Highwinds Media Group, Inc. - Terms of Service Wholesale Account

Highwinds Media Group, Inc. - Terms of Service Wholesale Account IMPORTANT - THIS IS A LEGAL AGREEMENT (THE AGREEMENT ) BETWEEN YOUR COMPANY AND HIGHWINDS MEDIA GROUP, INC. D/B/A WIND TUNNEL AND THUNDERNEWS.NET ( HIGHWINDS ). IT IS ESSENTIAL THAT YOU READ THESE TERMS CAREFULLY BEFORE CLICKING ON THE I AGREE OR I DISAGREE BUTTON BELOW. BY CLICKING ON THE I AGREE BUTTON AND BY YOUR COMPANY S (AS DEFINED BELOW) OR END USERS (AS DEFINED BELOW) USE OF THE SERVICES OR SOFTWARE, YOUR COMPANY ACKNOWLEDGES THAT IT HAS READ THE TERMS OF THIS AGREEMENT, THAT IT UNDERSTANDS THIS AGREEMENT, AND THAT IT AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOUR COMPANY DOES NOT AGREE TO THE TERMS CONTAINED IN THIS AGREEMENT, PROMPTLY CLICK THE I DO NOT AGREE BUTTON AT THE BOTTOM OF THIS AGREEMENT. IF YOU MISTAKENLY CLICK THE I AGREE BUTTON, PROMPTLY NOTIFY HIGHWINDS AT 111 E. FAIRBANKS AVE, WINTER PARK, FLORIDA 32789 WITHIN THIRTY (30) DAYS OF THE DATE OF YOUR COMPANY S INVOICE, AFTER SUCH DATE NO ADJUSTMENT IN YOUR ACCOUNT WILL BE MADE. IF YOUR COMPANY DOES NOT AGREE WITH THE TERMS CONTAINED IN THIS AGREEMENT, YOUR COMPANY NOR ITS SUBCRIBERS WILL NOT HAVE ACCESS TO OR BE ABLE TO USE HIGHWINDS SERVICES. FOR YOUR CONVENIENCE AND YOUR RECORDS, HIGHWINDS SUGGESTS THAT YOU PRINT AND RETAIN OR SAVE A COPY OF THIS AGREEMENT. Highwinds 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 Highwinds own subscribers (hereafter the Service or Services ). Highwinds will provide the Service to the entity on whose behalf you are executing this agreement (the Company ) for a fee and shall do so pursuant to the following terms. By agreeing to this Agreement and using the Service, the Company acknowledges that it is

duly formed organization with the power and authority to enter into this Agreement and perform its obligations hereunder. The person executing this Agreement on behalf of the Company hereby represents and warrants to Highwinds that such person is a duly authorized agent of the Company with the power and authority to bind the Company by your actions. 1. Usenet Service. Highwinds 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. Highwinds 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, Highwinds shall not block access to the Services to an End User using an IP addresses within this range. Highwinds 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. Highwinds 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 Exhibit A if such is completed and attached or pursuant to the invoice sent by Highwinds to the Company (the Invoice ) if Exhibit A is not completed and attached. 2. Content. A. General. It is important that Company understands that, except in order to comply with applicable law, Highwinds cannot and does not control, review or modify the content contained in the Service. Highwinds is not responsible for the content of any transmissions over the Service. Company understands that Highwinds will provide unfiltered Usenet access to End Users. Highwinds expects that all End Users use caution and common sense-when using Usenet and abide by Highwinds Terms of Service set forth on its website, as such may be updated from time to time by Highwinds (the Terms of Service ). Neither the Company nor any End User should have an expectation of privacy in any account or files transmitted through the Service. Highwinds cannot ensure that all private email will remain private.

B. Your Covenants to Highwinds. The Company hereby covenants and 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, and (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. 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, Highwinds considers improper and abusive positing as a detriment to all users of the Service. Highwinds considers spam to be any message which does any of the following: imposes an unreasonable or disproportionately large load on Highwinds 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). Highwinds does not tolerate any spam in its Service. While Highwinds makes attempts to prevent spam, it cannot guarantee that the Service will be spam-free. Highwinds deploys automatic word and "Spam" filters that may terminate your postings 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. Highwinds may terminate access to any End User who is engaged in spamming or posting any spam to the Service and Highwinds may prevent such End User

from accessing the Service for a period of seven (7) years. Furthermore, if Highwinds determines that an End User has engaged in spamming, Highwinds may charge the Company a $100.00 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 Highwinds determines that an End User, through his/her use of the Service, has infringed on anyone else s proprietary rights, including without limitation, violating another s copyright, Highwinds 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 Highwinds 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 1988 ( DMCA ); or (iii) comply with or enforce the terms of its DMCA Policy, Highwinds may, in its sole discretion, terminate this Agreement and all End User s 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, Highwinds 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, Highwinds 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. Highwinds may also, in its sole discretion, terminate any End User s access if such End User, in Highwinds 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. Highwinds 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 Highwinds that any End User has violated the Terms of Service or has engaged in behavior described in this Section 2, Company shall make best efforts to 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 has engaged in behavior described in this Section 2 prior to Highwinds providing notice of such to Company, Company shall notify Highwinds of such and shall, at its own costs, take whatever commercially reasonable measures Highwinds recommends. 3. Billing and Payment. Customer agrees to pay the amounts set forth in Exhibit A or in the Invoice if Exhibit A is not completed and attached hereto. Customer agrees to pay Highwinds pursuant to the terms of the Exhibit A or the Invoice if Exhibit A is not completed and attached hereto. 4. Termination. A. Termination. Unless otherwise terminated pursuant to the terms hereof, the term of this Agreement shall begin and end on the dates specified in Exhibit A or if there is no Exhibit A completed and attached then on the dates set forth in the Invoice. Highwinds may terminate the Company s and all End Users access to the Service immediately if Highwinds is not paid within 20 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. Highwinds may also terminate the Company s and all End Users access to the Service if Highwinds 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, Highwinds may delete all information related to the Company s and End Users accounts.

B. Renewal. Unless otherwise terminated as set forth above, the terms hereof shall renew for the renewal periods set forth in Exhibit A or if there is no Exhibit A, then in your invoice. 5. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY. A. DISCLAIMER OF WARRANTIES. HIGHWINDS 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. HIGHWINDS DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE SERVICES, AND HIGHWINDS SHALL NOT BE LIABLE IF THE COMPANY OR ANY END USER IS UNABLE TO ACCESS THE SERVICE. 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 HIGHWINDS BE LIABLE FOR ANY SPECIAL, 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. HIGHWINDS LIABILITY TO YOU IS LIMITED TO THE AMOUNT OF FEES YOU HAVE PAID TO HIGHWINDS IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY. C. Indemnification. The Company shall defend and indemnify Highwinds against all claims, losses, liabilities, damages, costs and expenses, including reasonable attorneys' fees, which Highwinds 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.

6. Miscellaneous Highwinds 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 Highwinds without prior notice to the Company. When required by this Agreement or by law, Highwinds shall send notice to the Company via the e-mail address for the Company s contact on record with Highwinds. The Company is required to keep Highwinds updated with current information regarding its e-mail address. Any notices sent to the e-mail address of record with Highwinds 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, 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 Georgia as such laws apply to contracts between residents performed entirely within Georgia, 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 Gwinnett County, Georgia, 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 Highwinds is forced to bring legal action to enforce this Agreement, Highwinds 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 Highwinds to object to such terms, provisions, or conditions. Consent to Electronic Commerce Transactions. By agreeing below, the Company hereby authorizes and consents to transacting business electronically both for the purposes of this Agreement and for future business transactions with Highwinds. IF THE COMPANY AGREES TO BE BOUND BY THE ABOVE TERMS, PLEASE ENTER THE COMPANY S NAME, YOUR NAME AND YOUR TITLE AND CLICK I AGREE. IF THE COMPANY DOES NOT AGREE, PLEASE CLICK I DO NOT AGREE. IF YOU CLICK, I DO NOT AGREE NEITHER THE COMPANY NOR ANY OF ITS END USERS WILL BE ABLE TO USE THE SERVICES. TYPING THE COMPANY S NAME AND CLICKING I AGREE WILL BE DEEMED TO BE YOUR AND THE COMPANY S SECURE, ELECTRONIC SIGNATURE UNDER THE GEORGIA ELECTRONIC RECORDS AND SIGNATURE ACT, E-SIGN AND ANY OTHER APPLICABLE FEDERAL, STATE OR LOCAL LAW, RULE OR ORDINANCE. ٱ I AGREE ٱ I DO NOT AGREE Type Company s Name: Type Your Individual Name & Title: E-mail address:

EXHIBIT A Price, Minimum Ports, Charge Per Port, Term, Renewal If not complete, you will receive or have received an invoice with these terms which invoice is hereby incorporated into this Agreement by this reference.