Common use of ASP Clause in Contracts

ASP. For so long as EarthLink or a Subsidiary of EarthLink owns a share of Class B Common Stock, each Stockholder and each Subsidiary of a Stockholder that acts as an ASP in the United States (each, a “Provider”) and proposes to offer ASP solutions, applications and platforms, including a license or professional service with respect thereto, but excluding Coloring Service, (each, an “ASP Item” and collectively, the “ASP Items”) to any Third Party within or for use within the United States, shall give the Operating Company written notice six (6) months prior to the proposed offer. During the six (6) month notice period, the Operating Company shall have the option to purchase or adopt the offered ASP Item or Items from the Provider (for purposes of internal use or resale to Third Parties) on terms no less favorable than those offered by the Provider to the Third Party. If the Operating Company purchases or adopts the offered ASP Items(s) from the Provider within the option period, then Provider shall: (a) be prohibited from offering or selling the ASP Item(s) to any Third Party in the United States or for use in the United States without the Operating Company’s written consent. If the Operating Company declines to acquire or adopt the ASP Item(s), the Provider may provide the ASP Item(s) to the Third Party; and (b) provide the Operating Company with a reasonably detailed service deployment plan with respect to the ASP Item(s). The foregoing shall not apply to contracts between a Provider and any Third Party entered into prior to November 1, 2004. Under no circumstances shall SKT propose to offer ASP Items to Third Parties within or for use in the United States during 2005.

ASP. For so long as EarthLink or a Subsidiary of EarthLink owns a share of Class B Common Stock, each Stockholder Member and each Subsidiary Subsidiaries of a Stockholder Member that acts as an ASP in the United States (each, a “Provider”) and proposes to offer ASP solutions, applications and platforms, platforms (including a license or professional service with respect thereto, but excluding Coloring Service, (each, an “ASP Item” and collectively, the “ASP Items”) to any Third Party within or for use within the United States, shall give the Operating Company written notice six (6) months prior to the proposed offer. During the six (6) month notice period, the Operating Company shall have the option to purchase or adopt the offered ASP Item or Items from the Provider (for purposes of internal use or resale to Third Partiesthird parties) on terms no less favorable than those offered by the Provider to the Third Party. If the Operating Company purchases or adopts the offered ASP Items(s) from the Provider provider within the option period, then Provider provider shall: (a) be prohibited from offering or selling the ASP Item(s) to any Third Party in the United States or for use in the United States without the Operating Company’s written consent. If the Operating Company declines to acquire or adopt the ASP Item(s), the Provider may provide the ASP Item(s) to the Third Party; and (b) provide the Operating Company with a reasonably detailed service deployment plan with respect to the ASP Item(s). The foregoing shall not apply to contracts between a Provider and any Third Party entered into prior to November 1, 2004. Under no circumstances shall SKT propose to offer ASP Items to Third Parties third parties within or for use in the United States during 2005.

ASP. For so long as EarthLink or a Subsidiary of EarthLink owns a share of Class B Common Stock, each Stockholder Member and each Subsidiary of a Stockholder Member that acts as an ASP in the United States (each, a “Provider”) and proposes to offer ASP solutions, applications and platforms, platforms (including a license or professional service with respect thereto, but excluding Coloring Service, (each, an “ASP Item” and collectively, the “ASP Items”) to any Third Party within or for use within the United States, shall give the Operating Company written notice six (6) months prior to the proposed offer. During the six (6) month notice period, the Operating Company shall have the option to purchase or adopt the offered ASP Item or Items from the Provider (for purposes of internal use or resale to Third Partiesthird parties) on terms no less favorable than those offered by the Provider to the Third Party. If the Operating Company purchases or adopts the offered ASP Items(s) from the Provider provider within the option period, then Provider provider shall: (a) be prohibited from offering or selling the ASP Item(s) to any Third Party in the United States or for use in the United States without the Operating Company’s written consent. If the Operating Company declines to acquire or adopt the ASP Item(s), the Provider may provide the ASP Item(s) to the Third Party; and (b) provide the Operating Company with a reasonably detailed service deployment plan with respect to the ASP Item(s). The foregoing shall not apply to contracts between a Provider and any Third Party entered into prior to November 1, 2004. Under no circumstances shall SKT propose to offer ASP Items to Third Parties third parties within or for use in the United States during 2005.