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Date Posted: 18:00:11 05/13/02 Mon
Author: Kay House
Subject: EZ Board Contract Clause & Action Underway

After Holly got that very reasonable response from the exec at EZBOARD, I worked up some language, but given that I'm neither a California lawyer nor a copyright lawyer, I wanted backup. Therefore:

I just posted this whole incredibly long message asking Jarndyce for an opinion. Link at bottom goes to rumor mill.

Dear Jarndyce-

I'm a legal aid lawyer out sick on long-term disability. While working on a comeback, I came across your wonderful article on fair use in the course of writing for Holly Lisle's Vision. Well done!

The Holly Lisle Community is now considering establishing a "back up" community presence on EZBOARD, apparently located physically in California and governed by a California Terms of Service agreement. Since we post works intended for publication, naturally paragraph 5 of the terms of service came as a nasty shock to us.

However, an EZBOARD Exec replied to Holly's question about whether there might be room for negotiation on this point in the affirmative. Accordingly, I've written up an addendum, being concerned in this matter myself, but I am not at all trained in Patent, Copyright, Trademark or other intellectual property law. Also, when my health permitted (up to last Oct) I practiced only in NC. I'd rather not be the ONLY lawyer looking at this thing. How would you feel about taking a look? We would all be grateful for any light you may be able to shed on this situation.

Here are the terms of service:

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1. ACCEPTANCE OF TERMS
By clicking the "I Accept" button below, you agree to be bound by the terms of this Agreement and any modifications made to it in accordance with Section 19 below.

2. THE EZBOARD SERVICE
The ezboard Service is an online application, enabling businesses and individuals to build, join and participate in customized and personalized discussion groups. You understand and agree that the Service is provided "AS-IS" and that ezboard assumes no responsibility for, among other things, (1) any service outages or interruptions (2) the unavailability of particular boards, features or services, (3) the inability to access the Service, (4) the failure or inability to post materials to the Service, (4) the deletion of materials posted to the Service or (5) the failure to store materials posted to the service.

3. REGISTRATION
To take advantage of the Service's full capabilities users must register with ezboard. You may register as a Global User at http://www.ezboard.com/create_join.html. You may register as a Local User by clicking on the Register Your Free Account link on any ezboard, then clicking on the Create a Local Account link. If you choose to register, you agree that you will supply ezboard with the information requested in the registration process, ensure that the information supplied is accurate, and update the information as necessary to ensure that it remains accurate. Information supplied in the registration process, as well as other information provided to ezboard during your use of the Service is governed by ezboard's privacy policy that can be viewed at http://www.ezboard.com/about_privacy.html. During the registration process, you will be asked to select a password for your individual account. Your password will not work until you have validated your account by responding to the email you will receive following registration. You are solely responsible for maintaining the confidentiality of your password. You agree that anyone with whom you share your password will abide by this Agreement, and that you will be liable for the conduct of those using your account and password. You are encouraged to and may change your password at any time by visiting The Security Options menu of the ezboard tab of your Control Center screen. If you learn of any unauthorized use of your account or password, you agree to notify ezboard immediately via email to legal@ezboard.com.

4. CONTENT ACCESSIBLE ON THE SERVICE
The ezboard Service contains a huge variety of information, data, messages, directions, computer programs, pictures, audio/visual works and other materials (the "Content") that users post. Please use caution and common sense when viewing ezboard communities. You understand and agree that any Content posted on the Service is the exclusive responsibility of the person who posted or uploaded it, and that you will be solely responsible for any Content that you upload, post, email or otherwise transmit via the Service. You acknowledge that ezboard is not responsible for, does not control, does not endorse and does not verify the Content posted to the Service or available through the service, and that it makes no guarantee regarding the reliability, accuracy, legitimacy or quality of any such Content. You agree that you will bear any and all risk of reliance on the accuracy, validity or legitimacy of such Content. Under no circumstances will ezboard be liable in any way to you for any Content, including, but not limited to, any errors or omissions in any Content or any loss or damage of any kind incurred as a result of the use of any Content posted or otherwise transmitted via the Service.
You acknowledge that ezboard does not pre-screen Content, but agree that ezboard shall have the right (but not the obligation) to access any board, and remove or restrict access to any Content on the Service in its sole discretion and without notice or compensation. Without limiting the foregoing, ezboard shall have the right to access any board and remove or restrict access to any Content that violates this Agreement or that ezboard believes is otherwise objectionable.
You acknowledge and agree that ezboard may preserve or disclose any Content if it reasonably believes disclosure is required by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of ezboard, its users and the public.

5. LICENSE GRANTED TO EZBOARD
You grant ezboard the world-wide, royalty free and non-exclusive license to reproduce, modify, adapt, distribute and publish any Content you post/upload/contribute to the Service, for the purposes of displaying such information on ezboard's sites and for the promotion and marketing of ezboard's services. However, ezboard will not resell, attempt to resell, or otherwise convey these rights to any third party.

6. USER CONDUCT
You agree to not use the Service to:
(a) violate or solicit the violation of any applicable local, state, national or international law;
(b) infringe the rights of any third party, including but not limited to intellectual property rights and privacy or publicity rights
(c) upload, post, email or otherwise transmit any Content that (1) is unlawful, threatening, abusive, tortious, defamatory, obscene, libelous, or invasive of another's privacy; (2) consists of instructional information on illegal activities, including, but not limited to, hacking, cracking, and phreaking; (3) violates or infringes in any way upon the proprietary rights of others, including, without limitation, copyrighted software, music, photographs, text, videos or artwork; (4) constitutes pornography, or sexual material of an obscene nature or that violates local, state or national laws; (5) is the private information of another such as their addresses, phone number, Social Security number or credit card number; (6) contains software viruses, Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (7) you do not have a right to upload or post due to contractual or other legal obligation.
(d) impersonate any person or entity, including, but not limited to, an ezboard official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(e) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(f) interfere with or disrupt the Service, computer servers or boards accessible through the Service;
(g) disseminate off-topic messages on boards promoting any product, service, web site, board or venture, or promote boards on the Service through unsolicited electronic mail messages to third parties. If you do use the Service to commit any of the above, ezboard may, at its sole discretion. terminate your password, account (or any part of it) or ability to use the Service, and remove and discard any Content within the Service.

7. MEMBER DISPUTES
You are solely responsible for your interactions with other users of the Service. ezboard reserves the right, but has no obligation, to monitor disputes between you and other users of the Service.

8. CREATION OF BOARDS
In using the Service to create or make accessible a board, you agree to use your best efforts to ensure that individuals posting Content to the board comply with Paragraph 6 of this Agreement, and agree to take action to remove or disable access to any Content on the board that violates Paragraph 6 of this Agreement.

9. COMMUNITY-SUPPORTED COMMUNITIES PROGRAM
By signing up to be a registered user or administrator under the Community-Supported Communities ("CSC") program, you agree to the following: (a) You expressly understand and acknowledge ezboard's Disclaimer of Warranties under Section 13 below and that ezboard will not be liable for any damages under this Agreement pursuant to the Limitations of Liability in Section 14 below. You expressly understand and acknowledge that the pricing reflected in the CSC program is based on the above limitations, and that the limitations in this Section 9(a) represent a reasonable allocation of risk for the parties. (b) You expressly understand and acknowledge that any fees due or paid by you under the CSC program are non-refundable in part or in whole. ezboard currently accepts payment by check, money order, PayPal, EarthPort, or credit card, and reserves the right to modify its acceptable forms of payment at any time without notice. (c) You expressly understand and acknowledge that ezboard may change your privileges as a user or administrator of the CSC program and that ezboard reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the CSC program (or any part of it) with or without notice. You acknowledge that ezboard shall not be liable to you or to any third party for any modification, suspension or discontinuance of the CSC program.

10. LIMITATIONS, CONDITIONS AND RULES REGARDING SERVICE
You agree that ezboard may establish, in its sole discretion, any limitations, conditions or rules concerning use of the Service, including, for example, the maximum number of messages a user may post to a given board or the Service in a given day, the number of days that posted messages will be available, or the maximum size of a given post. You acknowledge that ezboard has the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

11. MODIFICATION AND TERMINATION OF SERVICE
ezboard reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part of it) with or without notice. You agree that ezboard shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. You agree that ezboard, in its sole discretion, may terminate your password, account (or any part of it) or ability to use the Service, and remove and discard any Content within the Service, for any reason or for no reason, including, without limitation, for lack of use, or for violating the letter or the spirit of this Agreement. You agree that any termination of your access to the Service may be immediate and without prior notice. You further agree that ezboard shall not be liable to you or any third-party for any termination of your use or ability to access the Service. Specific reasons for such limitation or termination include, but are not limited to the following:
(a) circumventing any ezboard banner display. Subscribers to our "no-ad banner option" are exempt from this requirement. All ezboard member boards must have a link to ezboard or its related directories.
(b) using in the registration of your ezboard membership an email account that is not your own or that is or becomes inactive.
(c) reproducing, distributing, republishing or retransmitting material posted by other ezboard members without the prior permission of such members. ezboard reserves the right to take any action it deems necessary with respect to your ezboard or user account if we have reason to believe it may cause us to lose the services of our ISP or suppliers.

12. OTHER WEB SITES AND RESOURCES
Third parties using the Service may provide links or access to other web sites and resources. Because ezboard has no control over such sites and resources, you acknowledge and agree that ezboard is not responsible for the availability of such sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that ezboard shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.

13. NO RESALE, REDISTRIBUTION OR REPURPOSING OF SERVICE OR CONTENT
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, use of the Service, access to the Service or any of the Content accessible through the Service, other than Content as to which you hold the intellectual property rights.

14. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EZBOARD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) EZBOARD MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE INFORMATION THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE.

(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS OBTAINED AND USED AT YOUR SOLE| RISK AND DISCRETION AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY BY EZBOARD.

15. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT EZBOARD SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF EZBOARD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.

15. EXCLUSIONS AND LIMITATIONS [Yes, there ARE 2 paragraphs numbered "15" in the agreement. I'm not the ONLY one who makes typos. Hooray!]
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 13 AND 14 MAY NOT APPLY TO YOU.

16. INDEMNITY
You agree to indemnify and hold ezboard, and its subsidiaries, affiliates, officers, agents, employees, and contractors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post to or transmit through the Service, your use of the Service, your connection to the Service, your violation of the law, this Agreement or the rights of another.

17. NOTICES
Notices to you may be made via either email or regular mail. ezboard may also provide notices of changes to this Agreement or the Service by displaying notices or links to notices to you generally on the Service.

18. LEGAL DISPUTES
This Agreement and your relationship with ezboard shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and ezboard agree to submit to the personal and exclusive jurisdiction of the courts located within the county of San Mateo California, USA agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

19. MODIFICATION
We may amend this Agreement at any time by posting the amended terms on our site at http://www.ezboard.com/about_terms.html. All amendments shall automatically be effective 30 days after they are initially posted on our site. Your use of the Service following the effective date of any modifications shall constitute your binding acceptance of those modifications. This Agreement may not be otherwise amended except in a writing signed by an officer of ezboard. This Agreement was last modified on February 25, 2001.

20. GENERAL
This Agreement constitutes the entire agreement between you and ezboard with respect to the Service and supersedes all prior agreements and understandings between you and ezboard. ezboard's failure to enforce any provision of this agreement will not be construed as a waiver of any provision or right. In the event that a portion of this agreement is held unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions will remain in full force and effect. Paragraphs 13, 14, 15, 16 and 17 of this Agreement shall survive any termination of the Agreement. If you are a California resident, you may have a copy of this Agreement emailed to you by sending a letter to ezboard, Inc., 564 Market Street, Suite 705, San Francisco, CA 94104 Attn: Steven DeMello with your email address and a request for the Agreement.

21. OFFICIAL LANGUAGE - ENGLISH
This AGREEMENT AND THE EZBOARD site is developed in English and MAY BE translated into other languages. TO THE EXTENT A TRANSLATION OF THE AGREEMENT OR THE SITE IS PROVIDED, IT IS AFFORDED AS a convenience only. For all purposes, only the English VERSION OF THIS AGREEMENT, AND THE ENGLISH VERSIONS OF THE EZBOARD SITE SHALL BE OFFICIAL AND BINDING ON THE PARTIES. ezboard, Inc. is not responsible for the accuracy and correctness of the translation. You are solely responsible to carefully read AND UNDERSTAND the English text and YOU AGREE THAT YOU MAY NOT RELY on translations provided AS OFFICIAL DOCUMENTS OR REPRESENTATIONS.

To submit violations of our Terms of Use, click here.

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My proposed addendum appears below. Do you think it will do the trick, and allow us to use the Member Boards for critiques without giving away our ability to sell our stories and articles? IN particular, we are concerned about, for example, 1st North American Rights. What do you think?

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ADDENDUM to EZBOARD Terms of Use and Terms of Service Agreement for the Holly Lisle's Forward Motion Writers' Community:

This addendum to the EZBOARD Terms of Use and Terms of Service Agreement is entered into by Holly Lisle and EZBOARD, Inc. It modifies the terms of service for Holly Lisle and for all of the members of the Holly Lisle's Forward Motion Writers' Community as follows:

Holly Lisle's Forward Motion Writers' Community is divided into two segments, a set of "Public Boards" and a set of "Member Boards." The Public Boards are regular community bulletin boards on which individuals exchange views and information. On the Member Boards, however, authors post works being prepared for publication for criticism by other authors; Paragraph 5 of this agreement does not apply to the Member Boards of Holly Lisle's Forward Motion Writers' Community. Without in any way limiting EZBOARD's right to change other terms of service by notice as provided in Paragraph 19 of this agreement, this special addendum is an amendment in writing signed by an officer of EZBOARD, and may not be further amended except by another writing signed by both Ms. Lisle or her designated representative and an officer of EZBOARD, though either Ms. Lisle or EZBOARD may terminate this agreement on sixty days written notice to the other.
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Thanks again for any help you may be able to offer!!

Kay House

http://www.speculations.com/rumormill/index.php?t=203&m=1594

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