PC Advisor 1998 May/PC Advisor Issue 32 (May 1998).ISO/csi26uk/winsign.lib/TERMS.TXT

Text File | 1997-03-20 | 24KB | 398 lines

MEMBER AGREEMENT
For the CompuServe(r) Online Service ("the Service")


Agreement between you (the Member) and CompuServe Incorporated ("CompuServe").
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.
These terms and any Operating Rules (GO RULES) and pricing and billing details
published over the Service constitute the entire and only agreement (the
"Member Agreement").  If you agree with each term please click on "Agree"
below, or use such other method to indicate your agreement as may be
presented.  Agreement to these terms is required for Membership in the
Service.  If you do not agree with any of these terms then your sign-up or
further use of the Service cannot proceed since agreement to these terms by
all Members is very important to an orderly operation of the Service.

A "Member" is a person or entity who, being at least 18 years of age (if an
individual), 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 or entity
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.)


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.  It is Member's
responsibility to review from time to time and stay familiar with this Member
Agreement.

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 Member's 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 (as a matter of right and without
formality) 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.  Except in cases where
CompuServe has determined there is a breach, 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, for example, payment of any
charges that may be due as of or in connection with such actions, and
responsibility for any monthly membership fee for  the billing month in which
cancellation or termination occurs.  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.  Except as specifically
provided for in this Member Agreement, neither CompuServe nor Member shall
have any obligation whatsoever to the other after any cancellation or
termination of this Member Agreement.

3.  MEMBER RESPONSIBILITY.

Member shall be responsible for all access to and use of the Service through
Member's account or password(s).  Member agrees, in particular, to supervise
usage of the Service by minors who use the Service through Member's account.

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.  Member agrees to notify CompuServe as promptly as is reasonably
possible of any objections Member has regarding membership fees or any other
billing or pricing matters.

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.

5.  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 paragraph 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.

6.  COMPLIANCE WITH LAWS, OTHER RULES.

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.
Member is responsible for reading and paying appropriate attention to
warnings, notices and instructions presented in various areas of the Service,
and shall also comply with any other rules and restrictions presented in
various areas of the Service pertaining to access to or use of such areas.

7.  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.

8.  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.

9.  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.

10.  COPYRIGHT AND LICENSES.

10.1.  RESERVATION OF RIGHTS BY COMPUSERVE.  CompuServe reserves all
copyrights and other rights in and to any content available through the
Service and which 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.

10.2.  GRANT OF LICENSE TO COMPUSERVE.  Each Member, and any user of a
Member's account, who places or has placed software, a file, information, a
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 associated with its online business) a
non-exclusive, paid-up, perpetual and worldwide right to copy, distribute,
display, perform, translate, adapt, modify (but only to the extent necessary
or useful to deliver or present such content consistent with the technical and
presentation standards used by CompuServe from time to time) and otherwise use
in connection with CompuServe's online business (and the business of
CompuServe's designated licensees, transferees, designees and contractors
insofar as such business is associated with CompuServe's online business),
such software, files, information, communications and other content,
regardless of the medium, technology or form utilized in exercise of this
grant.  Each Member who places software, files, information, communications or
other content on the Service retains any proprietary rights Member may have in
such content, and the license granted under this paragraph shall not be
construed as a conveyance of such proprietary rights to CompuServe.

11.  CONSENT TO USE OF DATA; USE AND CONTROL OF INFORMATION;
MEMBER COMMUNICATION; ADS.

Member gives to CompuServe the consents and acknowledgments set forth in this
Section (Consent to Use of Data).  Member consents that CompuServe may, on a
worldwide basis, distribute, transfer, loan, sell or otherwise share with
other persons or entities user lists as well as aggregate information, but not
contrary to applicable law or this Section.  "User lists" includes name and
address data and other identifying data pertaining to Members and users of the
Service.  "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 disclose to
third parties the identity of any particular user of the Service.

Member acknowledges that user lists and aggregate information may be used for
directing commercial or promotional communications to Member, users of Members
account or others and for any similar commercial or promotional purposes.  If
Member does not want user list data pertaining to Member (or to other users of
Member's account) used for such commercial or promotional purposes, including
by way of the sale of such data to others, then Member may opt out of such
participation during the sign-up process for the Service or at a later date
through procedures made available by CompuServe for that purpose (e.g.,
GO MEMBER), and CompuServe shall honor such decisions.

Member has a right to receive from CompuServe, through written request or
other procedures established by CompuServe for such purpose, the user list
information maintained by or on behalf of CompuServe pertaining to Member and
users of Member's account, as well as to have any errors in such data
corrected.  Member consents that both user lists and aggregate information may
be collected directly from Members or other users, may also be derived from
their access to or use of the Service and, consistent with this Section
(Consent to Use of Data), may be obtained, stored, distributed and otherwise
managed by CompuServe as well as its affiliates, suppliers and contractors.

Member consents that CompuServe (itself or through its authorized affiliates
and contractors) may maintain and use user list information and other data and
records pertaining to Member and users of Member's account in the internal
operation, administration and management of the Service, and may do so in the
U.S.A. and elsewhere throughout the world.

CompuServe, in its reasonable and good faith discretion and without notice,
may 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 the administration of the
Service shall be and remain the exclusive property of CompuServe.

CompuServe may from time to time provide online, telefax, telephone, email,
mail and other communications to its Members and users on matters pertaining to
its online business, or 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.

This Section (Consent to Use of Data) shall not be construed to limit
CompuServe's use of or rights in other information not covered by the terms of
this Section.


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 PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT
REPRESENTATIONS OR 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.

SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION
OF CERTAIN WARRANTIES.  THEREFORE, THE ABOVE EXCLUSIONS OR LIMITATIONS
MIGHT NOT APPLY TO THAT EXTENT, AND NONE OF THE ABOVE SHOULD BE CONSTRUED
AS EXCLUDING OR LIMITING ANY WARRANTY BEYOND WHAT IS PERMISSIBLE UNDER
APPLICABLE LAW.

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 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 TWELVE TIMES THE FEES
OWED COMPUSERVE HEREUNDER FOR THE MONTHLY BILLING PERIOD IMMEDIATELY
PRECEDING THE DATE OF THE FIRST CLAIM HEREUNDER ALLEGING LIABILITY.
EXCLUDED FROM THIS LIMITATION OF LIABILITY IS LIABILITY DIRECTLY ARISING
OUT OF (i) A BREACH BY COMPUSERVE OF A BASIC OBLIGATION TO OFFER AN
ONLINE SERVICE AS PROVIDED FOR UNDER THIS MEMBER AGREEMENT, AND
(ii) COMPUSERVE'S KNOWINGLY ACTING TO INTENTIONALLY BREACH ITS CONTRACTUAL
OBLIGATIONS UNDER THIS AGREEMENT.

THIS SECTION (LIMITATION OF LIABILITY) DOES NOT LIMIT COMPUSERVE'S
OBLIGATION, IF COMPUSERVE MISTAKENLY OR WRONGFULLY OVERCHARGES MEMBER'S
ACCOUNT, TO REFUND SUCH OVERCHARGE PLUS INTEREST.

SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION
OF CERTAIN TYPES OF LIABILITY.  THEREFORE, THE ABOVE EXCLUSIONS OR
LIMITATIONS MIGHT NOT APPLY TO THAT EXTENT, AND NONE OF THE ABOVE SHOULD
BE CONSTRUED AS EXCLUDING OR LIMITING ANY LIABILITY BEYOND WHAT IS
PERMISSIBLE UNDER APPLICABLE LAW.

12.3.  FULL APPLICABILITY.  THE FOREGOING EXCLUSIONS AND 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, ANY FORM OF
NEGLIGENCE) AND EVEN IF COMPUSERVE OR OTHERS WERE ADVISED OR AWARE OF
THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR LIABILITY.

12.4.  APPLICABILITY OF PROVISIONS TO CIRCUMSTANCES INVOLVING OTHERS.
MEMBER EXPRESSLY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION
(DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY) SHALL ALSO APPLY
TO ANY AND ALL CLAIMS RELATING TO "ACQUIRED MATERIAL" (DEFINED ABOVE)
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).

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
Member's (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 following provisions 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: Limitation on Use of Content;
Disclaimer of Warranties and Exclusion of Liability; and Indemnity.

15.  CHOICE OF LAW; TIME FOR BRINGING CLAIMS.

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.

16.  ENTIRE AGREEMENT AND MISCELLANEOUS.

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 (and which are incorporated herein by reference),
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 Member's 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, by continuing to use the Service with knowledge of this
Member Agreement or by another act or indication of assent, 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.  If
any term of this Member Agreement is found by a court of competent
jurisdiction to be invalid, illegal or unenforceable, the term shall be
considered to be stricken from this Member Agreement as if it had not been
included from the beginning.

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