) privacy policies, as provided by such
other Party.


 


22

















 


9.3                 Terms of Service.


 


Each Party may agree upon terms of service with each Service Subscriber
with respect to the EarthLink High-Speed Service and any other of such Party’s
products or services; provided, however, that (a) EarthLink shall not
warrant or guarantee to any Service Subscriber any minimum throughput or
performance level that is dependent upon the TWC HSS or the System Facilities
without TWC’s written approval, and (b) in the event of any inconsistency
between such terms of service of the respective Parties, the Parties shall
diligently work together to resolve such inconsistencies and act accordingly in
dealing with Service Subscribers. Either Party may terminate a Service
Subscriber’s Service Subscription for a violation of that Party’s terms and
conditions, subscription agreements or acceptable use policies. Each Party’s
terms of service will be based on such Party’s generally applicable policies.


 


10.                  NO EXCLUSIVITY.


 


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


 


11.                  REPORTING


 


11.1          By TWC


 


To the extent then available, TWC will provide, for any Launched TWC
Division, monthly reports with the total number of Service Subscribers for
which TWC completed the sale during the preceding month. If available, such
report 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 bit
consumption by individual Service Subscribers. TWC will provide information
from 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 outages
of the System Facilities within the TWC Divisions where the EarthLink
High-Speed Service is offered. To the extent then available, EarthLink shall
receive a monthly report of each TWC Division’s EarthLink Service Subscriber
billing activity (which may include, without limitation, orders, cancels,
pending installs, installs completed and disconnects from the billing system of
each division, and product bundling detail). To the extent then available,
EarthLink shall receive a monthly report of each TWC Division’s EarthLink
Service Subscriber trouble tickets, and any credit or refunds issued to any
Service Subscriber. Notwithstanding the foregoing, TWC will provide to
EarthLink those reports concerning TWC’s provision of the EarthLink High-Speed
Service that EarthLink requires to comply with applicable law. To the extent
that EarthLink requires any reports in order to comply with applicable law
which are different from or, in any material way, additive to those reports
that TWC generates in the ordinary course of its business, EarthLink shall
reimburse TWC for its costs in producing such reports.


 


23

















 


11.2          By EarthLink


 


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


 


12.                  STANDARD LEGAL
TERMS.


 


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


 


24

















 


IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement 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

  



 


25
















 


SCHEDULE 1


 


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


 
















 


EXHIBIT A


 


DEFINITIONS


 


“Additional
EarthLink Revenues” means any and all revenues (or, in the
case of barter transactions, the fair market value of the consideration
received), other than the Retail Price, recognized by EarthLink or any
Affiliate Controlled by EarthLink in accordance with GAAP from:


 


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


 


(2) services that
utilize, or are reasonably necessary to provide or support, the EarthLink
High-Speed Service; or


 


(3) services that
utilize the System Facilities.


 


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


 


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


 


(b) revenues from
advertising and other promotional and paid for placements generated in
connection with the EarthLink High-Speed Service; and


 


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


 


(i) to the extent
known to be derived from and only from Service Subscribers utilizing the System
Facilities, 100% of such revenues;


 


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


 


(iii) to the extent
known to be derived from users of EarthLink’s broadband services and users of
EarthLink’s narrowband services, or where such revenues fall within the
definition of Additional EarthLink Revenues but do not fall within any of the
foregoing categories, an allocation of such revenues based on the aggregate
number of Service Subscribers utilizing the System Facilities relative to the
aggregate number of users of EarthLink broadband and narrowband services;


 


provided
that Additional EarthLink Revenues will not include:


 


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


 


(x) fees charged for
Web site hosting services; or


 


(y) fees charged for
home installation or customer technical support.


 


A-1

















 


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


 


(aa) collected franchise
fees (whether remitted or reserved for remission);


 


(bb) commissions and
bounty payments to unaffiliated third parties, Sprint Corporation and its
affiliate entities other than the EarthLink Entities and employee sales
representatives, but only to the extent such commissions and bounties are not
greater than market rate levels for such commissions and bounties;


 


(cc) separately invoiced
sales, excise or similar taxes; and


 


(dd) direct out of pocket
cost of goods sold/services provided, whether or not recorded by EarthLink for
financial accounting purposes as “cost of goods sold”, “cost of revenues”, “revenue
share” or other terms of similar import.


 


For example,


 


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


 


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


 


(3) in the event
EarthLink generates advertising revenues which are not based on Service
Subscriber access to such advertisement or otherwise generated through the use
of the System Facilities, the fees generated from the advertisement will not be
considered to be Additional EarthLink Revenues.


 


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


 


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


 


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


 


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


 


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


 


“Bright
House Cable System” means a cable television system or
portion thereof (i) which is owned or Controlled by


 


A-2

















 


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


 


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


 


“Confidential Information” means any information relating to or
disclosed in the course of this Agreement, which is, or should be reasonably
understood to be, confidential or proprietary to the disclosing Party (and all
such material in tangible form shall be conspicuously labeled confidential or
proprietary; and all such information conveyed orally shall be summarized in a
writing that is so labeled and delivered to the other Party within thirty (30)
days of the disclosure thereof), including (i) information (whether or not
labeled confidential or proprietary) about Service Subscribers, and (ii) technical
processes and formulas, source codes, product designs, sales, cost and other
unpublished financial information, product and business plans, projections and
marketing data. Notwithstanding the foregoing, “Confidential Information” shall
not include information (a) already lawfully known to or independently
developed by the receiving Party, (b) disclosed in published materials, (c) generally
known to the public, or (d) lawfully obtained from any third party. “Confidential
Information” shall include, as to each Party, the terms of this Agreement.


 


“Control” and its derivatives shall mean with regard to any entity (a) the
legal or record, beneficial, or equitable ownership, directly or indirectly, of
fifty 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) the
direct or indirect possession of the power to direct or cause the direction of
the management and policies of an entity, whether through the ownership of
voting 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 EarthLink
High-Speed Service and EarthLink Software, which are intended for distribution
to Service Subscribers, including any modifications, enhancements or
derivatives thereto.


 


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


 


“EarthLink Content” means all content created and controlled by
EarthLink and provided to Service Subscribers on the EarthLink High-Speed
Service.


 


“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 such
services may change from time to time, that is (are) offered by EarthLink to
end-users


 


A-3
















 


over the System
Facilities in accordance with the terms of this Agreement and exclusively
includes the Basic EarthLink High-Speed Service and the Premium EarthLink
High-Speed Services. All EarthLink High-Speed Services will be offered under
the 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 and
stylistic convention (including the digital implementations thereof) within the
EarthLink High-Speed Service and the total appearance and impression
substantially formed by the combination, coordination and interaction of these
elements.


 


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


 


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


 


“Incentive  Benchmark” has the
meaning 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 limited
to”, “includes but is not limited to”, and “including but not limited to”,
respectively.


 


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


 


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


 


“Installation Services” means the installation services necessary in
TWC’s reasonable discretion to schedule, install and activate the EarthLink
High-Speed Service to a single Device meeting reasonable specifications, which
services shall include (a) the scheduling and installation of cabling, if
necessary, in and outside the home, (b) the connection and installation of
all CPE (including, with regard to a modem, the related software) in or to the
Service Subscriber’s Device, (c) installation of the EarthLink Software
necessary to allow the Service Subscriber to access and use the EarthLink
High-Speed Service (d) confirmation that the Service Subscriber’s Device
successfully accesses the EarthLink High-Speed Service, and (e) any
necessary follow-up services in connection with failures of the installation
services referenced in subsections (a) through (d) to be performed
properly, as determined in TWC’s reasonable good faith discretion. For the
avoidance of doubt, Installation Services shall not include (w) any
subsequent service call unrelated to the work performed in connection with the
initial installation of the EarthLink High-Speed Service, (x) maintenance
of inside wiring, (y) design, installation or maintenance of home
networking systems or (z) other service calls necessitated by the


 


A-4

















 


unauthorized actions of
the Service Subscriber or EarthLink or its contractors.


 


“Internet” means the interconnected network of networks used to communicate
digital 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) it
is connected to the System Facilities, and the TWC Cable System and the System
Facilities, as so connected, have each met the relevant testing and acceptance
criteria; (b) unless otherwise mutually agreed, the date scheduled for
commencement of EarthLink High-Speed Service in such TWC Cable System shall
have occurred; and (c) such TWC Cable System is first capable of
distributing the EarthLink High-Speed Service in accordance with the Agreement;
and (ii), with respect to a TWC Division, that the first TWC Cable System
therein shall have Launched.


 


“LFA” means local franchise authority.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Premium EarthLink High-Speed Services” shall mean any and all EarthLink High-Speed
Services offered to Service Subscribers in addition to the Basic EarthLink
High-Speed Services, including but not limited to premium or other subscription
services, or pay-per-use/view services and including IP telephony that is not
part of the Basic EarthLink High-Speed Service, provided, however, that Premium
EarthLink High-Speed Services shall not include the provision of additional
e-mail “boxes” or Web site hosting
services.


 


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


 


“Promotional Materials” shall have the meaning set forth in Section 3.1
of 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

















 


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


 


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


 


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


 


“Service Subscription” means a single subscription by a Service
Subscriber for receipt of any Service Level of the EarthLink High-Speed Service
to one or more Devices at a single location utilizing a single cable modem
device.


 


“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 other
equipment, software and facilities, including but not limited to the networking
infrastructure (including all the physical and RF facilities, neighborhood
cabling and neighborhood aggregation points), ATD Network, connecting the
Internet to the cable modem or other device in which the network termination is
located at the location of each Service Subscriber; provided, however,  that System Facilities shall not
include 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 a
Party.


 


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


 


“Third Party TWC Content” means all content provided to Service
Subscribers on the TWC Site that is created and controlled by a third party
with whom TWC or any of its Affiliates has a contractual relationship under
which 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.


 


A-6

















 


(“TWE”), Time Warner
Entertainment-Advance/Newhouse Partnership (“TWEAN”),
Bright House Networks LLC or TWI Cable Inc. (“TWIC”),
or any other corporation, partnership, joint venture, trust, joint stock
company, association, unincorporated organization (including a group acting in
concert) or other entity as to which any one or more of TWC, TWI, TWE, TWEAN or
TWIC directly or indirectly possesses the power to direct or cause the
direction of such entity’s management and policies, whether through the
ownership 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 portion
thereof (i) which is managed by a Time Warner Company, and (ii) with
regard to which TWC or any Affiliate of TWC (including, for avoidance of doubt,
Bright House Networks LLC) has the right, through contract or otherwise, to
make decisions with respect to the Internet services to be provided on such
system, and which, in each case, is capable of providing Internet access to end
users.


 


“TWC Content” means all content created and controlled by
TWC 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 is
managed as a single business unit within TWC under a divisional president,
other than TWC’s “National Division” and “Southwest Texas Division” (each of
which, unlike other TWC divisions, is comprised of numerous small systems that
are generally not contiguous or connected to each other). Each TWC Cable System
(or where TWC Cable Systems are contiguous and connected, each group of
contiguous, connected TWC Cable Systems) within the National Division will be
considered a separate TWC Division herein.


 


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


 


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


 


A-7





















 


EXHIBIT B


 


BUSINESS
POLICIES HANDBOOK


 


The Parties will confer
and agree upon business policies to be incorporated into this Agreement. Until
such business policies are formally incorporated herein, the Parties shall
continue to apply existing business policies as they may be modified by the
Parties during the Term.


 


B-1

















 


EXHIBIT C


 


STANDARD LEGAL TERMS AND CONDITION


 


1.                         TRADEMARKS.


 


1.1      Trademark
License. In
designing, implementing, publishing, reproducing and distributing any
Promotional Materials and subject to the other provisions contained in the
Agreement: (a) TWC and its Affiliates shall be entitled to use the
following trade names, trademarks and service marks of EarthLink: “EarthLink”
and the EarthLink “orbit” logo, and in connection therewith, TWC shall comply
with the EarthLink style guide to be provided by EarthLink prior to the first
Launch and from time to time thereafter; and (b) EarthLink and its
Affiliates shall be entitled to use the following trade names, trademarks and
service marks of TWC: Time Warner Cable, Time Warner Communications and the
eye/ear logo, and in connection therewith, EarthLink shall comply with the TWC
style guide to be provided to EarthLink prior to the first Launch and from time
to time thereafter (collectively, together with the EarthLink marks listed
above, the “Marks”); provided that each Party: (i) does not create a
unitary composite mark involving a Mark of the other Party without the prior
written approval of such other Party and (ii) displays symbols and notices
clearly and sufficiently indicating the trademark status and ownership of the
other Party’s Marks in accordance with applicable trademark law and practice.
Each Party may authorize the other Party to permit such other Party’s
authorized distributors of the EarthLink High-Speed Service to use such Party’s
Marks in accordance with this Section. The Parties shall coordinate use of such
authorized distributors in order to minimize possibilities of conflict between
the distribution channels utilized by the Parties.


 


1.2      Rights. Each Party acknowledges that its utilization
of 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 licenses
expressly granted herein. Each Party agrees not to do anything contesting or
impairing the trademark rights of the other Party.


 


1.3      Quality
Standards. Each
Party agrees that the Marks are associated with high standards of quality and
services of the Mark’s respective owners, and that maintaining such uniform
level of quality is necessary to maintain the goodwill and reputation of the
Parties, respectively; and that the nature and quality of such Party’s products
and services supplied in connection with the other Party’s Marks shall conform
to reasonable quality standards provided by the other Party for the protection
of the Marks. Each Party agrees to supply the other Party, upon request, with a
reasonable number of samples of any Promotional Materials publicly disseminated
by such Party that utilize the other Party’s Marks. Each Party shall comply
with all applicable laws, regulations and customs and obtain any required
government approvals pertaining to use of the other Party’s Marks.


 


1.4      Infringement
Proceedings. Each
Party shall have the sole right and discretion to bring proceedings alleging
infringement of its Marks or unfair competition related thereto; provided,
however, that each Party agrees to provide the other Party, at such other Party’s


 


C-1

















 


expense, with its
reasonable cooperation and assistance with respect to any such infringement
proceedings.


 


2.                         OWNERSHIP.


 


As between the Parties, each Party shall own all information that it
collects from prospective, actual and former Service Subscribers in a manner
not violating this Agreement; provided, however, that where both Parties
collect the same information in a manner not violating this Agreement, both
Parties shall own such information, without any duty of accounting to the other
Party. As between EarthLink and TWC, the EarthLink Deliverables and any enhancements
and improvements thereto, including all intellectual property rights contained
or embodied therein, are and shall remain the exclusive property of EarthLink
except for any TWC Marks or other TWC materials provided to EarthLink by TWC
pursuant to this Agreement for inclusion in or to advertise, market or promote
the EarthLink High-Speed Service in which case TWC shall be deemed to have
granted a non-exclusive license thereto for such use, but solely to the extent
necessary for EarthLink to perform its obligations under this Agreement. TWC
shall not in any way alter, interfere with or modify the EarthLink Software or
the functionality, user interface or experience of the EarthLink High-Speed
Service. TWC shall not copy, use, reverse engineer, reproduce, display, modify
or transfer the EarthLink Software, Documentation or any other EarthLink
Deliverables, or any derivative works thereof, except to the extent necessary
to perform its obligations under this Agreement or as expressly permitted by
applicable law. EarthLink owns all right, title and interest in all aspects of
the EarthLink Deliverables and the content, applications, features,
functionality products and services included in the EarthLink High-Speed
Service (including the EarthLink Look and Feel and all advertising and
promotional spaces within the EarthLink High-Speed Service). TWC owns all
right, title and interest in all aspects of the TWC Site (including all
advertising and promotional spaces within the TWC Site) except for content
provided by EarthLink for use, placement or incorporation therein, which, as
between TWC and EarthLink, shall remain owned by EarthLink, and EarthLink shall
be deemed to have granted a non-exclusive license thereto for such use,
placement or incorporation therein.


 


3.                         PROMOTIONAL
MATERIALS; PRESS RELEASES.


 


3.1      Promotional
Materials. Each
Party shall submit to the other Party, for its prior written approval, which
will not be unreasonably withheld or delayed, any marketing, advertising, or
other materials to the extent such materials reference the other Party, the
transactions contemplated hereunder or the other Party’s Marks (the “Promotional
Materials”). If such approval is not affirmatively granted, it shall be deemed
denied.


 


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


 


C-2

















 


describing the
relationship created hereunder, either Party thereafter may make an accurate
factual reference to the existence of such relationship, without any further
description, in subsequent Press Releases without obtaining prior written
approval. Grounds for withholding approval of a Press Release shall include the
inclusion in any Press Release of any Confidential Information or any
information relating to the economic terms of this Agreement. Any approval
required hereunder not affirmatively granted shall be deemed denied.


 


4.                         REPRESENTATIONS
AND WARRANTIES.


 


Each Party: (i) represents and warrants to the other Party that it
has the full corporate right, power and authority to enter into the Agreement,
to grant the rights and licenses granted hereunder and to perform the acts
required of it hereunder; and (ii) represents and warrants to the other
Party that the execution and performance of the Agreement by such Party does
not, and will not, violate any agreement to which such Party is a party or by
which it is otherwise bound or any applicable governmental law or regulation to
which it is subject; and (iii) warrants that it shall perform its
responsibilities under this Agreement in a manner that does not constitute a
libel or defamation of the other Party or infringe or violate, or constitute an
infringement or misappropriation of, any United States patent of which the
executive officers of such Party have actual knowledge, copyright, trademark,
trade secret, rights of publicity or privacy or other proprietary rights of the
other Party or any third party; and (iv) represents and warrants to the other
Party that the execution and performance of this Agreement does not interfere
with any third party rights arising under any of the representing Party’s
agreements.


 


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


 


5.                         CONFIDENTIALITY.


 


Each Party acknowledges that Confidential Information may be disclosed
to the other Party during the course of the Agreement. Each Party agrees that
it will take reasonable steps, at least substantially equivalent to the steps
it takes to protect its own proprietary information, during the term of the
Agreement, and for a period of three years following expiration or termination
of the Agreement, to prevent the duplication or disclosure of Confidential
Information of the other Party, other than by or to its employees or agents who
must have access to such Confidential Information to perform such Party’s
obligations 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 Confidential
Information without the consent of the other Party, to the extent such
disclosure is required by


 


C-3

















 


law, rule, regulation or
government or court order. In such event, the disclosing Party will to the
extent possible except as made impossible by such law, rule, regulation or
government or court order, provide at least five (5) business days prior
written notice of such proposed disclosure to the other Party. Further, in the
event such disclosure is required of either Party under applicable laws, rules,
regulations, or government or court order such Party will (i) redact
mutually agreed-upon portions of this Agreement to the fullest extent permitted
under applicable laws, rules, regulations or government or court order and (ii) submit
a request to the applicable governing body that such portions and other
provisions of this Agreement be held in the strictest confidence to the fullest
extent permitted under such applicable laws, rules, regulations or government
or court order. Nothing in this Section will be construed as a
representation or agreement to restrict reassignment of either Party’s
employees, or in any manner to affect or limit either Party’s present and
future business activities of any nature, including business activities, which
could be competitive with the disclosing party. Nothing herein shall prohibit
the disclosing party from pursuing a transaction similar to the one
contemplated herein independently or with any other third party or parties.


 


6.                         INDEMNIFICATION
OBLIGATIONS.


 


6.1      Indemnification
of TWC. EarthLink
agrees to defend, indemnify and hold TWC and the officers, directors, agents,
Affiliates, distributors, franchisees and employees of TWC harmless from and
against any and all Losses arising from any Third Party Claim based on (a) a
breach of any EarthLink obligations, representations or warranties under the
Agreement; (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 of
EarthLink, any EarthLink Affiliate, or any officer, director, agent,
subcontractor, distributor, franchisee or employee of any of such entities; or (c) any
claims that the EarthLink Content or Third Party EarthLink Content, each to the
extent such content is distributed as part of the EarthLink High-Speed Service,
(i) violates any applicable law or regulation, (ii) infringes or
violates 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 that
EarthLink will have no obligation hereunder to the extent such Third Party
Claim relates in whole or in part to actions of TWC in violation of this
Agreement or any subsequent agreement or procedures agreed to between the
Parties.


 


6.2      Indemnification
of EarthLink. TWC
agrees to defend, indemnify and hold EarthLink and the officers, directors,
agents, Affiliates, distributors, franchisees and employees of EarthLink
harmless from and against any and all Losses arising from any Third Party Claim
based on (a) a breach of any TWC obligations, representations or
warranties under the Agreement; (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 of TWC, any TWC Affiliate, or any officer, director,
agent, subcontractor, distributor, franchisee or employee of any of such
entities; or (c) any claims that the TWC Content or Third Party TWC
Content, each to the extent such content is distributed as part of the TWC
Site, (i) violates any applicable law or regulation, (ii) infringes
or violates 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


 


C-4

















 


third party; provided
however that TWC will have no obligation hereunder to the extent such Third
Party Claim relates in whole or in part to actions of EarthLink in violation of
this Agreement or any subsequent agreement or procedures agreed to between the
Parties.


 


6.3      Indemnification
Procedure. If a
Party entitled to indemnification hereunder (the “Indemnified Party”) becomes
aware of any matter as to which it believes it is entitled to indemnification
hereunder involving any Third Party Claim, the Indemnified Party shall give the
other Party (the “Indemnifying Party”) prompt written notice of such Action.
Such notice shall (i) provide the basis on which indemnification is being
asserted and (ii) be accompanied by copies of all relevant pleadings,
demands, and other papers related to the Action and in the possession of the
Indemnified Party. The Indemnifying Party shall have the right to assume the
defense of the Action, and in the event the Indemnifying Party assumes such
defense, the Indemnified Party shall cooperate, at the expense of the
Indemnifying Party, with the Indemnifying Party and its counsel in the defense,
and the Indemnified Party shall have the right to participate fully, at its own
expense, in the defense of such Action. The Indemnifying Party shall have the
right to compromise or settle any Action; provided that the settlement or
compromise includes an unconditional release of each Indemnified Party from all
Losses arising out of the Action, and provided further that any compromise or
settlement involving anything other than monetary damages shall require the
consent of the other Party.


 


7.                         ACKNOWLEDGMENT.


 


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


 


8.                         AUDIT
RIGHTS.


 


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


 


C-5
















 


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


 


9.                         FORCE
MAJEURE.


 


Neither Party will be liable for, or be considered in breach of or default
under the Agreement on account of, any delay or failure to perform as required
by the Agreement as a result of strike, fire, explosion, flood, storm, material
shortages, riot, insurrection, governmental acts, labor conditions, acts of
God, war, earthquake or any other cause which is beyond the reasonable control
of such Party; provided, however, that the non-performing Party gives
reasonably prompt notice under the circumstances of such condition(s) to
the other Party.


 


10.                  INDEPENDENT
CONTRACTORS.


 


The Parties to the Agreement are independent contractors. Neither Party
is an agent, representative or partner of the other Party. The Agreement shall
not create for a Party or grant a Party any right, power or authority to enter
into any agreement for or on behalf of, or incur any obligation or liability
of, or to otherwise bind, the other Party. The Agreement will not be
interpreted or construed to create an association, agency, joint venture or
partnership between the Parties or to impose any liability attributable to such
a relationship upon either Party.


 


11.                  LIMITATION OF
LIABILITY.


 


11.1           Limitation for Service
Outages. Each Party’s
liability for monetary damages for service outages shall be limited to the
amounts set forth in Section 2.4 of the Agreement.


 


11.2           Limitation on Other
Liability. SUBJECT TO SECTION 11.3
OF THIS EXHIBIT C, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THE
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR
RELATING TO THIS AGREEMENT, INCLUDING LOSS OF REVENUE OR ANTICIPATED PROFITS OR
LOST BUSINESS.


 


11.3           Exclusions. The limitations set forth in Section 11.2
of this Exhibit C shall not apply with respect to: (a) damages occasioned
by 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/MEMBER
INFORMATION.


 


12.1           Solicitation. During the term of the Agreement, TWC will
not solicit Service Subscribers on behalf of another Online Provider; provided that the foregoing will not
restrict TWC from engaging in any solicitation or marketing activities that are
not specifically targeted to Service Subscribers.


 


12.2           Collection, Use and
Disclosure of Service Subscriber Information. TWC and  EarthLink
shall each ensure that its collection, use and disclosure of personally
identifiable


 


C-6

















 


information obtained from
Service Subscribers under this Agreement (“Service Subscriber Information”)
complies with (i) all applicable laws and regulations and, subject to the
foregoing (ii) each Party’s standard privacy policies. Without limiting
the generality of the foregoing neither party shall: (i) subject to
exceptions specified in applicable privacy policies and with respect to which
necessary consents and waivers shall have been obtained, disclose personally
identifiable Service Subscriber information to any third party; (ii) during
the Term, except as may be required by law or legal process, disclose to any
third party Service Subscriber information in a manner that identifies such
Service Subscriber as an end user of the EarthLink High-Speed Service, or (iii) subject
to exceptions specified in its published privacy policy or with respect to
which necessary consents and waivers will have been obtained in the subscriber
agreement, except as mutually agreed to by the parties, sell or distribute
Service Subscriber information to any third party. Subject to applicable law,
each Party shall reasonably cooperate with the other Party, and respond to
requests for assistance from law enforcement agencies, as necessary to protect
the 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 writing
and will be deemed to have been delivered and given for all purposes (i) on
the delivery date if delivered by confirmed facsimile; (ii) on the
delivery date if delivered personally to the Party to whom the same is
directed; (iii) one business day after deposit with a commercial overnight
carrier, with written verification of receipt; or (iv) five business days
after the mailing date, if sent by U.S. mail, return receipt requested, postage
and charges prepaid, or any other means of rapid mail delivery for which a
receipt is available. In the case of EarthLink, such notice will be provided to
Michael 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 the
case of TWC, except as otherwise specified herein, notice will be provided to
the address for TWC set forth in the first paragraph of this Agreement, to
Senior Vice President, Corporate Development (fax no. 203-328-0691); with a
copy to General Counsel (fax 203-328-4094).


 


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


 


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


 


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


 


C-7

















 


13.4           Survival. The following Sections of the Agreement will
survive the completion, expiration, termination or cancellation of the
Agreement: (a) in the event of a Transition Period, Section 8.6 and
the terms and conditions of the Agreement referenced therein (subject to the
survival provisions expressly set forth in such referenced terms and
conditions), (b) limitations of liability set forth herein, (c) with
respect to Exhibit C, Sections 5 and 8 each for the period specified
therein, and Sections 2, 6, 7, 9, 10, 11, 12.2 and 13, and (d) the definitions
set forth in Exhibit A to the extent applicable to any terms and
conditions that survive pursuant to this Section. In addition, any obligations
which 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 entire
agreement and supersedes any and all prior agreements of the Parties with
respect to the transactions set forth herein, except for any Existing Bundling
Agreements, as defined in Section 5.2(b). Neither Party will be bound by,
and each Party specifically objects to, any term, condition or other provision
which is different from or in addition to the provisions of the Agreement
(whether or not it would materially alter the Agreement) and which is proffered
by the other Party in any correspondence or other document, unless the Party to
be bound thereby specifically agrees to such provision in writing.


 


13.6           Amendment. No change, amendment or modification of any
provision of the Agreement will be valid unless set forth in a written
instrument signed by the Party subject to enforcement of such amendment and by
a 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) as
may reasonably be requested by any other Party for the implementation or
continuing performance of the Agreement.


 


13.8           Assignment. This Agreement shall accrue to the benefit
of and be binding upon the Parties hereto and any purchaser or any successor
entity into which a Party has been merged or consolidated or to which a Party
has sold or transferred all or substantially all of its assets. Neither Party
may assign this Agreement or assign or delegate its rights or obligations under
this Agreement without the prior written consent of the other Party, whose
consent shall not be unreasonably withheld or delayed; provided that, subject
to Section 3 of the Agreement, either Party may assign its rights and
obligations under this Agreement without the approval of the other Party to an
entity which acquires all or substantially all of the assets of the assigning
Party by way of asset purchase, merger, stock purchase or otherwise, to any
Affiliate of the assigning Party, or to a successor in a merger or acquisition
of 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 only
with regard to persons who are Service Subscribers immediately prior to, or
within six (6) months after, the Change in Control of EarthLink, and
EarthLink shall not have the right to sell any further subscriptions to the
EarthLink High-Speed Service, and TWC shall not have any obligations to any
Service Subscribers who were not Service Subscribers immediately prior to, and
did not become Service Subscribers within six (6) months after, the Change
in Control of EarthLink. For the purpose of this Section 13.8, the
following terms shall have the meanings set forth herein:


 


C-8

















 


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


 


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


 


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


 


(i)                         The accumulation in any number of related or unrelated transactions by
a TWC Competitor of Beneficial Ownership of more than fifty percent (50%) of
the 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 (as
those terms are defined in the Telecommunications Act of 1996), any entity with
Control of a direct broadcast satellite provider that provides such services in
the United States, or any entity which derives at least forty percent (40%) of
its annual revenue or $1 billion dollars in annual revenue from wireless
high-speed data services for desktop or laptop personal computers.


 


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


 


13.9                       [Reserved.]


 


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


 


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


 


13.12                Injunctive Relief: Remedies. Each Party acknowledges a violation of this
Agreement could cause irreparable harm to the other Party for which monetary
damages may be difficult to ascertain or an inadequate remedy. Each Party
therefore agrees that the other Party will have the right, in addition to its other
rights and remedies, to seek and obtain injunctive relief for any violation of
this Agreement. Except where otherwise specified, the rights and remedies
granted to a Party under the Agreement are cumulative and in addition to, and
not in lieu of, any other rights or remedies which the Party may possess at law
or in equity.


 


C-9

















 


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


 


13.14                Export Controls. Both Parties will adhere to all applicable
laws, regulations and rules relating to the export of technical data and
will not export or re-export any technical data, any products received from the
other Party or the direct product of such technical data to any proscribed
country listed in such applicable laws, regulations and rules unless
properly authorized.


 


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


 


13.16                Counterparts. The Agreement may be executed in
counterparts each of which will be deemed an original and all of which together
will constitute one and the same document.


 


C-10

















 


EXHIBIT D


 


Marketing Earth Link High-Speed Service Service Level
1 (Standard):


 


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


 


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


 


EarthLink
Lite


 


EarthLink will work
cooperatively with TWC to develop a new “Lite” service offering. This offering
will be rebranded and will be targeted at the remaining EarthLink dial-up
subscribers. As part of this effort, EarthLink shall create new direct
marketing materials substantially different from and incremental to those used
for standard EarthLink marketing to TWC markets. EarthLink will commit to
appropriate media spending as it deems most efficient in its reasonable
business judgment (but with meaningful consultation with TWC) incremental to
support for the EarthLink High Speed Service including, without limitation, a
commitment to spend over the initial twenty-four (24) months of the Term, a
total of at least $________ in such incremental marketing expenditures.


 

















 


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 as
follows with respect to the inclusion and marketing of the EarthLink High-Speed
Service as part of one or more Bundled Package(s) that includes TWC
products, features and services:


 


Defined Terms


 


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


 


Bundled Packages:


 


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


 


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


 


Marketing:


 


[EarthLink may use its
marketing dollars to support TWC’s marketing of the Bundled Package. These
marketing dollars shall be used to develop co-branded, co-operative
EarthLink/TWC campaigns that drive calls to the TWC Call Centers. These
campaigns and the tactics used may include language indicating EarthLink’s
participation in the TWC Bundles. Because these campaigns generate calls to the
TWC Call Centers, EarthLink will support the transactional opportunities to
sell EarthLink Bundled Packages. These funds will be negotiated on a
campaign-by-campaign basis with individual TWC Divisions. The terms of the campaign,
including marketing amounts and tactics, shall be detailed in this section of
the applicable Marketing Letter. The relevant TWC Division and EarthLink shall
agree on the nature and extent of cooperative marketing efforts as part of the
agreement to include EarthLink High Speed Service in one or more bundled
packages in the TWC Division.]


 


[Insert marketing
arrangements for the relevant TWC Division.]


 

















 


Reporting:


 


Each participating TWC
division will use commercially reasonable efforts to provide Earthlink with a
written report and appropriate supporting documentation (mail receipts, media
affidavits, invoices, etc.) detailing how the marketing dollars referred to
above 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 EarthLink
connects and disconnects that are associated with the EarthLink Bundled
Packages. EarthLink agrees to make use of existing TWC Division reports rather
than require standard reporting across TWC Divisions.


 


Billing:


 


The TWC Divisions will
create and maintain appropriate billing system detail to facilitate tracking
for each Bundled Package.


 


Installation (check box as appropriate):


 


o   TWC
will provide free standard Installation to all subscribers responding to the
Promotion.


 


o   TWC
will provide standard Installation for a one-time fee of
$             to
all subscribers responding to the
Promotion.


 


Allocation of Discount:


 


The Discount shall be
allocated as set forth in the Letter.


 


Other Terms


 


Other than as set forth
herein during the Promotion, all terms and conditions contained in the
Agreement, 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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 

















 


EXHIBIT F


 


SERVICE LEVEL 3 INCENTIVE EXAMPLES


 


For purposes of this
example, Bright House Systems and all other systems are addressed collectively
as TWC Systems. The calculations illustrated herein would be performed
separately for the group of Bright House Systems and the group of all other
systems.


 


The examples herein
assume that: (i) the Incentive Benchmark in TWC Cable Systems on the
Effective Date is 550,000; (ii) the Incentive Benchmark in TWC Cable
Systems 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 second
anniversary of the Effective Date is 575,000 (i.e., EarthLink has again become
eligible for the Service Level 3 Payment incentive).


 


·                             From
the Effective Date until the first anniversary of the Effective Date, TWC is
entitled to a monthly payment of $_____ as part of the SL3 TWC Monthly Fee for
the Service Level 3 Service Subscriptions sold by EarthLink during this twelve
(12) month period. Any Service Level 3 Service Subscriptions originally sold by
EarthLink that terminate during this period will result in an $___ payment
reduction 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 of
EarthLink-sold Service Level 3 Service Subscribers on the date of such
termination is lower than the number of EarthLink-sold Service Level 3 Service
Subscribers that existed on the Effective Date), the reduction would be $_____
(since the terminating subscriber would be deemed to be a Service Level 3
Service Subscriber existing as of the Effective Date).


 


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


 

















 


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