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KIYAKU_C.TXT
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1997-09-10
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1995年9月11日
< コンピュサーブ会員規約 >
本規約は、米国CompuServe社(以下コンピュサーブという)が提供するパソコン通
信サービスCompuServe Interactive(以下サービスという)の利用のために、ニフ
ティ株式会社(以下ニフティという)がコンピュサーブの代理店としてコンピュサ
ーブの承認のもとに、サービスの利用のための会員登録方法及び利用料金徴収など
に関して取り決めるものです。
第1条(本規約の範囲および変更)
サービスまたはニフティが提供するパソコン通信サービスニフティサーブ(以下
ニフティサーブという)のオンラインなどを通じ随時、会員に対して発表される諸
規定は本規約の一部を構成し、会員は、これを承諾します。また、コンピュサーブ
およびニフティは、会員の了承を得ることなく本規約を変更することがあり、会員
はこれを承諾します。この変更はサービスもしくはニフティサーブのオンラインま
たはコンピュサーブもしくはニフティが提供する手段を通じて発表します。
第2条(会 員)
会員には、ニフティの指定する手続きにもとづき、本規約およびコンピュサーブが
規定する「COMPUSERVE ONLINE INFORMATION SERVICE AGREEMENT TERMS(以下
COMPUSERVE AGREEMENTという)」を承諾のうえ、ニフティにサービスの利用を申し
込み、ニフティがコンピュサーブの了承のもとに、入会の承認をした一般会員およ
びビジネスアカウント会員があります。
第3条(会員番号およびパスワードの管理責任)
会員は、会員番号としてコンピュサーブの了承のもとに、ニフティより付与された
番号(以下IDという)およびパスワードを第三者に譲渡もしくは利用させたり、
売買、名義変更、質入などすることはできません。会員は、本規約にもとづき付与
されたIDおよびパスワードの管理、使用について責任を持つものとし、ニフティ
およびコンピュサーブに損害を与えることのないものとします。会員は、当該ID
およびパスワードでのサービスの利用に関する責任を負うものとし、自己の責任に
よりその利用に係わる一切の債務を支払うものとします。
第4条(ビジネスアカウント会員)
コンピュサーブの了承のもとに、ニフティによりビジネスアカウント会員への加入
を承認された場合、ビジネスアカウント・ナンバーが付与されます。また、会員申
込が行われた会員に、IDおよびパスワードが付与されます。ビジネスアカウント
会員の申込を行った法人は、ビジネスアカウント会員に、本規約の各条項および
COMPUSERVE AGREEMENTの各条項を遵守させるものとします。
第5条(変更の届け出)
会員は、住所、クレジットカードの番号、有効期限、その他ニフティへの届け出内
容に変更があった場合には、速やかに所定の変更届け出をニフティに行うものとし
ます。なお、婚姻による姓の変更など、ニフティが承認した場合を除き、登録され
た氏名の変更を行うことはできません。
第6条(損害賠償)
ニフティおよびコンピュサーブはサービスの利用により発生した会員の損害すべて
に対し、いかなる責任をも負わないものとし、一切の損害賠償をする義務はないも
のとします。会員がサービスの利用によって第三者に対して損害を与えた場合、会
員は自己の責任と費用をもって解決し、ニフティおよびコンピュサーブに損害を与
えることのないものとします。会員が本規約またはCOMPUSERVE AGREEMENTに反した
行為、または不正もしくは違法な行為によってニフティまたはコンピュサーブに損
害を与えた場合、ニフティおよびコンピュサーブは当該会員に対して相応の損害賠
償の請求を行うことができるものとします。
第7条(情報の取り扱い)
会員は、サービスを通じて入手したいかなる情報も、下記の国向けに直接提供また
は第三者をして提供できないものとします。
記
アフガニスタン・イスラム共和国、アルバニア共和国、カンボジア、
キューバ共和国、イラン・イスラム共和国、イラク共和国、
ラオス人民民主共和国、社会主義人民リビア・アラブ国、モンゴル国、
シリア・アラブ共和国、朝鮮民主主義人民共和国、イエメン共和国
上記の国名は状況変化などにより、ニフティまたはコンピュサーブの判断にてそ
の都度変更できるものとします。
第8条(サービスの提供範囲および利用限度額の設定)
ニフティおよびコンピュサーブは自己の判断にもとづき、各会員ごとにサービスの
提供範囲の制限を設定または変更することがあります。また、ニフティおよびコン
ピュサーブは同様に、各会員ごとにサービスの利用限度額を設定または変更するこ
とができるものとします。
第9条(サービスの利用料金など)
サービスの利用料金、算定方法およびその支払い方法などは別途定める内容に従う
ものとします。なお、個別に支払い方法が規定されている場合には、その条件に従
うものとします。会員は利用料金などに係わる消費税およびその他賦課される税を
負担するものとします。また、ニフティはビジネスアカウント、銀行振替およびそ
の他支払い方法により、最低利用料金を設定または変更する場合があります。
第10条(サービスの利用料金などの支払い)
サービスの利用料金などの支払いに関しては、下記の外、各会員ごとにニフティが
承認した一つによるものとします。また、利用料金などの支払いは、毎月行うもの
としますが、クレジットカード会社、収納代行会社、金融機関などで別途利用条件、
支払い条件、利用限度額の設定などの規定がある場合には、それらに従うものとし
ます。会員と当該クレジットカード会社、収納代行会社、金融機関などの間で紛争
が発生した場合は、当該当事者双方で解決するものとしニフティおよびコンピュ
サーブには一切の責任はないものとします。
(1)クレジットカードによる支払い
ニフティが承認したクレジットカード会社の発行するクレジットカードによ
り、クレジットカード会社の規約にもとづき支払うものとします。
(2)預金口座振替による支払い
別途定める「預金口座振替による会員登録申込書」に記載された内容に従うも
のとしますが、ニフティが指定した収納代行会社を通じ、請求するものとし、
その方法は収納代行会社が定める方法で行うものとします。
(3)ビジネスアカウント会員
別途定めるビジネスアカウント会員申し込み書に記載された内容に従うものと
します。
第11条(延滞利息)
利用料金などの支払いは、毎月行うものとし、支払い期日を過ぎても支払いが行わ
れない場合は、会員は支払い期日の翌日から支払いの日の前日までの日数に、年
14.5%の割合で計算される金額を延滞利息として、利用料金などと一括して、
ニフティが指定した日までに支払うものとします。
第12条(会員資格の取消)
会員が、次の各号の一つにでも該当する場合は、ニフティおよびコンピュサーブは
当該会員の会員資格を会員に何ら通知および催告することなく、一時停止または取
り消すことができます。この場合ニフティおよびコンピュサーブはすでにお支払い
いただいた利用料金の払い戻しなどは、一切行いません。
(1)入会時に虚偽申告をした場合
(2)入力されている情報の改ざんを行った場合
(3)IDまたはパスワードを不正に使用した場合
(4)サービスの運営を妨害した場合
(5)サービスの利用料金などの支払い債務の履行を遅滞し、または支払いを拒
否した場合
(6)クレジットカード会社、収納代行会社、金融機関などにより、会員の指定
したクレジットカードや支払い口座の利用が停止させられた場合
(7)本規約またはCOMPUSERVE AGREEMENTのいずれかの条項に違反した場合
(8)その他ニフティまたはコンピュサーブが会員として不適当と判断した場合
第13条(退 会)
会員が退会する場合は、退会しようとする日の1ヵ月前までに所定の書式にてニフ
ティに届け出るものとし、ニフティおよびコンピュサーブに対する債務の全額をた
だちに支払うものとします。ニフティおよびコンピュサーブは既にお支払いいただ
いた利用料金の払い戻しなどは一切行いません。
第14条(専属的合意管轄裁判所)
会員とニフティの間で、訴訟の必要が生じた場合、ニフティの本社所在地を管轄す
る裁判所を会員とニフティの専属的合意管轄裁判所とします。
また、会員とコンピュサーブの間で訴訟の必要が生じた場合は、コンピュサーブが
指定する裁判所を会員とコンピュサーブの専属的合意管轄裁判所とします。
第15条(COMPUSERVE AGREEMENT)
会員はコンピュサーブが規定する「COMPUSERVE ONLINE INFORMATION SERVICE
AGREEMENT」に合意することに同意します。
付則 この規約は平成7年9月11日から実施します。
-COMPUSERVE ONLINE INFORMATION SERVICE AGREEMENT TERMS-
Member is a party to this Member Agreement with CompuServe Incorporated.
CompuServe Incorporated is a United States corporation organized under
the laws of the State of Ohio, USA. The address of CompuServe's
worldwide headquarters is 5000 Arlington Centre Boulevard, Columbus, Ohio
(USA) 43220.
Some beginning points to understand:
A. WHO MAY USE THE SERVICE -- SUPERVISION.
Using the Service requires that you be a Member of the Service, or that
you have permission of a Member to use that Member's CompuServe account.
Even if you are not yourself a Member, you still must comply with these
terms if you gain access to or use the Service. In fact, Member agrees
to supervise and be fully responsible for all use by others of the
Member's CompuServe account. (More on this in the terms below.)
B. ABOUT COMPUSERVE MEMBERSHIP AND ACCOUNTS.
A "Member" is a person who, being at least 18 years of age, has agreed to
this Member Agreement, is legally able to enter into contracts and whose
name and other necessary billing and identifying information are
reflected on CompuServe's records as the person responsible for a
particular CompuServe account. Note that an "account" is simply a means
of access to the Service that is recognized by CompuServe as such with an
associated account number, billing information and Member name. (More on
this in the terms below.)
C. PRICING AND BILLING DETAILS.
Please pay close attention to the terms referred to below regarding
pricing and billing information. Some of these terms are located in a
separate document on the Service but nevertheless make up an important
part of this contract -- they are in a separate document (or documents)
for the sake of convenience and also because they contain pricing and
billing options and plans that you may choose from or that otherwise
simply might not apply to or be available to each and every Member.
D. CHANGES.
Also pay close attention to the terms below regarding changes to both the
Service and this Member Agreement that are possible from time to time
since these changes can affect the contract rights and obligations
between you and CompuServe and can also affect the makeup and nature of
the Service itself. This Member Agreement, including any later
modifications, will be available online for later reference (e.g., GO
RULES).
E. YOUR RIGHT TO CANCEL.
Please note that although these terms provide CompuServe with significant
flexibility and discretion in the operation of the Service, they also
provide the Member with the right to cancel the Member's account at any
time -- although certain procedures must be followed to do so validly.
(More on this in the terms below.)
The rest of the terms of this Member Agreement are organized into five
"Parts" for easier reference:
Part I -- The Service, Membership and This Member Agreement;
Part II -- Payment;
Part III -- Permitted Use and Restrictions on Use;
Part IV -- Grant of Important Rights by Member to CompuServe, and
Important Disclaimers to, Acknowledgments by and
Obligations of Member; and
Part V -- General (Note: Although located at the end of this
Member Agreement, these terms are important.).
PART I
THE SERVICE, MEMBERSHIP AND THIS MEMBER AGREEMENT
1. THE SERVICE
The CompuServe information service (the "Service") consists of (A)
computing services, information-related services, software, information
and other content provided by CompuServe, as well as (B) access to
services, software,information and other content provided by parties
other than CompuServe (collectively, "Acquired Material").
2. MODIFICATIONS; RIGHTS OF CANCELLATION OR SUSPENSION
2.1 MODIFICATION OF THIS MEMBER AGREEMENT.
Upon notice published over the Service, CompuServe may at any time modify
this Member Agreement, including, without limitation, pricing and billing
terms.
2.2 MODIFICATION OF THE SERVICE.
CompuServe may discontinue, add to or revise any or all aspects of the
Service in its sole discretion and without notice, including access to
support services, publications and other products or services ancillary
to the Service or membership. In particular, CompuServe specifically
reserves the right in its sole discretion to modify, supplement, delete,
discontinue or remove any software,file, publications, information,
communication or other content appearing on or transmitted through the
Service.
2.3 TERMINATION BY MEMBER.
Member is free, if CompuServe modifies this Member Agreement, the Service
or related pricing or billing terms, to immediately terminate Members
account and this Member Agreement, and Member may also do so at any other
time and for any reason or for no reason. Member shall carry out any
termination, however, in accordance with the method or methods
established by CompuServe; failure to do so may delay or prevent
CompuServe from knowing that a termination was intended. Instructions
for cancellation are provided online (e.g., GO CANCEL).
2.4 TERMINATION OR SUSPENSION BY COMPUSERVE.
CompuServe may terminate the Member's account and this Member Agreement
in the event of any breach of this Agreement by Member or a user of
Member's account. CompuServe reserves the right in its sole discretion to
terminate the Member's account and this Member Agreement at any time or
to suspend (with or without notice) or terminate access to or use of the
Service, in whole or in part, with respect to any Member (and/or with
respect to any user of Member's account) at any time. Unless CompuServe
has determined there is a breach, then CompuServe shall be required to
provide 30 days notice of termination.
2.5 CONTINUATION OF OBLIGATIONS.
Notwithstanding any cancellation or termination of this Member Agreement
or any account, nor any suspension or termination of access to or use of
the Service, Member will remain responsible for any obligations then
accrued, including payment of any charges that may be due as of or in
connection with such actions. Member's payment and other obligations
under this Member Agreement are not suspended or affected by a suspension
of access to or use of the Service, in whole or in part, due to a
violation (actual, threatened or alleged) of this Agreement or of any law
or legal obligation by Member or any user of Member's account.
3. WHO MAY USE THE SERVICE? -- RESPONSIBILITY AND SUPERVISION
3.1 AGE AND ACCOUNT SETUP.
Member represents that Member is at least 18 years of age and has the
right and ability to enter into this Member Agreement. Member agrees
that Member is responsible for installing, establishing and setting up,
and for verifying and maintaining, the account, options, settings and
other parameters under which the Service is used, including (without
limitation) all related passwords and user identification information.
These account functions may be performed only by a person at least 18
years of age, without exception.
3.2 MULTIPLE USE OF ACCOUNT.
Multiple members of the same household as Member may share a single
Member ID number and account, if authorized by Member to use the account.
However, only one person is authorized to access the Service at any given
time through the same Member ID number or account, unless otherwise
permitted by CompuServe.
3.3. MEMBER RESPONSIBILITY.
Member shall be responsible for all access to and use of the Service
through Member's account or password(s). Permitted users of Member's
account are limited to family members with the same permanent residence
as Member. Member acknowledges that Member is aware that areas accessible
on or through the Service may contain material that is unsuitable for
minors (persons under 18 years of age). Member agrees to supervise usage
of the Service by minors who use the Service through Member's account,
including, without limitation, the use of e-mail, "chat", "conferencing,"
shopping or purchasing functions and other communications features and
the accessing, viewing and other use of the World Wide Web and all other
Internet sites, services, products, features and content. Member hereby
ratifies and confirms any obligations a minor using Member's account
enters into or assumes and any promises or permissions such minor makes
or gives.
PART II
PAYMENT
4. FEES AND PAYMENT
4.1 FEES, TAXES AND OTHER CHARGES.
Member shall pay, in accordance with the provisions of the billing option
selected by Member, any registration or monthly fees, connect time
charges, minimum charges and other amounts charged to or incurred by
Member, or by users of Member's account, at the rates in effect for the
billing period in which those amounts are charged or incurred, including
but not limited to charges for any purchases made or facilitated through
the Service and any communications charges or surcharges incurred while
using any supplemental networks or services other than the Service.
Member shall pay all applicable taxes related to use of the Service by
Member or by users of Member's account. Information on charges and
surcharges (if any) that are to be paid to CompuServe and are incurred by
Member or by users of Member's account will be made available to the
Member online, and Member agrees that this is sufficient notice for all
purposes as to charges incurred and paid or to be paid to CompuServe.
Although certain areas of the Service may be designated as free of
charge, Member acknowledges that CompuServe incurs substantial costs in
maintaining these areas. Accordingly, if in CompuServe's judgment the
Member's account reflects an excessive number of hours in such areas,
CompuServe reserves the right to charge for such excess at normal connect
time rates. Additional terms relating to pricing, billing and payment
and which are an integral part of this Member Agreement are set forth and
available online (e.g., GO BILLING; GO RATES).
4.2 COMMENCEMENT AND DURATION OF MEMBERSHIP FEES.
Member acknowledges that (subject to any exceptions granted by CompuServe
) a monthly membership fee will apply for each month (or portion thereof)
one is a Member. Membership will continue until Member cancels the
account in accordance with the method or methods established by
CompuServe (unless otherwise sooner terminated in accordance with this
Member Agreement). As provided for above, membership may be canceled by
Member at any time. The monthly membership fee shall cease to apply for
any months after the billing month in which Member duly cancels.
4.3 ANCILLARY EQUIPMENT, SERVICES.
Member is responsible for and must purchase or otherwise provide all
telephone and other equipment and services necessary to access and use
the Service.
4.4 CORPORATE BUSINESS ACCOUNTS.
If Member's account is a qualified business account and approved by
CompuServe for corporate billing, charges for the services provided under
this Member Agreement will be accumulated and identified by Member ID
number and will normally be invoiced following the end of the month in
which the service is provided. Terms of payment on all charges are net,
ten (10) days in the currency in which billed. If any payment due
hereunder is not made by the Member within thirty (30) days after the
invoice date, late charges of one and one-half percent (1 1/2%) per month
shall be due and payable with respect to such payment, and CompuServe
may, in addition, at its sole discretion and without notice to the
Member,
(a) suspend its performance under this Member Agreement and the Member's
and its designated users' access to and use of the Service, or
(b) terminate this Member Agreementand Member's and its designated users'
access to and use of the Service. For accounts not approved by CompuServe
for corporate billing, Member must provide payment by credit card or
other billing mechanism approved by CompuServe. Notwithstanding any
acknowledgment of a Member purchase order by CompuServe, any provision or
condition in any purchase order, voucher, or other memorandum of the
Member which is in any way inconsistent with, or adds to, the provisions
of this Member Agreement is null and void.
PART III
PERMITTED USE AND RESTRICTIONS ON USE
5. SOFTWARE LICENSE
Subject to the terms of this Member Agreement, CompuServe grants to
Member a personal, non-exclusive, nonassignable and nontransferable
license to use and display the software provided by or on behalf of
CompuServe for purposes of accessing the Service ("Software") on any
machine(s) of which Member is the primary user or which Member authorizes
for use. Unauthorized copying of the Software, including software that
has been modified, merged or included with the Software, or the written
materials associated therewith is expressly forbidden. Member may not
sublicense, assign or transfer this license or the Software except as
permitted by CompuServe. Any attempt to sublicense, assign or transfer
any of the rights, duties or obligations under this license is void.
6. COPYRIGHT AND LEGAL COMPLIANCE
Copyrighted material may not be placed on the Service without the
permission of the owner(s) or person(s) they specifically authorize to
give such permission. Only the owners themselves, plus any persons so
authorized, may upload copyrighted material to the Service.
Member may download copyrighted material for Member's own
use. Except as expressly provided for by copyright law,
copying, distribution, display, performance, modification
and publication of copyrighted material must be with the
express permission of CompuServe and the owner(s) or such
authorized person(s), if the owner is other than CompuServe.
Permission must be specified in a document or on the Service,
and must be obtained directly from CompuServe and the owner(s)
or such authorized persons(s), if the owner is other than
CompuServe. In any use of copyrighted material, any changes
to or deletion of author attribution or copyright notice
are prohibited. Software or tools downloaded or otherwise
available through access to or use of the Service may not be
reverse engineered or otherwise tampered with unless specifically
authorized by the owner of the rights in the software or tools.
Any Member may upload public domain material to the Service.
Any Member may download public domain material for Member's own
use or non-commercially redistribute such public domain material.
Member is responsible for and assumes all risks regarding the
determination of whether material is in the public domain.
7. SPECIFIC RESTRICTIONS ON USE OF THE SERVICE
7.1 PROHIBITED CONDUCT.
Member agrees not to upload, post or otherwise publish on or over the
Service, and not to seek on or over the Service, any software, file,
information, communication or other content:
(a) which violates or infringes upon the rights of any other;
(b) which, under the circumstances and in CompuServe's good faith
judgment, is, or is likely to be perceived by an intended recipient
or target as, defamatory, deceptive, misleading, abusive, profane,
offensive or inappropriate;
(c) which constitutes a threat to, harassment of, or stalking of another;
(d) which adversely affects the performance or availability of the
Service or CompuServe resources;
(e) which contains any virus, worm, cancelbot, harmful component or
corrupted data; or
(f) which, without the approval of CompuServe, contains any advertising,
promotion or solicitation of goods or services for commercial
purposes.
This Section 7.1 shall not be interpreted to restrict Member from
utilizing mail services in conducting a legitimate business except that
Member may not, without the approval of CompuServe, send unsolicited
advertising or promotional material. Member agrees not to intercept
e-mail or engage in "spamming" or any similar conduct.
7.2 ILLEGAL OR COMPETITIVE PURPOSES.
Member agrees not to use the Service nor any of its elements or related
facilities or capabilities to conduct any business or activity, or
solicit the performance of any activity, which is prohibited by or would
violate any applicable law, rule, regulation or legal obligation, nor to
solicit others to subscribe to or use competitive information services or
facilities.
7.3 COMPLIANCE WITH LAWS.
Member agrees to comply with all applicable laws, rules and regulations
in connection with the Service, its use of the Service and this Member
Agreement.
7.4 LIMITATION ON USE OF CONTENT.
Except as expressly permitted in this Member Agreement, neither Member
nor any user of Member's account may reproduce, distribute, transmit,
publish or otherwise transfer, or commercially exploit, any software,
file, information, communication or other content received or accessed
through the Service.
PART IV
GRANT OF IMPORTANT RIGHTS BY CUSTOMER TO COMPUSERVE, AND IMPORTANT
DISCLAIMERS TO, ACKNOWLEDGMENTS BY AND OBLIGATIONS OF MEMBER
8. COPYRIGHT AND LICENSES
8.1 RESERVATION OF RIGHTS BY COMPUSERVE.
CompuServe reserves all copyrights and other rights in and to any content
available through the Service and is identified as, claimed by CompuServe
as, or known by Member to be, proprietary to CompuServe (or its licensors
). The content on the Service is protected under applicable copyright
law, including as a collective work. All copying, modification,
distribution, publication or other use by Member, or by any user of
Member's account, of any such content or other works is prohibited,
except as expressly permitted by CompuServe.
8.2 GRANT OF LICENSE TO COMPUSERVE.
Each Member, and any user of a Member's account, who places or has placed
software, a file, information, communication or other content on, in,
over or through the accessible areas of the Service grants to CompuServe
(and to CompuServe's designated licensees, transferees, designees and
contractors) a non-exclusive, paid-up, perpetual and worldwide right to
copy, distribute, display, perform, publish, translate, adapt, modify and
otherwise use in connection with CompuServe's business (and that of
CompuServe's designated licensees, transferees, designees and contractors
), such software, files, information, communications and other content,
regardless of the medium, technology or form utilized by CompuServe in
exercise of this grant. Subject to this grant, each Member who places
software, files, information, communications or other content on the
Service retains any rights Member may have in such content.
9. NO ENDORSEMENT
CompuServe does not endorse or in any way vouch for the accuracy,
completeness, truthfulness or reliability of any service, opinion,
advice, communication, information or other content on or made
available through the Service. None of such content should be
construed or understood to constitute or reflect the views or
approval of CompuServe. CompuServe does not recommend that such
content be relied on for reaching important decisions or conclusions
without appropriate verification by the Member or user and, as
appropriate, professional advice.
10. INTERNET
Member acknowledges that Internet sites not created by CompuServe, and
use of the Internet, might consist of, include and/or provide access to
images, sound, messages, text, services or other content and material
that may be unsuitable for minors and that may be objectionable to many
adults. Member acknowledges that CompuServe is not responsible for any
such content or material and agrees that access to same through use of
the Service is at Member's sole risk. Member acknowledges that, when
using the Internet, Member often will be using a physical network other
than CompuServe's network, and content distinct from that available on
the Service. The reliability, availability, legality, performance and
other aspects of resources accessed through the Internet are beyond
CompuServe's reasonable control and are not in any way warranted or
supported by CompuServe or its third party contractors. Member
acknowledges that safeguards relative to copyright, ownership,
appropriateness, reliability, legality and integrity of content may be
entirely lacking with respect to the Internet and content accessible
through it. Member confirms that Member assumes all risk and liability
of any use of the Internet through Member's account, including Member's
continuous compliance with the Member Agreement. This Section 10 provides
certain emphasis with respect to the Internet; it shall not be construed
to imply obligations on CompuServe regarding other matters pertinent to
this Member Agreement.
11. USE AND CONTROL OF INFORMATION; MEMBER COMMUNICATION; ADS
CompuServe may, without obligation, liability or notice, except to the
extent prohibited by applicable law, distribute, loan, sell or otherwise
share with other persons or entities user lists as well as aggregate
information. Aggregate information includes information constituting or
descriptive of demographic information, habits, usage patterns,
preferences, survey data or other descriptive or related data which do
not rely on providing to recipients the identity of any particular user
of the Service. This shall not be construed to limit CompuServes use of
other information not addressed in this Section 11. CompuServe will be
free, in its reasonable good faith discretion and without notice, to
provide Member and user information and records to the courts, law
enforcement agencies, or others involved in prosecuting claims or
investigations for conduct or conditions alleged or believed to be
illegal or to violate or threaten the rights of any person or entity, and
to maintain and use internally such information and records. Information
generated by or in connection with CompuServe's administration of the
Service shall be and remain the exclusive property of CompuServe.
CompuServe may also from time to time provide online, telefax, telephone,
email, mail and other communications to its Members and users on matters
pertaining to the Service, its features, its sponsors or its use without
compensation to them or reimbursement of costs for doing so, but shall
do so reasonably and in good faith. Member acknowledges that
communications with CompuServe, its representatives and its contractors
may be monitored or reviewed for quality control and other reasonable
business purposes. Member also acknowledges that advertising and
promotion may occur on the Service and also that neither Member nor any
user shall in any event have any claim with respect to any proceeds from
such activities.
12. DISCLAIMER OF WARRANTIES AND EXCLUSION OF LIABILITY
12.1 DISCLAIMER OF WARRANTIES, LIABILITY AND RESPONSIBILITY.
MEMBER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT MEMBER'S SOLE RISK.
NEITHER COMPUSERVE NOR ANY OF ITS INFORMATION OR CONTENT PROVIDERS,
SERVICE PROVIDERS, LICENSORS, EMPLOYEES OR AGENTS WARRANT THAT THE
SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES COMPUSERVE OR ANY
OF ITS INFORMATION OR CONTENT PROVIDERS, SERVICE PROVIDERS, LICENSORS,
EMPLOYEES OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED
FROM USE OF THE SERVICE. THE SERVICE IS DISTRIBUTED ON AN "AS IS" AND
"AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
OTHERWISE, EXCEPT FOR THOSE WARRANTIES, IF ANY, WHICH ARE IMPLIED BY, AND
INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER, THE LAWS
APPLICABLE TO THIS MEMBER AGREEMENT.
12.2 LIMITATION OF LIABILITY.
NEITHER COMPUSERVE NOR ANY OF ITS INFORMATION OR CONTENT PROVIDERS,
SERVICE PROVIDERS, LICENSORS, EMPLOYEES OR AGENTS SHALL BE LIABLE FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING
OUT OF USE OF THE SERVICE OR INABILITY TO USE THE SERVICE OR OUT OF ANY
BREACH OF ANY REPRESENTATION OR WARRANTY. WITHOUT IN ANY WAY LIMITING
THE FOREGOING, COMPUSERVE SHALL IN NO EVENT HAVE, IN THE AGGREGATE, ANY
LIABILITY WHATSOEVER IN CONNECTION WITH THIS MEMBER AGREEMENT IN EXCESS
OF AN AMOUNT EQUAL TO THREE TIMES THE FEES OWED COMPUSERVE HEREUNDER FOR
THE MONTHLY BILLING PERIOD IMMEDIATELY PRECEDING THE DATE OF THE FIRST
CLAIM HEREUNDER ALLEGING LIABILITY.
12.3 APPLICABILITY OF PROVISIONS TO CIRCUMSTANCES INVOLVING OTHERS.
MEMBER EXPRESSLY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION
12 SHALL ALSO APPLY TO ANY AND ALL CLAIMS RELATING TO "ACQUIRED MATERIAL"
AND ANY OTHER CONTENT AVAILABLE THROUGH THE SERVICE. MEMBER AGREES THAT
IT WILL NOT IN ANY WAY HOLD COMPUSERVE RESPONSIBLE FOR ANY SELECTION OR
RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION
WITH THE SERVICE (INCLUDING THOSE WITH WHOM COMPUSERVE CONTRACTS TO
OPERATE VARIOUS AREAS ON OR FEATURES OF THE SERVICE).
12.4 FULL APPLICABILITY.
THE FOREGOING EXCLUSIONS OR LIMITATIONS OF LIABILITY APPLY REGARDLESS OF
ANY ALLEGATION OR FINDING THAT A REMEDY FAILED OF ITS ESSENTIAL PURPOSE,
REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING,
WITHOUT LIMITATION, NEGLIGENCE) AND EVEN IF COMPUSERVE OR OTHERS WERE
ADVISED OR AWARE OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR
LIABILITY.
12.5 POSSIBLE EXCEPTIONS.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MIGHT NOT APPLY
TO THAT EXTENT.
13. INDEMNITY
Member agrees to indemnify CompuServe against all claims, liability,
damages, costs and expenses, including but not limited to reasonable
attorneys fees, arising out of or related to any and all use of Member's
account. This includes, without limitation, responsibility for all such
consequences of Members (or that of any user of Member's account)
violation of this Member Agreement or placement on or over, or retrieval
from or through, the Service of any software, file, information,
communication or other content.
14. THIRD PARTY BENEFICIARIES
The provisions of Sections 7.4, 12 and 13 are for the benefit of
CompuServe and its respective contractors, information or content
providers, service providers, licensors, employees and agents; and each
shall have the right to assert and enforce such provisions directly on
its own behalf.
PART V
GENERAL
15. LIMITS ON TRANSFERS; OTHER LIMITS
Unless otherwise agreed in writing, Member's right to use the Service, or
to designate other users of its account, is not transferable and is
subject to any limits established by CompuServe, or by Member's credit
card company or other billing institution, as applicable.
16. CHOICE OF LAW
This Member Agreement is made in the State of Ohio. This Member
Agreement and all of the parties respective rights and duties in
connection herewith shall be governed by and construed in accordance with
the laws of the United States of America and, excluding conflicts rules,
of the State of Ohio. Any cause of action of Member, or by users of
Member's account, with respect to the Service or this Member Agreement
must be instituted within one year after the claim or cause of action has
arisen or be barred. The United Nations Convention on Contracts for the
International Sale of Goods does not apply to this Member Agreement and
it is acknowledged that this is a services contract and not a contract
for the sale of goods. Member agrees that this Member Agreement is set
forth in the English language for the mutual convenience and benefit of
the parties.
17. CONSTRUCTION AND DELEGATION
Neither the course of conduct between parties nor trade practice shall
act to modify the provisions of this Member Agreement. CompuServe may
authorize or allow its contractors and other third parties to provide to
CompuServe and/or to Member services necessary or related to making the
Service available and to perform obligations and exercise rights of
CompuServe under this Member Agreement, and may collect payment on their
behalf, if applicable. The provisions of Sections 8, 9, 11, 12, 13, 14,
16, 17, 18 and 19, and all other provisions hereof which by their nature
should continue, shall survive any termination of this Member Agreement.
18. MISCELLANEOUS
Where notification by CompuServe is contemplated by or related to this
Member Agreement, notice may be made by any reasonable means, including,
but not limited to, email or publication over the Service. If any term
of this Member Agreement is found by a court of competent jurisdiction to
be invalid, illegal or unenforceable, it shall be construed in such a way
as to eliminate the offending aspects while still giving as much effect
as possible to the intentions of such term. If this cannot be done and
the entire term is invalid, illegal or unenforceable and cannot be so
repaired, then the term shall be considered to be stricken from this
Member Agreement as if it had not been included from the beginning.
In any such case, the balance of this Member Agreement shall remain in
effect in accordance with its remaining terms notwithstanding such
invalid, illegal or unenforceable term. CompuServe may enforce or
decline to enforce any or all of the terms of this Member Agreement in
its sole discretion. In no event shall CompuServe be required to
explain, comment on, suffer liability for or forfeit any right or
discretion based on its enforcement, non-enforcement or consistency of
enforcement of these terms. Captions used in this document are for
convenience only and shall not be considered a part of this Member
Agreement or be used to construe its terms or meaning.
19. ENTIRE AGREEMENT
This Member Agreement, as published over the Service, as well as the
additional online documents specifically referred to herein as being a
part of this Member Agreement, constitute the entire and only agreement
with respect to the subject matter hereof (collectively, the "Member
Agreement") between CompuServe and Member, applicable also to all users
of Members account. This Member Agreement supersedes all
representations, proposals, inducements, assurances, promises,
agreements and other communications with respect to the subject matter
hereof except as expressly set forth in this document. By executing the
online sign-up procedure, Member agrees to the terms and conditions of
this Member Agreement. This Member Agreement can be amended only in the
manner expressly provided for in this Agreement.
[END OF AGREEMENT]
Rev. 9/17/96 [60917mem.ag]