Terms of Service - Wholesale Account
IMPORTANT - THIS IS A LEGAL AGREEMENT (THE "AGREEMENT") BETWEEN YOUR COMPANY ("You") AND HIGHWINDS MEDIA GROUP, INC. ("HW" or "We") AND ITS AFFILIATES. ALL HW CUSTOMERS THAT PROVIDE HW USENET SERVICES TO END USERS MUST COMPLY AND WILL BE BOUND TO THESE TERMS. HW RESERVES THE RIGHT TO MODIFY AND CHANGE THESE TERMS AT ANY TIME. HW SUGGESTS THAT YOU PRINT AND RETAIN OR SAVE A COPY OF THIS AGREEMENT.
HW is a "service provider" (as that term is defined under 17 United States Code Sections 512(k)(1)(A) & 512(k)(1)(B)) providing Usenet to internet service providers and to HW's own subscribers (hereafter the "Service" or "Services"). HW will provide the Service to the entity (the "Company")on whose behalf you executed the separate written agreement that covers fees and service terms ("Order Form").
1. Usenet Service
HW will, at its servers accessed through its domain name, provide to Company's subscribers ("End Users") access to all Usenet groups carried by the Service. Company shall only be permitted to resell the Services to End Users. Company acknowledges and agrees that Services shall not be sold to another reseller or supplier. HW may adjust the Usenet groups it carries at any time and at its sole discretion. Company shall specify a range of IP addresses which may access the Service and, pursuant to the terms of this Agreement, HW shall not block access to the Services to an End User using an IP address within this range. HW will not be responsible for providing the Company or End Users with any internet service, software, hardware, bandwidth or other connection to access the Services, all of which shall be the responsibility of the Company or its End Users. HW may deny access to any End User who attempts to access the Service if such access would cause the number of End Users' simultaneous connections to exceed the amount set forth in an order form which has been accepted by HW or pursuant to the invoice sent by HW to the Company (the "Invoice"). Company acknowledges and agrees that HW shall be the exclusive provider of Usenet Services to Company on a world wide basis during the term of any agreement between HW and Company for Usenet Services. Company shall not be allowed to acquire or consolidate any usenet services without the written consent of HW.
A. General. HW will, at its servers accessed through its domain name, provide to Company's subscribers ("End Users") access to all Usenet groups carried by the Service. Company shall only be permitted to resell the Services to End Users. Company acknowledges and agrees that Services shall not be sold to another reseller or supplier. HW may adjust the Usenet groups it carries at any time and at its sole discretion. Company shall specify a range of IP addresses which may access the Service and, pursuant to the terms of this Agreement, HW shall not block access to the Services to an End User using an IP address within this range. HW will not be responsible for providing the Company or End Users with any internet service, software, hardware, bandwidth or other connection to access the Services, all of which shall be the responsibility of the Company or its End Users. HW may deny access to any End User who attempts to access the Service if such access would cause the number of End Users' simultaneous connections to exceed the amount set forth in an order form which has been accepted by HW or pursuant to the invoice sent by HW to the Company (the "Invoice"). Company acknowledges and agrees that HW shall be the exclusive provider of Usenet Services to Company on a world wide basis during the term of any agreement between HW and Company for Usenet Services. Company shall not be allowed to acquire or consolidate any usenet services without the written consent of HW.
B. Your Covenants to Highwinds. Company agrees that any content distributed through the Service by the Company and the End Users: (a) shall not infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (b) shall not violate any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control); (c) shall not be defamatory, libelous, unlawfully threatening or unlawfully harassing; (d) shall not be obscene or contain child pornography or, if otherwise pornographic or indecent, shall be distributed only to people legally permitted to receive such files; (e) shall not violate any laws regarding unfair competition, anti-discrimination or false advertising; (f) shall not contain any viruses, Trojan horses, worms, time bombs, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (g) shall be in compliance with HW's Terms of Service and Acceptable Use Policy. Company covenants and agrees that it will not allow any End User to access the Service through a redirect, or redirect any End User login or account to access the Service. At Company's own expense, its shall comply with all applicable laws, regulations, rules, ordinances and orders regarding its activities related to the Services and this Agreement.
C. Spam. There is not any specific definition of "spam", however, HW considers improper and abusive positing as a detriment to all users of the Service. HW considers spam to be any message which does any of the following: imposes an unreasonable or disproportionately large load on HW's infrastructure; is of a commercial nature; solicits entry into a web page; promotes or solicits the services of a business, charity or person; contains a file which is labeled with a URL address; promotes or offers a product or service; is a repeated posting; or solicits people to purchase or sell anything (except on an occasional, personal, basis such as the sale of an automobile in a usenet group designed for such posts). HW does not tolerate any spam in its Service. While HW makes attempts to prevent spam, it cannot guarantee that the Service will be spam-free. HW deploys automatic word and "Spam" filters that may terminate your postings and those of End Users without delivering them. The Company agrees to make commercially reasonable efforts to prevent the use or spread of spam through its own service and through the Service. HW may terminate access to any End User who is engaged in spamming or posting any spam to the Service and HW may prevent such End User from accessing the Service for a period of seven (7) years. Furthermore, if HW determines that an End User has engaged in spamming, HW may charge the Company a $1,000.00 spam clean-up charge.
D. Copyright. The Service must not be used to transmit or store copyrighted works of others without their permission or violate any person's copyright or other proprietary rights in any form or fashion. If HW determines that an End User, through his/her use of the Service, has infringed or may be infringing on anyone else's proprietary rights, including without limitation, violating another's copyright, HW shall, among other rights, terminate that End User's account and deny the End User access to the Service. In addition, if the Company does not: (i) terminate the account of an End User or cooperate with HW in terminating access to an End User who has violated another's copyright; (ii) implement a commercially reasonable policy ("DMCA Policy") dealing with copyright infringement and notification consistent with the terms of the Digital Millennium Copyright Act of 1998 ("DMCA"); or (iii) comply with or enforce the terms of its DMCA Policy, HW may, in its sole discretion, terminate this Agreement and all End Users' access. Upon receiving proper notification pursuant to the DMCA that information that is on the Service (including information an End User may have posted), is infringing another's rights, HW shall remove or block access to the material identified in that notification. If an End User has posted the information that is the subject of such notification, HW will take reasonable steps promptly to notify the Company and/or the End User (at its sole option) that such material has been removed or access to the material has been disabled. Upon receiving such notification, Company shall take reasonable steps promptly to notify the End User to whom such notification applies that such material has been removed or access to the material has been disabled.
E. Illegal and/or Offensive Posts. HW may also, in its sole discretion, terminate any End User's access if such End User, in HW's sole discretion, has been involved in transmitting, storing or using any of the following: access codes, credit card numbers, measures used to defeat identification or protection of copyrighted materials or other similar information; chain letters, pyramid schemes, or any other scheme in which people are recruited to make payments to others while expecting to receive payments from people who are recruited below them; child pornography, or any other illegal, offensive or inappropriate content. HW is required to notify the appropriate authorities if it becomes aware that any End User is engaged in posting of articles dealing with or depicting child pornography or any practice by which minors are solicited to engage in a sexual act.
F. Company's Responsibilities. If Company receives notice from HW that any End User has violated the Terms of Service or has engaged in behavior described in this Section 2, Company shall deny such End User access to the Service. If the Company becomes aware of any End User's breach of the Terms of Service or is aware or notified that an End User has engaged in behavior described in this Section 2, prior to HW providing notice of such to Company, Company must immediately notify HW of such and shall, at Company's own costs, take whatever commercially reasonable measures HW recommends.
3. Billing and Payment.
Company agrees to pay the amounts set forth in the Order Form or in the Invoice, and shall be subject to the terms of the Order Form or Invoice.
4. No Traffic Manipulation.
For purposes of determining usage in accordance with the terms of the Order Form, Company shall not intentionally or artificially manipulate the usage for any period of time for the purposes of achieving a lower usage.
This Agreement shall remain in force as long as HW is providing any Services to Company or End Users. HW may terminate the Company's and all End Users' access to the Service immediately if HW is not paid within 30 days of the date on which Service begins or if Company breaches this Agreement and does not cure such breach within fifteen (15) days after notice has been given to Company of such breach. HW may also terminate the Company's and all End Users' access to the Service if HW decides, in its sole discretion, to discontinue offering the Service; in which case the Company shall receive a pro-rated amount of its paid but unused fees (if any). Upon termination, HW may delete all information related to the Company's and End Users' accounts in its sole discretion.
6. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY. A. DISCLAIMER OF WARRANTIES.
HW PROVIDES THE SERVICE "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. HW DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE SERVICES, OR THAT THE SERVICE IS ERROR-FREE, AND HW SHALL NOT BE LIABLE IF THE COMPANY OR ANY END USER IS UNABLE TO ACCESS THE SERVICE OR FOR ANY CLAIMS MADE BY THIRD PARTIES. THE COMPANY SHALL NOT MAKE ANY REPRESENTATION, WARRANTY OR GUARANTEE RELATED TO THE SERVICE. THE COMPANY ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION.
B. LIMITATION ON LIABILITY. IN NO EVENT SHALL HW BE LIABLE FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WHETHER OR NOT FORESEEABLE AND EVEN IF HW HAS BEEN ADVISED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HW'S LIABILITY TO YOU AND TO END USERS IS LIMITED TO THE AMOUNT OF FEES YOU HAVE PAID TO HW IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY. Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to You. In that event, all disclaimers and limitations shall be enforced to the extent MAximum extent permissible, and any implied warranties shall be limited to thirty (30) days.
C. Indemnification. The Company shall defend and indemnify HW against all claims, losses, liabilities, damages, costs and expenses, including reasonable attorneys' fees, which HW may incur as a result of claims in any form relating to: (a) the Company or any End User's use of the Services, (b) the Company's or any End User's acts, omissions or misrepresentations, (c) any claim of intellectual property infringement related to the Company's or any End User's use of the Service, (d) any violation by the Company of any of the terms contained herein, or (e) any violation by any End User of the Terms of Service.
HW may assign or delegate all or a portion of the terms of this Agreement and the Company's account, along with any unused service due or credit balance at the sole discretion of HW without prior notice to the Company. This Agreement may not be assigned by Company without HW's prior written consent. When required by this Agreement or by law, HW shall send notice to the Company via the e-mail address for the Company's contact on record with HW. Company is required to keep HW updated with current information regarding its e-mail address. Any notices sent to the e-mail address of record with HW will be sufficient notice to the Company. Notice sent to the Company pursuant to these terms shall be deemed received by the Company on the date sent. Except for the terms of any Invoice or Order Form, this Agreement may not be amended except in a writing signed by both parties. This Agreement will be governed by the laws of the State of Florida as such laws apply to contracts between residents performed entirely within FLORIDA, expressly excluding that body of law known as conflict of laws. Any action or proceeding arising from or relating to this Agreement must be brought in a state or federal court having jurisdiction over Orange County, Florida, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties hereby agree that the United Nations Convention on the International Sale of Goods will not apply to this transaction. English shall be the controlling language of this Agreement. All monetary amounts specified hereunder or in any invoice shall be read to be in United States' dollars. Except as provided in Sections 5(A) & 5(B), the parties' rights and remedies under this Agreement are cumulative. If HW is forced to bring legal action to enforce this Agreement, HW will be entitled to receive its attorneys' fees, court costs and other collection expenses, in addition to any other relief it may receive if it is the prevailing party. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If one or more of the provisions of this Agreement for any reason shall be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not effect any other provision of this Agreement and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained in this Agreement. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word "including" means "including but not limited to". This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersede any and all prior agreements, oral or written, between the parties prior to this Agreement. No terms, provisions or conditions of any purchase order or other business form or written authorization used by you will have any effect on, or otherwise modify, the rights, duties or obligations of the parties under this Agreement, regardless of any failure of HW to object to such terms, provisions, or conditions.