Night Owl 9/Night Owl CD-ROM (NOPV9) (Night Owl Publisher) (1993).ISO/006a/bbslaw10.zip/CHAPT3.MAN

Text File | 1993-03-21 | 20KB | 450 lines

Chapter 3, Legal Forms

SECTION 3-1 INTRODUCTION


The base package of the BBS LEGAL GUIDE provides numerous legal
forms for use by:

BBS sysops, both on "pay" and "hobby-not for profit" systems;
BBS message networks;
Developers of software or purchasers of custom software;
and other persons in the BBS community.

These forms are, if at all possible, written in a "plain
language" style, that is, with as few "legalisms" and little
abstruse prose as possible. However, all of the forms, within the
limitations set forth in this manual, are legally binding and
valid in all 50 states.

The forms exhibit some judgment based on personal experience and
what the authors of this program consider to be prevalent or
preferable BBS practice. As practices change, or new practices
evolve, more forms or variations of existing forms will be added.

However, much of the value in this service is that users obtain a
subscription to monthly updates. Monthly updates are "driven" in
part by a schedule of planned enhancements and additions, but,
they are also responsive to comments from registered users and
potential registered users. Over time, it is our goal to offer
several variants of each form, with different levels of
complexity and different philosophies. Users are cordially
invited via our support BBS systems, GENIE, fax, or voice to make
requests for new forms, or, alternate versions of existing forms.

FORMS UNDER DEVELOPMENT:

Custom software writing contract, license basis, under $ 20,000
Custom software writing contract, license basis, over $ 20,000
Request for proposal, software development
Complete employee manual, 9-25 employees
Complete employee manual, over 25 employees
Employee agreement- option to purchase shares in business
Complete by laws and shareholder's agreements for corporation's
operating BBs systems
Venture capital investment in BBS
Joint venture between BBS and other firm
California specific OSHA manual
Non-profit BBS file distribution network rules
User agreement with nonprofit BBS system
Complete IRS not for profit educational or other foundation
charter and bylaws, for not for profit BBS
BBS co-sysops manual

(These updates are depending on the level of registration
obtained in encrypted form from support BBS systems or are mailed
to registered users. The updates are released monthly on the last
day of each month, with the first update scheduled for April,
1993.

Thus, over time, the library of forms will greatly expand and
offer more choices.

The forms may also double as BBS screens when appropriate. Please
note that registration is mandatory before screens or contracts
may be used.

We recommend that if you are in need of a form that you prepare
the form with different choices, and,

SECTION 3-2 EMPLOYEE/PERSONNEL FORMS

If a BBS has even one employee, labor law problems crop up. Most
"labor law" problems revolve around a failure to specify ground
rules. For example, can someone be fired for dressing in a
clearly inappropriate fashion? In some states, the answer is no,
unless that is made a condition of employment. In many cases,
insurance companies do not insure companies who don't have an
employee manual. We provide a general draft of a manual.

Section 3-2 (A) Complete employee manual, 9 or fewer employees

This form is suitable for a small BBS in which all employees
report to one person. All major issues are covered in this
manual, including work rules, pay, benefits and
intellectual/privacy concerns. Users may desire to alter policies
or add others one. After completion of the form, use the built in
word processor to do so. Each employee should be given a copy of
the manual, and, each employee should sign a receipt (provided)
for their copy.

Section 3-2 (B) Potential employee, release for background check

Many businesses now have a firm rule that they do not release
information concerning ex-employees except for their dates of
employment and job titles. This has occurred because persons who
left employment have sought legal redress for real or imagined
libels or misrepresentations. This form may be given to
prospective employees, and used to attempt to get an evaluation
from prior employees.

The data required are simply the names of the parties and their
addresses.

SECTION 3-3, BBS AND ITS USERS

BBS systems tread in waters full of legal liability. Many systems
want to distribute GIF's, or want to eliminate or control flames.
Virtually all BBS systems offer file transfers. These activities
all carry risks. It is suggested that written applications be
taken for access to GIF areas which may contain "adult" material.

Many BBS systems discourage flames, or, try to keep "flames"
under control by confining flaming to a "rubber room" or flame
area." However, if you do allow flames, things can get ugly.
Therefore, a recommended form for access to the flame areas is
provided.

As noted in one of the tutorials, file transfers may result in
liability. We provide forms that are usable as bulletins which
either point out that viruses are not checked for, or if Ziplab,
or other similar virus scanning programs, that these programs are
not fool proof.

Section 3-3(a) Application/release for GIF (adult) sub-board

This form provides verification of the persons status as an adult
and requires their assent to a release and indemnity. Note that
since the Uniform Criminal Code provides that even "obscene"
programs may be distributed among persons, noncommercially
without violation of the law, strict limits on commercial use of
files are included in the form.

This form may either be used as a template for printing such
forms, or can be produced when needed.

Section 3-3(b) Application to enter flame area

Some systems simply bar "flaming." Others permit users to blow of
steam in "rubber rooms" or "flame conferences." However, by their
nature, discussions in such areas often go to extremes. When
persons get their feelings hurt, libel suits often follow. This
form insulates the BBS by limiting the flame area to those who
agree not to sue the BBS or each other over flames. It also
requires that flames not be further distributed (thus
discouraging flames from spreading all over the place).

Section 3-3(c) Virus non-liability

This form serves the dual function of advising the user that the
board posts uploads without testing, and requiring the user to
assume the risk of testing. This form is suitable for use as a
BBS screen or bulletin.

Section 3-3(d) Virus, checks made, non-liability

This form notifies the user that virus scans, or other steps are
taken to attempt to prevent the posting of infected programs. The
form additionally requires the user to assume liability for
examining files, since no upload scan protocol provides total
security.

Section 3-3(e) Disclaimer of warranty on files

As noted elsewhere, on pay systems, and probably even on free
ones, the UCC might (or does) interpret transfer of files as
sales. That status then automatically attaches warranties
including copyright non-infringement, conforming to the
description of the files and merchantability. This form alert
users that the system does not check that programs operate as
described by the uploader, and disclaims all other warranties.

SECTION 3-4 SOFTWARE/INTELLECTUAL PROPERTY FORMS:

BBS software developers often distribute beat code; BBS systems
sometimes have confidential data that they need to share with
third parties. Special legal and contractual issues arise from
intellectual property. and this program contains several
different forms on this area of the law.

Section 3-4(a) Non-disclosure agreements, unilateral and bi
lateral

These forms are generic non-disclosure forms and are based in
part on the Uniform Trade Secrets Act. The information required
to prepare these forms includes the parties and a description of
the technology. Generally, these descriptions should be tailored
carefully to match the technology or business information which
is being disclosed.

Section 3-4(b) Custom software contract, buy out

This form is for a sponsoring agency to commission the writing of
computer software and to obtain total rights, including source
code and the right to sell the program or source code without
further payment.

The information required are the names of the parties, the
language, operating system and target compiler. Options are
provided for non-competition agreements, target or firm delivery
dates, and payment means.

Section 3-4(c) Beta test agreement: public and private

Often BBS systems agree to act as beta test site for new versions
of their BBS software. Developers of programs have a need for
both public betas, that is a beta test in which the program, like
a BBS is used by the public, and private betas, where there are
significant restrictions (or prohibitions) on the disclosure of
the beta. Betas created special legal problems. The code, after
all, is not yet tested. Persons participating in a beta may
expect a problem or two, but as anyone who has written computer
code knows, a "minor change" can cause a hard drive to be
overwritten. Therefore, the beta test agreements both warn and
disclaim liability.

Section 3-4(d) Joint author's agreement

The copyright code provides that joint authors may individually
deal with the joint work, with the only obligation being to
account for profits with the co-author. This agreement imposes a
structure on the co-authors relationship. It requires unanimity
between the parties as to sales of rights, and limits the reuse
of the copyright material.

Section 3-4(e) Government license transfer clause

If a program is sold to the federal government, the restrictions
contained in a "shrinkwrap license" or other license related to
the program does not bind the federal government, period. Either
a custom agreement must be reached, or, alternatively if the
program is an "off the shelf" item, provided that the program
contains a copyright notice, the government will agree to a
limited license. This license is consistent with most ordinary
shrinkwrap licenses. (The full text of the regulation is
available from the statutes menu.) Therefore, most commercial
software should contain this disclaimer.

Section 3-4(f) Software maintenance agreements)

Consultants, vars or si's often agree to maintain third parties
programs for their customers. This agreement governs the
maintenance agreements. It provides for alternatives, such as
providing for training to be included in the contract, and, also
for different payment options.

A second form is for maintenance on a product where the party
performing the service was also the developer of the program.
Normally such issues are part of the original sale or license
agreement. However, from time to time, customers use programs
beyond what one would consider a useful life of the program.
Therefore, this form can be used for service agreements after the
original service is completed.

Section 3-5 EQUIPMENT/FINANCING FORMS

BBS systems may prefer leasing equipment to outright purchase.
And, like most businesses, from time to time money may be
borrowed, whether long term or short term, secured or unsecured.
Various financing related forms are contained in this section.

Section 3-5(a) Commercial Equipment Lease

This form prepares a typical commercial equipment lease. Options
are included for "leases with option to purchase" and other
options, such as allocation of insurance costs, etc.

Section 3-5(b) Prommisory note

A promissory note is an UNCONDITIONAL promise to pay money. Keep
the key word unconditional in mind when executing one. In
addition, most promissory notes provide for negotiability. (The
note which we provide is negotiable.) This form will prepare
unsecured notes, either as a demand note, installment note or
date certain note. In addition guarantors can also be added.


The following information is required:

names of borrowers and lenders, principal amount borrowed, the
full address of the place where payments are due, the rate of
interest on the note EXPRESSED as simple interest. The note may
either be due on demand (demand notes by convention are due in
one year), in installments, or all in one lump sum on a date
certain. If the note is guaranteed by third parties, please
indicate so.

IMPORTANT NOTE: Promissory notes are signed by the borrower- the
lenders signature is unnecessary (and bad form) except on the
back of it as an endorsement if the note is negotiated to others.

This form is called many different things by different folks.
Some refer to it as a "conditional sale" in which the condition
is you get to keep the property if you pay a debt that you agreed
to pay to acquire the property. Sometimes it is called a "Chattel
Mortgage"; in some cases it is known as "Lease." All of these
instruments are really security agreements. In simple words a
security agreement is a LIEN on property.

LIMITATIONS: Security agreements are used for tangible assets,
contract rights and intangibles. They are NOT appropriate for
securities, cash or real estate. With securities a pledge and
physical possession of the securities is appropriate. With cash,
physical possession is required and with real estate mortgages
are required (trust deeds in some states.) SPECIAL WARNING:
Unless you have physical possession of the collateral certain
filings are required to perfect the lien. If you don't file, your
lien will be invalid against other creditors.

This selection on the menu prepares three different types of
security agreements. The first is a standard security agreement
in which a party puts up his property for a loan or for a
purchase. In this form, the debtor agrees to make good any
deficiency (that is if the property is repossessed and does not
bring enough in to pay off the debt, they're on the hook for the
difference.) There are some further variations: whether the
security is provided for a single debt or for all debts (this
latter set is called a cross collateralization clause.)

In addition, this selection on the menu can produce a
hypothecation. (See on line dictionary for explanation).

The following information is required:

names of each party; a specific explanation of the property
secured, either general or specific-- thus you can have a lien on
a specific fork-lift, or on the accounts receivable of a
business;

if the security agreement secures a specific debt, the date of
the debt and the original principal amount;

if the security agreement is a hypothecation, then the person for
whom the debt is secured must be identified, together with that
debt-- the date of the debt and the original amount;

in all security agreements-- are there other liens on the
property? (first lien vs. junior lien) and if so, the amount of
the liens and the identify of the creditor;

will this security agreement secure all other debts between the
parties?

Section 3-6 BBS AS A BUSINESS ENTITY:

This section provides general partnership, sales of a BBS, or
transfer of some or all BBS accounts from one BBS to another.

Section 3-6(a) General partnership agreement

This form includes some of the additional clauses which are
required in a larger partnership. It gets harder and harder to
write "generically adaptable" forms when larger sums are
involved. However, this form covers the major bases. Here is the
information required:

State and county where the partnership was formed, the business
to be engaged in; the starting date of the partnership; address
of the principal office of the partnership; the capital
contributed by the partners; the time period between accountings;
an option is provided for draws; the maximum dollar authority of
each partner; and an option is provided for the regular affairs
of the partnership to be managed by a committee.

Section 3-6(b) Transfer of accounts between BBS systems

This form provides a framework for the transition of accounts
between BBS systems. It is a broadly configurable agreement. For
example, the transfer can be at no charge, or with the
originating and receiving entities paying. Options are also
provided for accounts receivable to be transferred, and for
particular agreements to be assumed by the new system.

Section 3-6(c) Vendor--insert card agreement

If you've purchased a commercial software program (or some
shareware programs) offers probably fallen out to join on-line
services. This contract is usable by a BBS system to enter into
an agreement with the providers of software to advertise their
BBS systems through product "fall out" agreements. Numerous
options are provided for payment, fulfillment and term.

Section 3-6(d) Sales representative for BBS

Many BBS systems are running to capacity or almost capacity
during weekends and evenings, but remain idle during the day.
Numerous BBS systems act as data distribution points for
compensation. Availability of service implies the need for
salesmen. This agreement provides for exclusive, non-exclusive,
mixed territory and product line agreements for independent
contractor/manufacturer's representatives.

Section 3-6(e) Advertising purchase for BBS

Many BBS systems offer free classified ads. However, others
charge certain customers for classified ads. This is an insertion
order agreement for advertising, providing limitations on
liability, and like newspaper ads, requires that the user read
their ad at the first insertion and complain then or forever hold
their peace.

Section 3-6(f) Non compete agreement

WARNING: Many state laws, particularly that of California,
severely limit non-competition agreements. This is a generic form
of non-compete agreement, and is related to the termination of a
business agreement.

Section 3-6(g) Sub-board, promotional consideration

Many fine BBS systems allow software and hardware developers to
use their BBS systems for customer service. This is usually
accomplished by setting up a sub-board or forum. This agreement
provides for such an arrangement, in exchange for the developer
advertising the BBS. It also limits the BBS system's liability
and allows for termination of the agreement.

Section 3-6(h) Sub-board, paid

Similar to section 3-6(g) this form redefines the relationship
between the parties, provides a standard of service to be met,
and limits the liability of the system to an abatement.

Section 3-7 NOT FOR PROFIT BBS

Non-profit BBS systems are in a unique system. The BBS offers a
public service, yet it is a labor of love. However, the law does
not give allowances for this fact. Accordingly, it is the
responsibility of the not for profit BBS to limit its liability.

Section 3-7(a) Constitution for computer club with BBS

This document is a framework for a computer club with BBS system,
and is based on governance of the club by elected boards.

Section 3-7(b) Joint operation of non-profit BBs

Friend often merge resources to run a BBS. However, an orderly
framework should be added if there is ever a split between the
parties.

Section 3-8 BBS MESSAGE AND FILE NETWORK

BBS message and file networks usually try to be user friendly.
However, some sort of framework is needed to provide a civilized
network, and to deal with the 1/2 of 1 % of users who end up
trash canned or in the joker.dat file. During preparation of this
form the user is provided with many options for rules regarding
all aspects of file networks.