IVS NETWORK ON-LINE SERVICE AGREEMENT
1. The Service. The DWANGO Network On-line Service (the "Service") consists of computing network services and software and other content provided by Interactive Visual Systems Corporation ("IVS"), as well as access to services, software, information and other content provided by third parties (collectively, "Third Party Content"). These terms constitute the entire and only agreement (collectively, the "Service Agreement") between IVS and member (one who has an account with IVS for the Service), with respect to the Service and supersede all other communications and agreements with regard to the subject matter hereof.
2. Modification of Service Agreement. Upon notice published over the Service, IVS may modify this Service Agreement, (including the Operating Rules) or prices, and may discontinue or revise any or all other aspects of the Service in its sole discretion and without prior notice. Notwithstanding any acknowledgment of a member purchase order by IVS, 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 Service Agreement is null and void. Neither the course of conduct between parties nor trade practice shall act to modify the provisions of this Service Agreement.
3. Use Not Transferable. Unless otherwise agreed, member’s right to use the Service or to designate users is not transferable and is subject to any limits established by IVS, or by member’s credit card company if billing is through a credit card.
4. Indemnification. Member agrees to indemnify IVS, and its representatives, respective contractors, information providers, licensers, employees, and agents against liability for any and all use of member’s account.
5. Responsibility for Access to Service. Member is responsible for and must provide all telephone and other equipment and services necessary to access the Service.
6. Charges for Usage. Member shall pay, in accordance with the provisions of the Billing Option selected by member, any registration or monthly fees, usage charges, minimum charges and other charges incurred by member or its designated users at the rates in effect for the billing period in which those charges are incurred. Member shall pay all applicable taxes related to use of the Service by member or its designated users. Information on usage charges and surcharges (if any) that are incurred by a member will be made available to the member on-line. Although certain areas of the Service may be designated as free of charge, member acknowledges that IVS incurs substantial costs in maintaining these areas. Accordingly, if in IVS’ judgment the member’s account reflects an excessive number of hours in such areas, IVS reserves the right to charge for such excess (at rates reasonably reflecting the maintenance cost of such areas). Member shall be responsible for all use of the Service accessed through member’s or its designated users’ password(s). For example, member may allow individuals in its household to use the Service through member’s account. 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 whom member permits to use the Service.
7. DISCLAIMER: MEMBER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT MEMBER’S SOLE RISK. NEITHER IVS NOR ANY OF ITS INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IVS OR ANY OF ITS INFORMATION 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" 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, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS SERVICE AGREEMENT. NEITHER IVS NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICE 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 WARRANTY. MEMBER EXPRESSLY ACKNOWLEDGES THAT THE PROVISION OF THIS PARAGRAPH SHALL ALSO APPLY TO ALL THIRD PARTY CONTENT AND ANY OTHER CONTENT AVAILABLE THROUGH THE SERVICE. MEMBER AGREES THAT IT WILL NOT IN ANY WAY HOLD IVS RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICE (INCLUDING THOSE WITH WHOM IVS CONTRACTS OR ENGAGES TO OPERATE OR MODERATE VARIOUS AREAS ON THE SERVICE).
8. License to Use DWANGO Client Software. Subject to the terms of this Service Agreement, IVS grants to member a personal, non-exclusive, non asignable and nontransferable license to use and display the DWANGO Client Software ("Software") on any machine(s) of which member is the primary user. 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 IVS. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this license is void.
9. Governing Law. This Service Agreement is made in Texas, and shall be governed by and construed in accordance with the laws of the United States of America and of the State of Texas. Any cause of action of member or its designated users with respect to the Service must be instituted within one year after the claim or cause of action has arisen or be barred .
10. Transferability, Severability, and Survival of Terms and Obligations. IVS may authorize or allow its contractors and other third parties to provide to IVS and/or to member services necessary or related to making the Service available and to perform obligations and exercise rights of IVS under this Service Agreement, and may collect payment on their behalf, if applicable. If any provision of this Service Agreement is determined to be invalid, all other provisions shall remain in full force and effect. The provisions of paragraphs 2, 4, and 7 and all obligations of and restrictions on member and its designated users shall survive any termination of this Agreement.
11. Internet Services Distinguished. Member acknowledges that, when using the Internet, member is using a completely different physical network than IVS’ DWANGO network and different content than that normally available on the Service. The reliability, availability and performance of resources accessed through the Internet are beyond IVS’ control and are not in any way warranted or supported by IVS or its third party contractors. Member acknowledges that safeguards relative to copyright, ownership, decency, reliability and integrity of content may be entirely lacking with respect to the Internet and content accessible through it. Member assumes all risk and liability of its use of the Internet, including member’s continuous compliance with the Service Agreement.
12. IVS Copyright. The tradesman "DWANGO", the DWANGO Network and the DWANGO Client Software are protected under applicable copyright law. The copying, redistribution, or publication by member of any such content or any part of the Service is prohibited, except as expressly provided herein.
13. Uses of the Service. Member agrees not to use the facilities and capabilities of the Service to conduct any business or activity or solicit the performance of any activity which is prohibited by law or to solicit members to become members of other competitive on-line services. Member agrees to comply with all applicable laws, rules and regulations in connection with the Service or the Service Agreement.
14. Service Termination. IVS reserves the right in its sole discretion to suspend or terminate Service to any member at any time.
15. Use of Account. Multiple members of the same household may share a single User ID number account. However, only one person is authorized to access the Service at any given time on one User ID number account. Creation, use and/or maintenance of more than one User ID number account by a member is strictly prohibited. Use of a DWANGO Network account for the purpose of harassment, sabotage, or any unlawful activity (be it intentional or otherwise) is strictly prohibited. Such activities include, without limitation, hacking (i.e. attempts to log onto accounts, systems, or to access information with authorization; or attempts to create, obtain, compile, execute, or distribute programs, scripts or instructional material of a malicious and/or destructive nature).