Below is a the TIMESHARE400 Service Subscription agreement. If you decide to set up service on TimeShare400, you agree to abide by this agreement.
TIMESHARE400 SERVICE SUBSCRIPTION AGREEMENT
Last Updated: 2018-08-13
By accessing the TimeShare400 service(s) you agree to the terms of this agreement.
This TimeShare400 Service Subscription Agreement (the “Agreement”) sets forth the terms and conditions under which DCSoftware, Inc. dba TimeShare400 and its Affiliates (“TimeShare400”) will provide the service “TimeShare400 Service”) to You,
1. THE SERVICE.
- The TimeShare400 Service consists of access to one or more IBM AS/400 minicomputers via the Internet.
- TimeShare400 will provide You with the TimeShare400 service. The TimeShare400 service is provided in accordance with the provisions of this Agreement. TimeShare400 will provide:
- access to one or more AS/400 minicomputers via a commercially available Internet connection and subject to that connection’s availability. You will be responsible for Your own access to the Internet. TimeShare400 will not be responsible in any way for Your Internet connection, any failure by Your Internet service provider, or for the quality of the Internet connection at Your end.One or more user accounts (i.e. User Profiles and other system objects) as described in the current description for the product subscribed to or as separately arranged
- Access to various system utilities, programming languages, compilers and other system objects which TimeShare400, at its sole discretion, may make available to you. TimeShare400reserves the right to add or remove objects available to you without prior notice.
- No representation, warranty, term or condition other than as specifically set forth in this Agreement shall be binding on TimeShare400.
- For purposes of this Agreement, the term “Affiliate” means any entity wholly owned by TimeShare400 or which, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, TimeShare400.
- For purposes of this Agreement, the term “TimeShare400 parties” shall mean, TimeShare400, it’s respective third-party content or information service providers, corporate parents, members, affiliates, subsidiaries and suppliers, and the employees, agents, third-party content or information service providers or licensors of any of the foregoing.
2. GENERAL SUBSCRIBER OBLIGATIONS.
- You are signing this Agreement on behalf of Yourself and any person who accesses the TimeShare400 Service through Your computer, Your network, Your organization or under Your screen name or password. You assume responsibility to ensure that all such other users understand this Agreement and comply with its terms.
- You agree, at Your own expense, to obtain any and all consents, rights and authorizations necessary for the access and use of the TimeShare400 Service.You may not transfer Your subscription or Your rights and obligations under this Agreement to any other person. Your TimeShare400 Service will be terminated should TimeShare400 be notified that You are no longer an authorized End-User.
- You have installed on Your computer, as a minimum, one of the types of computer equipment and software suites listed in Exhibit A attached hereto and incorporated herein by this reference.
- You agree to check Your e-mail and the Member Services section online, on a regular basis, for information about changes to this Agreement and/or the TimeShare400 Service.
3. PAYMENT TERMS.
- You agree to pay a setup fee and a monthly recurring charge for the TimeShare400 Service. The schedule of fees and charges is posted online or separately arranged. You agree to pay all applicable federal, state and local fees or taxes.
- TimeShare400 reserves the right to change the amount of fees and charges from time to time at its discretion and upon reasonable advance notice to You.
- Setup fees are due along with payment of the first monthly charge. Monthly charges are payable in advance. TimeShare400 will send notification if account becomes delinquent (30 days past due date listed on bill). Payment of the delinquent amount must be received by the deadline given on this notification (8 business days from the date of delinquency) to avoid interruption of TimeShare400 Service. If a payment is not received by the deadline given on this notification, a one time late fee of not more than 5% on any outstanding amount will be charged and Your TimeShare400 Service will still be subject to disconnection. TimeShare400 may charge a reasonable service fee for all returned checks and bank card or charge card charge backs.
- If You discontinue the TimeShare400 Service or are disconnected, You agree to pay a reconnect charge before reconnection.
- You will be responsible for all expenses (including reasonable attorney’s fees) incurred by TimeShare400 in collecting any unpaid amounts due in accordance with this Agreement.
4. CHARGES FOR ONLINE SERVICES.
- Through use of the TimeShare400 Service, You may access certain information, products, and services from persons other than TimeShare400 for which there is a charge. YOU AGREE THAT ALL SUCH FEES OR CHARGES FOR ONLINE SERVICES, PRODUCTS, OR INFORMATION ARE YOUR SOLE RESPONSIBILITY AND NOT THE RESPONSIBILITY OF TIMESHARE400.
- THE TIMESHARE400 PARTIES DO NOT ENDORSE OR WARRANTY ANY THIRD-PARTY PRODUCTS, SERVICES, OR CONTENT THAT ARE DISTRIBUTED OR ADVERTISED OVER THE SERVICE.
5. END-USER BACK-UP RECOMMENDATION.
When the required remote access software is installed on your computer, the operating system files may be modified. This software is the solely Your responsibility. The TimeShare400 Parties do not warrant that the installation of software will not disrupt the normal operations of the computer or cause the loss of files. FOR THESE AND OTHER REASONS, IT IS RECOMMENDED THAT YOU BACK-UP ALL FILES PRIOR TO INSTALLATION.
6. SERVICE AND PERFORMANCE.
- TimeShare400 will make reasonable efforts to assure that the TimeShare400 Service is available to You twenty-four (24) hours per day, seven (7) days per week. It is possible, however, that there will be interruptions of service. When possible we will post online, advance notice of planned outages for network or system upgrades, system backups, etc. Unplanned service interruptions within TimeShare400’s control will be minimized. TimeShare400 does not support or otherwise take any responsibility for the availability of any user’s Internet connection.
- Except as otherwise legally required, You are entitled to a prorated credit upon request only in the event of complete failure of the TimeShare400 Service due to a technical malfunction for twenty-four (24) consecutive hours or more. To qualify for an adjustment, You must request a credit from TimeShare400 within thirty (30) days of the failure. Credits shall be applied against future fees payable by You for the TimeShare400 Service.
- The TimeShare400 Service provided is an Ethernet-like protocol service over a shared network. TimeShare400 agrees to undertake commercially reasonable efforts at network management traffic analysis, operational procedures and user policies that ensure appropriate bandwidth is available at all times for the delivery and use of the TimeShare400 Service.
- The TimeShare400 Service is a shared service supporting multiple other users. You agree that you will not monopolize system resources to the detriment of other users. TimeShare400 reserves the right to allocate system resources at its sole discretion to remedy disproportionate system usage or to attempt to optimize overall system performance.
- TimeShare400 will perform periodic system backups solely for disaster recovery purposes. You acknowledge that you will not have direct access to these backups. You may be able to arrange access separately and for an additional charge, but TimeShare400 makes no warranty regarding the suitability or availability of these backups. You will be responsible for managing your own backup strategy through your own use of ‘save files’ and FTP to transfer these save files to your own computer.
7. SUPPORT AND MAINTENANCE.
You are assumed to be sufficiently familiar with the operations of the AS/400 minicomputer system so as to require minimal technical assistance. TimeShare400 will maintain and support the operation of the AS/400 hardware, such as applying periodic system updates provided by IBM, running periodic backups of the entire system, monitoring system performance, etc.
TimeShare400 may provide limited other customer support that can be accessed by telephone or by electronic mail. TimeShare400 does not provide support for your remote access software nor your Internet connection. The telephone numbers, electronic mail addresses, and further details about the types of technical support services are available online. Technical support may involve additional charges and can be arranged separately.
This is a ‘lights out’ operation. There is no one ‘standing by’ to answer your calls or emails. Technical support for the platform or your development efforts is not included with your subscription.
8. END-USER USE.
- You agree not to resell or redistribute access to the TimeShare400 Service in any manner. The prohibition on resale or redistribution of access includes, but is not limited to the provision of electronic mail, FTP, and Telnet access. TimeShare400 reserves the right to disconnect for failure to comply with any portion of this provision.
- You agree to sign up for the appropriate account type (individual, company development, outsourcing, school) and to not abuse the account by using it for purposes not intended. If an individual account, for example, you agree not to use it for commercial purposes, and you agree that the account will be used by only one person. You understand that abusing the account will lead to immediate termination of your access until payment is made for the appropriate account type, including for past periods.
- You agree to abide by the policies of the TimeShare400 Service as they are electronically posted and added to or modified from time to time. You agree not to use the TimeShare400 Service:
- for any illegal purpose
- to achieve unauthorized access to any computer systems
- for unauthorized access or distribution of any software, data, or material protected by copyright, patent or trade secret
- to copy, distribute or sublicense any software provided by TimeShare400, except that You may make one copy of each software program for back-up or archival purposes only
- for excessive data transfer or system utilization which interferes with the experience of other users
- to interfere with the use of the equipment or services by other customers or disrupt the TimeShare400 backbone network nodes or network services
- to harass, threaten, embarrass, or cause distress, unwanted attention or discomfort upon another customer of the TimeShare400 Service
- to post or transmit any unsolicited advertising, promotional materials or other forms of solicitation to other customers, except in those areas that are designated for such a purpose
- to post or transmit any sexually explicit, hateful, vulgar, threatening, abusive, harassing, defamatory, racially, ethnically or otherwise objectionable material
- to, with respect to electronic mail messages, engage in sender address falsification, unauthorized relaying or sending, or permit to be sent on Your behalf, to any mailing list, news group or other end-users:
- “spam” or any other unsolicited, unwanted and/or unrequested mass or bulk distribution e-mail or posting, for commercial, advertising or other purposes, or
- any e-mail messages otherwise in violation of applicable laws regulating “spam” or similar transmissions; or
- to engage in any activities which would constitute illegal gambling and/or advertise for or link to any illegal Internet gambling sites.
- For violation of these policies, TimeShare400 reserves the right, in its sole discretion, to:
- remove any offending materials
- hold the End-User liable for any damages resulting from such violations
- terminate this Agreement and Your continued purchase of and access to the TimeShare400 Service.
- TimeShare400’s policy is to terminate TimeShare400 Service to account holders for copyright infringements.
- You agree that TimeShare400 shall have the right to take any action that TimeShare400 deems appropriate to protect the TimeShare400 Service, its facilities and equipment.
9. END-USER INFORMATION AND PRIVACY.
- Your privacy interests are described in the Subscriber Privacy Notice which is attached hereto and is incorporated by reference. You acknowledge receipt of the Subscriber Privacy Notice.
- TimeShare400 may collect (whether automatically or otherwise) and share with other TimeShare400 entities information of the type described in the Subscriber Privacy Notice (some of which may be deemed personally identifiable) relating to You that TimeShare400 may acquire as a result of the provision of the TimeShare400 Service. You hereby consent to the collection by, and sharing between, TimeShare400 and other TimeShare400 entities of such information.
- You acknowledge that accessing certain Web sites, including the TimeShare400 home page or any other TimeShare400 computer, may result in an http header (commonly known as a “cookie”) being entered into the memory of Your browser or stored on Your computer’s hard drive and that, if You do not want such “cookies”, it is Your responsibility to disable the entry of such “cookies” through such procedures as may be available on Your browser.
- You expressly grant TimeShare400 permission to disclose, without prior notice to You, information relating to Your account such as the name and address associated with a given IP address or e-mail account in response to:
- a subpoena issued in a civil or criminal investigation or litigation
- a civil investigative demand issued by a government entity
- a court order
- a law enforcement agency request based on emergency conditions such as an imminent threat to life and limb or substantial damage or destruction of property. Examples of such emergency situations would include bomb threats, kidnappings, extortion threats, identifying the service address of a suicidal party, and threats to critical governmental or private sector computer systems and data bases.
10. LIMITATION OF LIABILITY; NO WARRANTIES.
PLEASE READ THIS SECTION CAREFULLY. IT CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY, MADE ON BEHALF OF THE TIMESHARE400 PARTIES.
- THE TIMESHARE400 PARTIES MAKE NO WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL EQUIPMENT, SOFTWARE, CONTENT, AND SERVICES ARE SUPPLIED AS IS. EXCEPT FOR THE REFUND OR CREDIT AS EXPRESSLY PROVIDED IN SECTION 6.2 IN NO EVENT SHALL ANY TIMESHARE400 PARTY BE LIABLE FOR ANY DIRECT, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES ARISING IN ANY MANNER OUT OF THE INSTALLATION, MAINTENANCE, FAILURE, REMOVAL, OR USE OF THE EQUIPMENT, SOFTWARE, CONTENT, OR TIMESHARE400 SERVICE.
- The TimeShare400 Parties assume no responsibility whatsoever for any damage to or loss or destruction of any of Your software, files, data, or peripherals which may result from Your use of the TimeShare400 Service, or from the installation, maintenance, or removal of the service, equipment or software. The TimeShare400 Parties do not warrant that any data or files sent by or to You will be transmitted in uncorrupted form or within a reasonable period of time.
- TimeShare400 treats privates communications on or through their networks as strictly confidential and do not access, use, or disclose the contents of private communications, except in limited circumstances referenced at Section 9 above and as permitted by law. However, the network is a shared network used by subscribers of the TimeShare400 Service. Since the Internet is a shared resource, without appropriate security measures on Your computer, others may access or monitor Your traffic. PLEASE REFER TO THE INFORMATION AVAILABLE ONLINE FOR ADDITIONAL INFORMATION ABOUT THE RISK OF UNAUTHORIZED ACCESS BY OTHERS AND HOW TO CONFIGURE YOUR SYSTEM TO INCREASE THE SECURITY OF YOUR COMPUTER.
- The TimeShare400 Parties do not warrant that any data or files sent or received by You over the network, or communications directed to or received from outside of the network, will not be subject to unauthorized access by others or that other users will not gain access to Your computer or to any other network to which it may be connected. The TimeShare400 Parties have no responsibility and assume no liability for such acts or occurrences. If You choose to run applications from Your computer that permit others to gain access to it, You must take appropriate security measures. Failure to do so may cause immediate termination of Your service by TimeShare400. The TimeShare400 Parties are not responsible for and assume no liability for any damages resulting from the use of such applications.
- No Liability for Viruses. The TimeShare400 Parties make no representation or warranty that any software installed on Your computer or which You may download from the Internet, online service provider, or other information provider does not contain any virus or other damaging or destructive attribute. The TimeShare400 Parties have no responsibility and assume no liability for such acts and occurrences.
- No Liability for Content. The TimeShare400 Parties make no representations and do not assume any legal liability or responsibility for the accuracy, completeness, or usefulness of any content in the TimeShare400 Service. While the TimeShare400 Parties supply access via the Internet, they are not the publisher of any information provided by others through the Internet. The TimeShare400 Parties do not review, censor, or monitor and are not in any manner responsible for any programs or content sent or accessed over the Internet or made available by any individual, user, information provider, online service or content provider (other than the TimeShare400 Service). Such content or programs may include, without limitation programs or content of an infringing, abusive, profane, or sexually offensive nature. All content from other parties accessed via the TimeShare400 Service is accessed by You and those You have authorized, all at Your own risk, and the TimeShare400 Parties assume no liability whatsoever for any claims, losses, actions damages, suits, or proceedings arising out of or otherwise relating to such content accessed using the TimeShare400 Service.
- No Liability for Parental Empowerment Tools. The TimeShare400 Parties are not in any manner responsible for the effectiveness of blocking and filtering technologies.
While the TimeShare400 Parties believe strongly in copyright law and other laws that protect the rights of persons transmitting communications within and outside of its network, the TimeShare400 Parties assume no liability whatsoever for any losses, claims, damages, expenses, liabilities or costs (including legal fees) arising out of or in connection with any allegation claim, suit or other proceeding based upon a contention that the use of the equipment or services by You or a third-party infringes the copyright, patent, trademark, trade secret or other industrial or intellectual property rights or contractual rights of any third-party.
- TimeShare400 will make reasonable efforts to secure those libraries, output queues, job queues and other system objects intended to be solely available to You. You acknowledge that should Your placment of any objects in publicly accessible libraries will place your material at risk of being observed, copied or otherwise utilized by others on the system, and you agree to hold TimeShare400 harmless for any harm resulting from such actions.
- You acknowledge that in spite of reasonable efforts by TimeShare400 to secure your material, material posted or transmitted through the TimeShare400 Service and/or over the internet may be copied, republished or distributed by third parties, and will hold the TimeShare400 Parties harmless for any harm resulting from such actions.
- You acknowledge that other users’ proprietary materials are stored on the TimeShare400 Service and you will not access nor attempt to access these materials without the express written consent of the other user, a copy of which must be provided to TimeShare400. Should you find that you are able to access another user’s material, You agree to notify TimeShare400 immediately so that appropriate measures can be taken to secure the materials.
- You hereby grant TimeShare400 and hereby represent and warrant that You have all necessary rights to so grant, the worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, distribute, perform and display all material posted on the public areas of the TimeShare400 Service via Your account and/or to incorporate the same in other works in any form, media or technology whether now known or hereafter developed.
13 TERM AND TERMINATION.
- This Agreement will remain in effect until terminated by either party or superseded by a revised Subscription Agreement.
- Any TimeShare400 supplied equipment or software must be returned within fifteen (15) days of termination of TimeShare400 to avoid charges.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE TIMESHARE400 PARTIES FROM AND AGAINST ANY AND ALL CLAIMS AND EXPENSE, INCLUDING REASONABLE ATTORNEYS’ FEES, ARISING OUT OF OR RELATED IN ANY WAY TO YOUR USE OF THE TIMESHARE400 SERVICE OR OTHERWISE ARISING OUT OF THE USE OF YOUR ACCOUNT OR EQUIPMENT AND THE SOFTWARE.
15. DISPUTE RESOLUTION; GOVERNING LAW AND GENERAL PROVISIONS.
- Any controversy or claim arising out of or related to this Agreement shall be resolved by arbitration under the current rules of the American Arbitration Association. This Agreement shall be governed under the laws of the state of Massachusetts.
- This Agreement which shall include current and future Exhibits, embodies the entire understanding between the Parties with respect to the subject matter and supersedes any and all prior understanding and agreements, oral or written.
- The TimeShare400 Parties shall have no liability, including as set forth in Section 6.2, for interruption of the TimeShare400 Service due to circumstances beyond their control, including without limitation, acts of God, flood, natural disaster, regulation or governmental acts, fire, civil disturbance, strike or weather.
- If one or more of the paragraphs in this Agreement are found to be unenforceable or invalid, the remaining paragraphs shall remain in effect.
BY USING OR CONTINUING TO USE THE TIMESHARE400 SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND FULLY UNDERSTAND ALL OF THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT AND THAT YOU AGREE TO ABIDE BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
You must have, as a minimum, a computer capable of running appropriate remote access software (commonly known as Telnet or TN5250 software). Additionally, You must provide Internet connection.
TimeShare400 SUBSCRIBER PRIVACY NOTICE
1. Collection & Use
To continue providing reliable and high quality service to You, we keep regular business records that contain the following types of personally identifiable information: Your name, address, telephone numbers, credit information and subscriber correspondence. Our records include information on billing, payment, damage and security deposits, maintenance and repairs, the service options You have chosen, Your computer and remote access software. We maintain records of research concerning subscriber satisfaction which are obtained from subscriber interviews and questionnaires.
Our detailed business records are used (and personal information contained in them disclosed) generally to help ensure You are being properly billed for the services You receive, to send You pertinent information regarding Your services, to improve the quality of the services we provide, and for all tax and accounting purposes. Specifically, the information in these records is used to sell, install, maintain, and disconnect services; to bill and collect service-related charges; to measure subscriber satisfaction and improve marketing and program decisions; to mail related materials; to ensure compliance with relevant law and contractual provisions; and to answer questions from subscribers. Information collected about services is used to understand subscriber reactions to services we offer to evaluate the network. It helps us to customize the services based on the interests of subscribers, and helps us to be more selective in the types of commercial communications we address to You. We take all reasonable precautions to prevent unauthorized access to this information
TimeShare400 considers the information contained in the business records we keep to be confidential. Unless prior written or electronic consent is obtained, personal information which we maintain related to our subscribers may be disclosed to a third party only if: (1) it is necessary to render or conduct a legitimate business activity related to the services we provide; (2) such disclosure is required by court order and You are notified of such order; or (3) for mailing lists as described below. In the course of our services we may make Your records available to employees, agents and contractors in order to install, market, provide and audit service on each occasion that access to the information is needed. We may also occasionally release our subscriber list to consumer and market research organizations, software vendors, and merchants or advertisers offering services to You over the data and Internet access service. Access for these purposes is routine, and does not occur with any specific frequency. Further, we may make our subscriber records available each month or as needed to an independent billing house for billing purposes; to mailing services and programmers each month for informational mailing distribution; to programmers and outside auditors when required; to attorneys and accountants on a continuous basis to render service to the company; to potential purchasers in connection with a system sale which occurs only at the time such sale is completed; to franchising authorities to demonstrate compliance, whenever such concerns are raised; to collection services if required to collect past due bills at such time as bills are submitted for collection; to law enforcement when required to prevent network damage or the unauthorized reception of service; to the United States Postal Service, when required, in connection with mailing.
In the event You are a customer of the TimeShare400 Service, You have expressly granted permission to TimeShare400 to disclose, without prior notice to You, information relating to Your account such as the name and address associated with a given IP address or e-mail account in response to:
- a subpoena issued in a civil or criminal investigation or litigation
- a civil investigative demand issued by a government entity
- a court order
- a law enforcement agency request based on emergency conditions such as an imminent threat to life and limb or substantial damage or destruction of property, Examples of such emergency situations would include bomb threats; kidnappings, extortion threats, identifying the service address of a suicidal party, and threats to critical governmental or private sector computer systems and data bases.
3. Mailing Lists
Although we do not presently sell our subscriber list or otherwise disclose it to commercial or charitable users, we may include Your name and address on mailing lists and to disclose that information for other purposes unless You object to such disclosure. In no event do we disclose the extent of Your use of a particular service or the nature of any transaction You make over the system, but we may disclose that You are among those who subscribe to a particular service or other service.
We maintain information about You for as long as we provide service to You, and for a longer time if necessary for our business purposes. When information is no longer necessary for our purposes, we will periodically destroy the information, unless there is a legitimate request or order to inspect the information still outstanding.
You have the right to inspect the records we keep that contain information about You and to correct any error in our information. If You wish to inspect those records that pertain to You, please notify us in writing and an appointment will be arranged promptly during our regular business hours.
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