MEMBERSHIP AGREEMENT AND TERMS OF SERVICE

NEAR DEATH STUDIOS, INC.
MEMBERSHIP AGREEMENT AND TERMS OF SERVICES
March, 2002

WELCOME TO NEAR DEATH STUDIOS. ("NDS")

NDS PROVIDES ACCESS TO GAME PLAY ON MERIDIAN(t) 59 THROUGH ITS DEDICATED SERVERS TO YOU SUBJECT TO THE TERMS AND CONDITIONS OF THIS MEMBERSHIP AGREEMENT AND TERMS OF SERVICES (“TOS”) WHICH NDS RESERVES THE RIGHT TO UPDATE OR CHANGE FROM TIME TO TIME WITHOUT NOTICE TO YOU. NUMEROUS DOCUMENTS MAKE UP THIS TOS, INCLUDING BUT NOT LIMITED TO “THE RULES OF PLAY”, “THE PRIVACY POLICY,” AND THE “END-USER LICENSE AGREEMENT.” YOU MAY REVIEW THE MOST CURRENT VERSION OF THIS TOS AT ANYTIME AT http://billing.NearDeathStudios.com/M59-ToS-01.shtml.

1. ACCEPTANCE OF TERMS OF SERVICES.

   PLEASE CAREFULLY READ THIS TOS BEFORE APPLYING FOR MEMBERSHIP AND SERVICES FROM NDS AND/OR ATTEMPTING TO PLAY THE MERIDIAN 59 ONLINE GAME. BY INDICATING BELOW THAT YOU “ACCEPT”, YOU ARE AGREEING TO BE BOUND BY AND SUBJECT TO ALL OF THE TERMS AND CONDITIONS OF THIS TOS, AND ALL OTHER INTEGRATED DOCUMENTS REFERENCED HEREIN. THE TERM “YOU” SHALL MEAN A PERSON OVER THE AGE OF 18 WHO IS ESTABLISHING A MEMBERSHIP AND ACCOUNT WITH NDS, OR ANY PARENT OR GUARDIAN ESTABLISHING A SPONSORED MEMBERSHIP AND ACCOUNT FOR A MINOR.

2. MERIDIAN 59 MEMBERSHIP.

   YOU ARE ELIGIBLE TO BECOME A MEMBER OF THE NDS MERIDIAN 59 ONLINE GAME SERVICE IF YOU ARE OVER THE AGE OF 18 AND IF YOU COMPLETE THIS TOS BY INDICATING BELOW THAT YOU “ACCEPT.” IF YOU ARE NOT OVER THE AGE OF 18, YOU MUST HAVE A PARENT OR GUARDIAN OPEN AN ACCOUNT FOR YOU AND BECOME THE SPONSORING MEMBER. ONCE YOU CLICK “ACCEPT” BELOW, YOU HAVE COMMENCED REGISTRATION TO OPEN AN ACCOUNT AND BECOME AN NDS MERIDIAN 59 MEMBER, AND YOU MAY HAVE ACCESS TO THE MERIDIAN 59 ONLINE GAME PROVIDED THAT YOU FIRST COMPLY WITH ALL OTHER REGISTRATION, ACCOUNT AND MEMBERSHIP RULES, REGULATIONS AND REQUIREMENTS.

   WHEN YOU ACCEPT THIS TOS AND COMPLETE THE NDS MEMBERSHIP REGISTRATION PROCESS, YOU CREATE AN NDS ACCOUNT. YOU MAY NOT PROVIDE FALSE INFORMATION DURING THE REGISTRATION PROCESS. IF NDS HAS REASON TO BELIEVE THAT ANY INFORMATION PROVIDED BY YOU IS, UNTRUTHFUL, INCOMPLETE, FALSE OR NOT CURRENT, NDS MAY SUSPEND OR TERMINATE YOUR ACCOUNT AND MERIDIAN 59 MEMBERSHIP IMMEDIATELY OR AT ANY TIME, WITHOUT NOTICE, AND NDS MAY REFUSE ANY FUTURE ACCESS AND SERVICES TO YOU.

3. BILLING ACCOUNT BASICS.

   1. Requirement for Billing Account.
      In order for You to become a Member and to access the Meridian 59 servers You must establish a Billing Account (“Account”) with NDS. You may not game play on Meridian 59 or participate in any on-line game play on the NDS website without first establishing an Account.

   2. Monthly Subscription Fee Paid by Credit Card.
      You must be a member of NDS and pay the monthly subscription fee(s) to access the Meridian 59 on-line game servers and to game play on Meridian 59. In order to open an Account, NDS requires that you provide NDS with a valid credit card in Your name and the appropriate billing information. By indicating below that You “Accept”, You allow, approve of, and authorize NDS to charge each and every monthly subscription fee against Your credit card. NDS bills monthly subscription fees in advance of game play, on a month-by-month basis, coinciding with the day of the month that You open Your Account. There is no option to bulk pre-pay in advance. You agree to provide NDS with advance written notice by email (Notices must be sent to billing@NearDeathStudios.com) of any changes to Your credit card account number and/or billing information. You agree to notify NDS in advance in writing by email of the expiration or cancellation of Your credit card for any reason. The current monthly subscription fees are published (and subject to change at any time by NDS upon thirty (30) days notice) in the Billing and Subscription FAQ located at http://billing.neardeathstudios.com/M59-Billing-FAQ-01.shtml.

   3. Charges to Your Credit Card.
      Each month that You use and access NDS’ servers for Meridian 59 game play, You agree, authorize and reaffirm that NDS may charge Your credit card for the monthly subscription fee. As the Account holder, You are responsible for all charges incurred on Your Account, including any charges made by friends or family. This means, that unless Your credit card is obtained illegally or used in a fraudulent manner by someone other than Yourself, You will be responsible for all usage, purchases and charges against your Account.

   4. Termination of Your Account.
      You must have a valid Account to access and connect to the NDS servers for Meridian 59 game play. If you wish to terminate Your Account at any time, You must provide NDS with written email notice of termination. (Notices must be sent to billing@NearDeathStudios.com). Said written notice must be delivered to NDS not later than five (5) business days prior to Your monthly billing date or You will be charged for the next monthly subscription fee. Failure to provide NDS with timely written email notice shall result in having Your c redit card charged for one additional monthly subscription fee. NDS shall have no obligation to return any pre-paid monthly subscription fee, or any pro-rated portion thereof for Your failure to provide adequate advance written email notice of Your intent to terminate Your account. Upon terminating Your Account, Your membership with NDS will be automatically terminated. After You terminate Your Account, You promise that You shall not attempt to access the NDS servers, the Meridian 59 Online Game, or use the services provided by NDS under your old, de-activated user name and/or password. Termination of Your Account terminates Your membership and all right(s) to receive future services or access under this TOS.

   5. Pre-Launch Special.
      NDS will be allowing persons who have purchased “Limited Edition Pre-Launch Compact Discs” to access the NDS servers and game play Meridian 59 for free for a period of two to six weeks. This “free play” shall be for the period of time prior to NDS’ “official launch.” “ Pre-Launch Players shall still be required to Accept this TOS, register as a member and open an Account. Your Account will then be billed on a monthly basis after the expiration of the appropriate “free play” time period.

   6. SET UP ACCOUNT NOW. If You wish to set-up an Account now, please CLICK HERE.

4. MEMBERSHIP BASICS, RULES AND REGULATIONS.

   1. User Name.
      Upon registering as a Member of the NDS Service, You will have the opportunity to establish a user name and password. You are responsible for keeping Your user name and password confidential at all times, and You are fully and exclusively responsible for any and all activity occurring under the use of Your User Name, and for the security of Your computer system. You are responsible for the security of You user name and password. Your User Name may not be one that is used by another member, or which is vulgar, offensive or which otherwise violates this TOS.

   2. Confidentiality of User Name and Password.
      NDS will never ask You to reveal Your password via email. You will only be required to provide Your password to access the Meridian 59 servers. If You forget Your user name or password, You may give us your reminder words and NDS will email Your password to You. You agree to indemnify and hold NDS harmless for any improper, unauthorized or illegal use of Your Account and/or membership with NDS This indemnification includes, but is not limited to, the improper, unauthorized or illegal use of Your Account and/or membership by any person or party that You have given permission to use Your Account and/or membership. Your membership is subject to termination by NDS at any time if You or anyone using Your Account and/or membership violates this TOS. If Your Account and/or membership are terminated for any reason except voluntary termination or non-payment, You may not re-register or become a member again without NDS’ express permission. You shall not sell or charge to any person or party the right to use Your Account.

   3. Duty to Notify NDS of Unauthorized Use.
      You agree to (a) immediately notify NDS by email of any and all unauthorized or illegal use of your user name or Account, or any other breach of security, and (b) ensure that You properly exit from Your Account at the end of each session. NDS cannot and will not be liable for any loss, charges, or damages arising from Your failure or negligence in complying with this provision.

   4. RULES OF PLAY.
      Please refer to the “Rules of Play” which You will find located at http://billing.neardeathstudios.com/M59-RulesOfPlay-01.shtml. At all times during game play on Meridian 59 or when accessing the NDS servers for any reason, You shall comply with the “Rules of Play.” If You or anyone accessing Your Account or using Your membership, user name or password, violate the “Rules of Play”, or the NDS Online Conduct standards, NDS may immediately terminate Your Account and refuse You any future access to the NDS servers or the Meridian 59 Online Game. In the alternative, NDS reserves the right to issue warnings to You regarding violations of the Rules of Play or any inappropriate Online Conduct. You acknowledge that NDS has no obligations to give You any warnings or notice before terminating Your Account for violations under this Section, but it may choose to do so at its sole election.

   5. RULES OF ONLINE CONDUCT.
      By registering as a member, You agree to the following Rules of Online Conduct. Failure to comply with these Rules of Online Conduct may lead to the immediate termination of Your Account and/or denial of future access to the NDS servers and the Meridian 59 Online Game. You agree that You will be personally responsible for the use of Your membership and Account, including all of Your communications and activities on the Meridian 59 Online Game. Online and Game Play conduct should be guided by common sense and basis civil and online etiquette. If You are not familiar with etiquette, NDS recommends that You read Miss. Manner’s Book entitled, “A Citizen’s Guide to Civility”, or “Netiquette” by Virginia Shea. Both may be found on Amazon.com.

   1. No Hacking or Cracking.
      You shall not violate the EULA which is located at http://billing.neardeathstudios.com/M59-EULA-01.shtml. You shall not attempt, nor assist a third party to attempt, to “hack”, “crack” or improperly access the Meridian 59 Online Game or the NDS servers. You shall not “hack” the communication protocol between Your computer and the NDS Meridian 59 Online Game servers. You shall not make Your membership available to any person not already licensed to use the Meridian 59 Game Software. You shall not abuse or attempt to destroy, injure, hack, crack, damage, infect with an exploiting bug, distribute any content that contains any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, or intercept any data or personal information, or otherwise contaminate the Meridian 59 Online Game and/or the NDS servers. NDS reserves the right to take any action, including legal action, against anyone caught hacking.

   2. No Cheating.
      You shall not cheat, deceive or manipulate the Meridian 59 Online Game or other players of the game. This is a zero-tolerance policy. If NDS becomes aware of any cheating or deception by You in the game play of Meridian 59, it shall terminate Your Account immediately and revoke all future access to the NDS servers. Anyone caught cheating, involved in deception or manipulation, will not be refunded any amount of their monthly subscription fee. NDS reserves the right to take any action, including legal action, against anyone caught cheating. This does not apply to in-character deception relating to trickery or theft of in-game items.

   3. No Harassment.
      The Meridian 59 Online Game features player/character killing, violence and acts of mayhem perpetrated by in-game avatars. NDS recognizes that harassment is part of the Meridian 59 Online Game. However, harassment of NDS members will not be tolerated. It is up to You to make a distinction between a real live NDS member versus a Meridian 59 player/character/avatar. If You cannot make such a distinction, You should not play Meridian 59. Accordingly, You shall not harass, threaten, embarrass, reveal personal information, or do anything else of a personal nature to another NDS member that is unwanted. This means that You will not send them unwanted messages, verbally attack them personally, say bad things about them to third parties, or stalk them on-line. Stay in character. Do not become personal.

   4. No Hate Speech.
      You shall not engage in any “Hate Speech”, or transmit or facilitate distribution of content and messages that may be perceived as “Hate Speech”, harmful, abusive, offensive, vulgar, sexually explicit, defamatory, objectionable, or intended to injure another member either directly or by publication of personal facts and invasion of privacy.

   5. No Online Vandalism.
      You shall not engage in any conduct which may be perceived by another member or by NDS as online vandalism. Online Vandalism shall include, but is not limited to (a) the distribution of any content that contains any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, or intercept any data or personal information, (b) disrupt the flow of dialogue in a game, or (c) use of excessive shouting. NDS reserves the right to warn You about any violations of this provision. Online Vandalism is very difficult to define, therefore, NDS reserves the right to determine when such activity constitutes Online Vandalism because, like the United States Supreme Court with pornography, NDS knows it when it sees it.

   6. No Illegal Activity.
      You shall not engage in any illegal activity while involved in game play on Meridian 59 or while accessing the NDS servers. If NDS becomes aware of any illegal activity, it will immediately report YOU to the appropriate authorities, and it may, at its election, bring a civil action against YOU for any damage to NDS or Meridian 59 resulting from such illegal activity. In addition, NDS shall cooperate with law enforcement to the fullest extent in investigating any illegal behavior or activity by You. Cooperation shall include the release and disclosure of all information that You provide to us under this TOS and concerning Your membership.

   7. No Uploading.
      You shall not upload any software, content, files or corrupted date onto the NDS servers. If NDS becomes aware of any uploading by You it shall terminate Your Account immediately and revoke all future access to the NDS servers. Anyone caught uploading will not be refunded any amount of their monthly subscription fee. NDS reserves the right to take any action, including legal action, against anyone caught uploading.

   8. Respect all Other Members.
      You shall respect all other Members.

   9. No Impersonation.
      You shall not impersonate or cause another to believe that You are a NDS employee or representative. NDS employees and representatives are available to assist members with problems that they may encounter with their Account or with game play of Meridian 59. Violations of this rule will be taken seriously and will result in immediate action by NDS. NDS reserves the right to immediately terminate Your Account for such conduct.

5. INTEGRATION OF THE END USER LICENSE AGREEMENT
   

   You acknowledge that simultaneous with Acceptance of this TOS, that You agree to be bound by all the terms and condition of the NDS End-User License Agreement, and that such documents shall be integrated herein as if fully set forth. The End User License Agreement may be located at http://billing.neardeathstudios.com/M59-EULA-01.shtml.

6. MEMBER SERVICES.

   1. No Guarantee of Uptime.
      NDS shall make best efforts to make the NDS servers available for game play at all times. However, there is no guarantee for uptime. NDS reserves the right to take the server down at anytime for regularly scheduled maintenance or in an emergency, during which times YOU and other members will not be able to access the servers or game play on Meridian 59. In the event that there are interruptions of service which last more than twenty-four (24) hours consecutively, NDS shall credit all member Accounts with additional play time.

   2. Protection of Character Information.
      NDS shall make best efforts to ensure that Your character information is saved and properly archived. However, NDS cannot guarantee that Your information is always saved when problems occur. Under no circumstance will NDS perform any character restorations. Any member that “Suicides” a character will not be assisted in retrieving the information concerning that character.

   3. Online Game Play not Private.
      When you connect to the NDS server, NDS may retrieve information from Your computer used to log on about the computer’s hardware system and any data concerning the computer’s operation of NDS Access Software under the EULA. NDS will not collect any information about You during this process without Your knowledge and consent. You acknowledge and agree that Your communications with other members are public and not private communications, and that You have no expectation of privacy concerning the use and game play of Meridian 59. NDS is not responsible for any information that You choose to communicate to other members or users of Meridian 59, or for the actions of others concerning that information which You have disclosed.

   4. Modifications to Service.
      NDS reserves the right at any time, from time to time, to modify or discontinue, temporarily or permanently, the service and the Meridian 59 Online Game, or any part thereof, with or without notice. You agree that NDS shall not be liable to You or any third party for any modification, suspension of, or discontinuance of service or game play, except that NDS, at its sole election, shall refund to You the pro-rated balance of any pre-paid and unused monthly subscription fee, or credit Your account for any down time outages lasting longer than twenty-four (24) consecutive hours.

7. INDEMNIFICATION.

   You agree to defend, indemnify and hold harmless NDS, its affiliates, officers, directors, employees, agents, vendors, and contractors, from all liabilities, claims, expenses, including attorneys fees, which arise from a breach of this TOS, or any document or agreement integrated herein, for which You are responsible or in connection with Your transmission of any content or information on the NDS servers. NDS reserves the right

8. TERMINATION OF MEMBERSHIP AND ACCOUNT.

   1. You may terminate or cancel Your membership and Account at any time. NDS may terminate your membership or Account any anytime for violation of this TOS, or any document or agreement integrated herein, including but not limited to the EULA and/or the Rules of Play. You understand and agree that the cancellation of Your membership and Account is your sole right and remedy with respect to any dispute. You acknowledge and agree that NDS is not obligated to refund You any portion of Your unused pre-paid membership fee and no online credits or other form of reimbursement shall be paid or granted to You in the event of Your voluntary cancellation.

   2. You may cancel Your membership and Account by delivering an email notice to NDS’ Account Manager at billing@NearDeathStudios.com. NDS reserves the right to collect fees, surcharges or costs incurred before the date that You properly deliver notice of cancellation. You may not allow any other member to use Your Account. Any delinquent or unpaid Account must be settled and paid by You before NDS will allow You to register or become a member again.

   3. You agree and acknowledge that NDS may terminate and deactivate Your Account and membership for any reason, including violation of this TOS, or any document or agreement integrated herein, including but not limited to the EULA and/or the Rules of Play, without prior notice. In such circumstances, NDS shall have the right to immediately delete all of Your character information and to bar you from any further access to those information files. You agree that neither NDS, its officers, directors, employees, agents, contractors or vendors will be liable to You or any third party for any termination of Your access to the NDS servers, or the cancellation and termination of Your Account and/or membership.

9. NDS PROPRIETARY RIGHTS.

   You acknowledge and agree that the Meridian 59 Online Game, and any necessary software to access it or used in connection with it, contain proprietary and confidential information that is protected by applicable intellectual property and other state and federal laws, including but not limited to trademark, copyright, and patent law. Except as expressly authorized by NDS, You shall not modify, lease, loan, sell, distribute or create any derivative works based on the Meridian 59 Online Game or the access software, in whole or part. Subject to all of the terms and conditions set forth in the EULA described in Section 5 above, NDS grants to You, subject to the pre-payment of all monthly subscription fees, and any license fees, a non-transferable, non-exclusive right and license to (1) employ and use the Access Disk or downloadable access software to connect only to authorized NDS servers, and (2) use and play the Meridian 59 Online Game pursuant to the terms and conditions set forth in this TOS and the EULA. You agree not to modify the Meridian 59 Online Game or the Access Disk in any manner, including without limitation, for the purpose of obtaining unauthorized access to the NDS servers. You agree not to attempt or to access the NDS servers and/or the Meridian 59 Online Game, by any other means other than through the interface that is provided by NDS expressly for the purpose of accessing Meridian 59.

10. DISCLAIMER OF WARRANTIES.

    YOU EXPRESSLY AGREE AND UNDERSTAND THAT:

    1. Your use of the NDS servers and the Meridian 59 Online Game is at Your sole risk.

    2. The Meridian 59 Online Game is made available to You on an “As-Is” basis. NDS expressly disclaims all warranties of every kind and nature, whether express or implied. If You do not like the Meridian 59 Online Game, Your sole and exclusive remedy is to terminate Your membership and Account.

    3. NDS makes no warranty that the membership service will meet Your requirements or expectations, or that the on-line game play will be uninterrupted, timely, secure, or error-free.

    4. NDS makes no warranty that any errors in the software or game play will be corrected.

    5. Any material downloaded or otherwise obtained by You through the use of the membership or as a result of game-play is done at Your own discretion and risk. You are solely responsible for any and all damage, if any, to Your computer system that results from the download of any such material.

    6. No representation, advice, instruction, or information, whether oral or written, obtained by You from NDS, shall create any warranty not expressly stated in this TOS.

11. LIMITATION OF LIABILITY.

    EXCEPT WHERE THIS EXCLUSION OR RESTRICTION OF LIABILITY WOULD BE VOID OR INEFFECTIVE UNDER APPLICABLE STATUTE OR REGULATION, IN NO EVENT SHALL NDS BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, WHETHER OR NOT NDS HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF NDS UNDER THIS TOS EXCEED THE AMOUNT PAID BY YOU FOR MONTHLY ACCESS TO THE MERIDIAN 59 ONLINE GAME. IN THE CASE WHERE NO AMOUNT IS PAID BY YOU TO NDS, NDS SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER.

12. NOTICES.

    All notices sent by You to NDS may be delivered by email to the billing@NearDeathStudios.com, or by U.S. Postal Service to:

    Near Death Studios, Inc.
    Attention: Billing
    54 Hazard Avenue, #327
    Enfield, CT 06082

13. GENERAL LAW.

    This TOS, together with all of the agreements and documents integrated herein, contain the entire understanding between You and NDS related to the subject matter hereof, and supercede all prior agreements, whether written, oral, between You and NDS. This TOS, together with all of the agreements and documents integrated herein , may only be modified by a physical writing signed by both NDS and You. This TOS, and all of the agreements and documents integrated herein , shall be governed by and construed under the laws of the state of California, United States. Jurisdiction of all state actions is the County of Santa Clara, California, and all federal actions shall be heard in the Ninth Circuit Court in the Northern District of California. If any provision of this TOS is ever held by a court of competent jurisdiction to be void, invalid, unenforceable or illegal, it will not effect the validity of the remaining balance of the TOS which will remain in full force and effect. The prevailing party in any legal action regarding the subject matter hereof shall be entitled to recover, in addition to all other relief, reasonable attorneys fees and expenses. Any causes of action which YOU might bring under this TOS must be instituted within one (1) year after the claim or cause of action has arisen or be barred forever.

14. SECTION TITLES ARE FOR CONVENIENCE ONLY.