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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. Highwinds is not liable for the loss or
removal of any data posted by using our Services or software. By
using our Services, the Company and its End Users expressly waive
the right to seek damages with respect to any such loss or removal.
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.
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