1. Introduction
Prodigy Communications Corporation (the "Company") is the operator of the
Prodigy Internet service (the "Service"). The Service is an interactive
information, communication and transaction service, used by connecting your
receiving and transmitting equipment (normally a personal computer with a modem
connected to your telephone line) to the Company's network of telecommunications
and computer facilities. In addition to communication, information and
transaction services, the Service provides access to the Internet by means of
the software programs provided by the Company and its suppliers. By completing
enrollment and accepting all of the terms of this Agreement, you become an
authorized user (a "Member") of the Service. Continued acceptance of this
Agreement is a condition of membership. If you do not wish to be bound by this
Agreement, please do not enroll. The Company may change this Agreement at any
time, and changes are effective upon notice to Members. If you do not accept the
change, you must immediately terminate your use of the Service. By continuing to
use the Service, you accept each change. The Company may at any time, without
notice or liability, change, eliminate or restrict the use of, any features or
functions of the Service or limit or change the operation of any feature or
function of the Service.
Any information, products and services available on or through the Internet,
other than information, products and services clearly identified as being
supplied by the Company, are provided by other Internet users or independent
providers ("Third Party Providers"), and each Third Party Provider owns,
maintains and supports its information, products and services. The availability
and contents of an Internet site are the responsibility of the Third Party
Provider of such site. You acknowledge that portions of the Internet may contain
language, pictures or other materials which some individuals may find offensive,
inflammatory, of an adult nature, or otherwise objectionable. Such contents are
the sole responsibility of the applicable Third Party Provider. The Company has
no responsibility for or control over such materials and disclaims any and all
liability for, and knowledge of, their contents. Your access to such materials
is at your own risk. It is your responsibility to use as you see fit Internet
access control software of your choosing to limit access to the Internet by any
minors that you may permit to use your account. Minors who access the Service
are assumed to have parental or guardian consent before accessing the Service.
2. Member Responsibilities
You are responsible for complying with all terms and conditions of this
Agreement. You must be an adult and an individual to use the Service. By
accepting this Agreement, you confirm you are an adult of at least 18 years of
age (19 or 21 where applicable). You are personally responsible for all use of
the Service under your Service account even if you allow someone else to use
your Service account. Using your Service account for illegal, fraudulent or
abusive purposes is grounds for termination of membership, and may be referred
to law enforcement authorities. You are responsible for paying for information,
products and services ordered from the Company or from Third Party Providers
through the Service. The Company is not a party to any transaction between you
and a Third Party Provider, and the purchase, payment, warranty, guarantee,
delivery, maintenance and all other matters concerning information, products and
services ordered from Third Party Providers are solely between you and the Third
Party Provider.
All member-related information that you provide to the Company must be
accurate, including your name, address, credit or charge card numbers and
expiration dates and any Service payment information. You are responsible for
keeping such information up to date. You must promptly inform the Company if you
suspect any breach of security, such as loss, theft, or unauthorized disclosure
or use of your Service account, password or any credit or charge card number
provided to the Company at enrollment. Until the Company is notified of a breach
of security (by notice given as described in Section 8), you will remain
responsible for any unauthorized use of your Service account. (Liability for use
of credit or charge cards is subject to your agreement with the card issuer.)
The National Change of Address (NCOA) service uses data
compiled from the United States Postal Service (USPS) Change of Address forms.
You acknowledge and agree that the Company may update the membership database on
a quarterly basis using the NCOA service. This will allow the Company to obtain
a change of address, and to standardize existing addresses to USPS
guidelines.
The Service is provided for your personal use only. Unless you have the
Company's express written consent, you may not resell it, in whole or part, or
otherwise commercially exploit it, or assign or transfer your membership to
anyone else. All aspects of the Service, except that portion provided by Third
Party Providers, is copyrighted property of the Company.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE COMPANY, ITS OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS FROM ANY CLAIMS, AND EXPENSES, INCLUDING
ATTORNEYS' FEES, ARISING OUT OF OR IN CONNECTION WITH: (I) ANY BREACH OF THIS
AGREEMENT BY YOU, (II) YOUR USE OF THE SERVICE, SOFTWARE PROVIDED BY THE COMPANY
AND ITS SUPPLIERS, AND THE INTERNET; AND, (III) ANY IMPROPER
OR ILLEGAL USE BY YOU OR ANYONE WHO USES YOUR ACCOUNT WITH YOUR DIRECT OR
INDIRECT PERMISSION.
3. Software License
All software provided to you by the Company, each revised version thereof,
and any beta test software that you choose to use (the "Software"), is licensed
to you by the Company only for your personal use in connecting to and using the
Service (and no other service) from within the 50 United States, the District of
Columbia, and Puerto Rico, and for no other purpose. You may use or copy it only
as instructed by the Company. Use or copying for any other purpose is prohibited
and is a breach of this Agreement. The Software files remain the property of the
Company at all times, and the Company may make changes to the number and/or
content of these files directly while you are connected to the Service. You
accept the terms of this license by using the Software. This license will
terminate upon termination of your membership. At that time, you must return the
Software to the Company or destroy it.
The Company is not responsible in any way for any computer programs or
devices intended for use in connection with the Software, the Service or the
Internet, even if such programs or devices are advertised or made available
through the Service.
You acknowledge the Software is proprietary and confidential to the Company.
This Agreement does not convey any rights of ownership to you; title to and
ownership of all rights in trademarks, service marks, patents, copyrights, trade
secrets and other intellectual property in the Software and any copy shall
remain with the Company. You shall not transfer, sublicense, copy, reverse
engineer, decompile, disassemble, translate or otherwise alter or modify the
Software.
THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND THE COMPANY DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT
WARRANT THAT THE SOFTWARE IS ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR IS
COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS. TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY OR ITS SUPPLIERS BE
LIABLE FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT
LIMITATION, LOSS OF INCOME, DATA, USE OR INFORMATION, EVEN IF THE COMPANY OR ITS
SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME
STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
None of the Software or underlying information or technology may be
downloaded or otherwise exported or re-exported (i) into (or to a national or
resident of) any country to which the U.S. has embargoed goods; or (ii) to
anyone on the U.S. Treasury Department's list of Specially Designated Nationals
or the U.S. Commerce Department's Table of Deny Orders. By downloading or using
the Software, you are agreeing to the foregoing and you are representing and
warranting that you are not located in, under the control of, or a national or
resident of any such country or on any such list. The Software and any
underlying technology may not be exported outside the United States or to any
foreign entity or "foreign person" as defined by U.S. government regulations,
including without limitation, anyone who is not a citizen, national or lawful
permanent resident of the United States. By downloading or using the Software,
you are agreeing to the foregoing and you are warranting that you are not a
"foreign person" or under the control of a foreign person.
The Software is provided with RESTRICTED RIGHTS. Use, duplication, or
disclosure by the Government is subject to restrictions as set forth in
subparagraphs (a) through (d) of the Commercial Computer Restricted Rights
clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of The
Rights in Technical Data and Computer Software clause of DFARS and in similar
clauses in the NASA FAR Supplement.
4. Fees and Payment
You are responsible for paying all fees and charges (plus applicable taxes)
associated with use of the Service under your ID, including those incurred for
premium, extra-fee features or options. By authorizing the Company to charge a
credit or charge card, or debit a bank account by electronic funds transfer for
service fees and charges, you are authorizing the Company to automatically
continue charging that card (or any replacement credit card
account if the original card is renewed, lost, stolen, or changed for any reason
by the credit issuing entity and such entity informs the Company of such new
replacement card account) or debiting that bank account during your
membership.
The Company may, upon notice required by applicable laws, at any time change
the amount of, or basis for determining, any fee or charge, or institute new
fees or charges. All fees and charges are payable in accordance with billing
terms in effect at the time the fee or charge becomes payable. Unless otherwise
stated, all amounts are in U.S. Dollars.
If you believe you have been billed in error for any
aspect of the Service, you must challenge it within 60 days of the billing date
by contacting and expressly informing Customer Service. The Company will not
issue refunds, in whole or in part, after the expiration of this 60 day
period.
5. Termination of Membership
Either you or the Company may terminate the membership at any time and
without cause. The only right with respect to dissatisfaction with any policies,
guidelines or practices of the Company in operating the Service, any change in
features or functions, or any change in the amount or type of fees and charges
associated with the Service, is for you to terminate the membership by notice to
the Company. Under our monthly plans, if after the first thirty days of your
membership you voluntarily cancel your account, no refund, including any
membership fees or portions thereof, shall be granted. Charges for premium or
extra fee features, supplemental access charges and phone company charges cannot
be refunded at any time. You will be charged for any extra fee features you
subscribe to or use during that period's billing cycle. If you enroll in a
pre-paid annual membership plan, you may cancel your plan, but you will only be
entitled to a refund as is specified under the terms and conditions of that
plan.
The Company may terminate your membership, or suspend any individual Member's
access to the Service, without notice, for conduct that the Company believes is
a violation of this Agreement or any policies or guidelines posted by the
Company on the Service, or for other conduct that the Company believes harmful
to other Members, to Third Party Providers or to the Service or the business
interests of the Company. If you file a claim against the Company, or a claim
which in any way involves the Company, then the Company may terminate your
membership. Upon termination of your membership by the Company for any reason,
you shall not establish a new membership in any Prodigy service, for five years
from the date of termination. Upon termination of your membership, the Company
shall have no obligation to notify any third parties nor shall the Company be
responsible for any damages that may result or arise out of termination of your
membership. Termination or suspension by the Company of service to a Member also
constitutes termination or suspension (as applicable) of that Member's license
to use the Software.
6. Use of the Service
You acknowledge that the Service is intended for access to and use of
electronic mail, usenet newsgroups, Internet relay chat, the Internet, and any
other proprietary or non-proprietary services that the Company makes available
to its members. You shall not use the Service to operate server programs,
including, but not limited to mail servers, IRC servers, ftp servers, or web
servers.
The Company provides the Service to you as an individual
as well as to the community of Service Members. In order to provide an
accessible network for all, Members are expected to act as part of that
community. High levels of activity on the Service reflect uses not in keeping
with community objectives. This includes, but is not limited to: the use of the
Service on an inactive basis, that is, keeping your account active and online
with the Company’s network without your actual interaction with or use of the
web browsing, interactive features, or e-mail services provided by or through
the Company; the use of your account by more than one person at a time or from
more than one location at a time; continuous and sustained excessive account
activity; and, the use of methods or automated programs to defeat systems which
limit inactivity. Due to your violations of community objectives through such
high activity, the Company may do one or all of the following: seek a
clarification of your activity patterns; automatically disconnect your session
for such violations or for a period of inactivity, which period will be within
the Company’s sole discretion; or, cancel your account. It is also not within
the purposes of the Service to use your account to run a business or commercial
enterprise (except for the limited exceptions as provided in the Personal Web
Pages guidelines), including the use of your account to host a Web server. If
you desire Internet services for business purposes, please visit
www.prodigybusiness.com or contact us at 1-888-698-HOST.
You are responsible for providing all equipment, devices and software (other
than the Software) necessary to receive the Service. The Company will provide
telephone numbers to connect to the Service. You are responsible for selecting
the best number for you, and for all telephone fees and charges associated with
the use of the telephone number you select. Use of the Service (or portions
thereof), and of specific telephone numbers, is subject to interruptions at the
Company's discretion or beyond the Company's control. Unauthorized access to the
Service, to restricted portions of the Service, or to the telecommunications or
computer facilities used to deliver the Service, is a breach of this Agreement
and a violation of law.
It is your responsibility to keep your password secret and to change it
frequently. You agree that your Service account will be used by one person at a
time. You may not use another Member's Service account without the specific
consent of that Member. Unauthorized use of another Member's Service account, or
improper solicitation of another Member's password, are grounds for termination
of your membership, and may be a violation of law.
You may not use the Service to submit, copy, upload, post, publish, transmit,
reproduce or distribute information, software, or other material which is
protected by copyright without the specific authority of the copyright owner;
doing so is a breach of this Agreement and may subject you to legal liability.
You are responsible (and could be held liable to others) for all submissions
from your Service account.
Information pertaining to Members of the Service, their e-mail address,
and/or their Service account - which the Company makes available to its Members
(for instance, Member Lists and Community Rosters) - are provided for your
personal use only. You are strictly prohibited from accessing, downloading,
printing, emailing, transferring, posting, selling, sharing, or otherwise using
any Member's information referred to in this paragraph for any non-personal,
commercial, unlawful or illegal purposes.
You are expressly prohibited from sending the same or substantially similar
unsolicited electronic mail message, whether commercial or not, to fifty (50) or
more recipients, and from posting to a newsgroup, bulletin board, or message
board, the same or substantially similar unsolicited note, whether commercial or
not, twenty-five (25) or more times per day through the use of the Service, the
Company's equipment, or in connection with any Company e-mail address, Company
domain name, or any Company trademark including the word "Prodigy." For each day
that this provision is violated, Member shall pay the Company $50.00 per day for
unintentional violations and $500.00 per day for deliberate violations. The
Company may waive all or part of the applicable charges. Neither the Company's
demand, nor payment by the Member of these charges, shall prevent the Company
from terminating the Member's membership, seeking to obtain and enforce other
legal remedies against the Member, including damages or an injunction, or
cooperating with law enforcement agencies in connection with these violations.
The failure to enforce any provision of this Agreement, including this
paragraph, shall not constitute a waiver of any or all of Company's rights,
including the right to receive compensation for such unintentional or deliberate
violations of this Agreement, regardless of when such violations occurred.
7. Information on the Service
THE COMPANY DOES NOT ENDORSE, ASSERT OR STAND BEHIND THE TRUTHFULNESS OR
RELIABILITY OF OPINIONS, ADVICE OR STATEMENTS GIVEN OR MADE BY ANYONE OTHER THAN
AUTHORIZED COMPANY SPOKESPERSONS IN ANY MANNER ON OR THROUGH THE SERVICE,
INCLUDING, WITHOUT LIMITATION, IN PUBLIC POSTINGS AREAS OF THE SERVICE. EXPERTS,
INFORMATION PROVIDERS AND "MEMBER REPRESENTATIVES" ON THE SERVICE ARE NOT
AUTHORIZED COMPANY SPOKESPERSONS.
Opinions, advice and all other information expressed by anyone on the
Service, including information providers under contract with the Company
("Information Providers") represent their own views and not those of the
Company, and should not be relied on for important personal decisions. For
individual situations, specific professional advice should be sought.
The Company will only use or disclose information specifically about you (or
your Membership) as is permitted by this Agreement, by the Prodigy Internet
Privacy Policy, or by law. Prodigy may make its membership list available to
other organizations so that they may make offers directly to you. If you do not
want your name, address, or other personally identifiable information to be
provided for such purposes, indicate your intent by going to the Mail Controls
Center in the online Member Support Center. From time to time, Prodigy may
record information about your computer, communications equipment and operating
system software (but no other non-Prodigy software). Prodigy, or other
organizations carefully selected by Prodigy, will use this information on an
individually-identifiable basis only to (i) analyze how current or future
Service features may operate on your equipment; (ii) monitor or improve the
performance of the Prodigy software on your equipment; or (iii) tell you about
enhancements and offerings that may become available to you. Prodigy may use or
disclose aggregated (not personally identifiable) information regarding Members
for any purpose.
The Service lets you share information with other Members as well as with
users of the Internet who are not Members. You agree not to use the Service to
send, store, or submit for public posting any obscene, sexually explicit, or
illegal material (including material the transmission of which violates any
applicable law) or material which violates Internet standards or customs. The
Company reserves the right (but is not obligated) to review and remove any
material submitted for display or placed on the Internet, excluding private
email. The Company may remove from the Internet any material that the Company
believes violates this Agreement, any policies or guidelines posted by the
Company on the Service or any Internet standards or customs, or is harmful to
other Members, to Third Party Providers, or to the Service or the business
interests of the Company. You are responsible for material sent through or
displayed on the Service under your Service account, even if a claim should
arise after termination of your membership.
The Company will comply in all respects with the Electronic Communications
Privacy Act of 1986, as amended, ("ECPA") relating to private e-mail sent or
received through the Service, as well as other personal information members have
provided. The Company will not inspect the contents of private e-mail, or
disclose their contents to anyone other than the writer or an intended
recipient, without the consent of either the writer or an intended recipient,
except as permitted or required by law. The Company may establish time limits
and/or other criteria under which private e-mail will be automatically removed
from your online mailbox. The Company will have no responsibility for retaining
or delivering private e-mail that are located in a Member's online mailbox at
the time of that Member's suspension or termination, or that are addressed to
such Member thereafter. Subject to the subpoena, warrant and court order
provisions of ECPA, the Company must provide member information to the proper
authorities.
A "public postings area" of the Service is any area where Members may submit
material ("Submissions") for viewing by other Members or by non-Members using
Internet facilities, and view Submissions by other Members or by non-Members
using Internet facilities, including but not limited to, bulletin boards or chat
rooms, and similar Internet facilities, even if such area is not available to
all Members. You agree to use public postings areas only in accordance with this
Agreement, any policies and/or guidelines for the area that are displayed on the
Service and Internet standards or customs.
You may not submit copyrighted material to public postings areas without the
specific authority of the copyright owner; doing so is a breach of this
Agreement and may subject you to legal liability. BY SUBMITTING MATERIAL TO A
PUBLIC POSTINGS AREA, YOU AGREE TO INDEMNIFY THE COMPANY, AND ITS INFORMATION
PROVIDERS, THEIR EMPLOYEES AND CONTRACTORS, AND HOLD THEM HARMLESS FROM ALL
CLAIMS, INCLUDING CLAIMS FOR LIBEL AND SLANDER, ARISING FROM THE SUBMISSION.
Remember: You are responsible (and could be held liable to others) for all
submissions from your Service account. Neither the Company nor its Information
Providers shall be responsible or have any liability for material displayed in a
public postings area unless posted by its authorized spokesperson. Experts,
Information Providers and "Member Representatives" are not authorized Company
spokespersons.
By submitting material to a public postings area you are irrevocably granting
the Company permission to do anything the Company may choose with all parts of
the Submission, as if it were in the public domain, including modifying it or
using it commercially and authorizing others to do so. You are also irrevocably
granting everyone else (including non-Members) permission to reproduce and/or
redistribute all or parts of your Submission in any form for non-commercial
purposes. In addition, anyone is free to use information contained in a
Submission for any purpose, at their own risk.
The Company may establish time limits and/or other criteria under which
Submissions will be automatically removed from public display. The Company has
the right, but is not obligated, to maintain archives of Submissions, regardless
of whether they were actually posted on the Service, and the Company may use or
disclose archived Submissions in any manner it deems appropriate.
8. Notices
The Company may give notices to Members by electronic mail through the
Service, by a general posting on the Service, or by conventional mail. Notices
by Members to the Company must be given by calling telephone number
1-800-213-0992 or sending electronic mail to: PICONTENT@prodigy.net. A
notice by a Member to the Company will not change the terms of this Agreement,
or the terms of any Company policy or guideline, unless the change is expressly
accepted in writing by an authorized officer of the Company. Customer Care
representatives (including supervisors) are not authorized to accept such
changes.
9. Disclaimers
DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY YOU EXPRESSLY AGREE THAT
YOUR USE OF THE SERVICE, SOFTWARE AND INTERNET IS AT YOUR SOLE RISK. THE SERVICE
IS MADE AVAILABLE ON AN "AS IS," "AS AVAILABLE" BASIS. NEITHER THE COMPANY NOR
ANY SUPPLIER, LICENSOR, EMPLOYEE, AGENT, OR CONTRACTOR MAKES ANY WARRANTY
WHATSOEVER REGARDING THE SERVICE OR THE INTERNET, ANY INFORMATION, SERVICES OR
PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE SERVICE OR THE INTERNET
(INCLUDING WITHOUT LIMITATION THE COMPANY SOFTWARE LICENSED HEREUNDER), OR ANY
RESULTS TO BE OBTAINED THROUGH THE USE THEREOF, AND THE COMPANY HEREBY EXPRESSLY
DISCLAIMS ON BEHALF OF ITSELF AND ALL SUPPLIERS ANY AND ALL WARRANTIES,
INCLUDING WITHOUT LIMITATION: (1) ANY WARRANTIES AS TO THE AVAILABILITY,
ACCURACY, SECURITY, OR CONTENT OF INFORMATION, PRODUCTS, OR SERVICES; AND (2)
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SOME
STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION
MAY NOT APPLY TO YOU.
ANY LIABILITY OF THE COMPANY, ITS SUPPLIERS, LICENSORS, EMPLOYEES, AGENTS, OR
CONTRACTORS, INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR DAMAGES CAUSED OR
ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION,
DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS,
COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO,
ALTERATION OF, OR USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS
BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE STRICTLY
LIMITED TO THE AMOUNT PAID TO THE COMPANY BY OR ON BEHALF OF THE MEMBER FOR
SERVICE MEMBERSHIP FEES (EXCLUDING FEES FOR SEPARATELY CHARGED EXTRA FEE
FEATURES OR OPTIONS) IN THE 12 MONTHS PRIOR TO THE CLAIMED INJURY OR DAMAGE.
IN NO EVENT SHALL THE COMPANY, ITS SUPPLIERS, LICENSORS, EMPLOYEES, AGENTS,
OR CONTRACTORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE, SOFTWARE OR
INTERNET, OR ANY BREACH OF ANY WARRANTY. SOME STATES DO NOT ALLOW THE LIMITATION
OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
10. Miscellaneous
This Agreement, the Interactive Features Guidelines, the Prodigy Internet
Privacy Policy, and Personal Web Pages Guidelines, which you accept by enrolling
in the Service, contains the entire agreement between you and the Company
regarding use of the Service and the Software, and may be amended at any time
upon notice from the Company to you. The provisions of this Agreement will
continue in effect even after termination of your membership. This Agreement
will be governed by and interpreted under the laws of the State of New York,
without regard to its conflict of law rules.
11. Legal Notices
As required by California Civil Code Section 1789.3, this notice is to advise
you of the following:
