February 3, 2023
IMPORTANT - THIS IS A LEGAL AGREEMENT (THE "AGREEMENT") BETWEEN YOUR COMPANY ("You" or "Company") AND WHOLESALE NEWS, INC. ("Provider", "We" or "Us") AND PROVIDER’S AFFILIATES (including but not limited to HW Media Group, Inc.). ALL OF OUR WHOLESALE CUSTOMERS THAT PROVIDE USENET SERVICES TO END USERS MUST COMPLY AND WILL BE BOUND TO THESE TERMS. WE RESERVE THE RIGHT TO MODIFY AND CHANGE THESE TERMS AT ANY TIME WITHOUT NOTICE. YOU UNDERSTAND AND AGREE THAT IT IS YOUR OBLIGATION REVIEW THESE TERMS FROM TIME TO TIME IN ORDER TO STAY CURRENT ON RULES AND OBLIGATIONS.
We are 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 our own subscribers (hereafter the "Service" or "Services"). We will provide the Services to the entity (the "Company") on whose behalf you executed the separate written agreement that covers fees and service terms ("Order Form").
We will provide to Company's subscribers ("End Users") access to all Usenet groups carried by the Service via servers accessed through your domain name. 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. We may adjust the Usenet groups we carry at any time and in our sole discretion. Company shall specify a range of IP addresses which may access the Service. We 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. We 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 we accepted or if the number is potentially harmful to our Services or pursuant to the invoice sent by us to the Company (the "Invoice"). Company acknowledges and agrees that we shall be the exclusive provider of Wholesale Usenet Services to Company on a worldwide basis during the term of any agreement between Provider and Company for Usenet Services. Company shall not be allowed to acquire or consolidate any UseNet services without the written consent of Provider while it is receiving UseNet services from Provider.
Content & Your Responsibilities
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 this 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, it shall comply with all applicable laws, regulations, rules, ordinances, and orders regarding its activities related to the Services and this Agreement.
There is not any specific definition of "spam", however, We consider improper and abusive positing as a detriment to all users of the Service. We consider spam to be any message which does any of the following: imposes an unreasonable or disproportionately large load on our 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. We do not tolerate any spam. While We make attempts to prevent spam, We cannot guarantee that the Service will be spam-free. We deploy 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 Services We provide. We may terminate access to any End User who is engaged in spamming or posting any spam to the Service and We may prevent such End User from accessing the Service. Furthermore, if We determine that an End User has engaged in spamming, We may charge Company a spam clean-up charge.
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 We determine 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, We 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 Provider in terminating access to an End User who has violated another's copyright; (ii) implement a 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, We may, in our 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, We may 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, We may notify the Company and/or the End User 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. Company agrees that it will maintain a Repeat Infringer Database at all times.
Illegal and/or Offensive Posts.
We may also, in our sole discretion, terminate any End User's access if such End User, in our 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. We are required and will notify the appropriate authorities if We become 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.
If Company receives a notice that any End User has violated this Agreement or has engaged in behavior that We consider a violation of this Agreement, Company shall deny such End User access to the Service. If the Company becomes aware of any End User's breach of this Agreement or is aware or notified that an End User has engaged in behavior described in this Agreement, prior to receiving a notice, Company must immediately notify Provider of such and shall, at Company's own costs, take whatever commercially reasonable measures We recommend.
Billing and Payment.
Company agrees to pay the amounts set forth in the Order Form or in the Invoice, and Company shall be subject to the terms of the Order Form or Invoice.
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 We are providing any Services to Company or End Users. We may terminate the Company's and all End Users' access to the Service immediately if We are not paid within 30 days of the date on which Service begins or if Company breaches this Agreement. We may also terminate the Company's and all End Users' access to the Service if We decide, in our sole discretion to terminate Services to Company for any reason, in which case the Company shall receive a pro-rated amount of its paid but unused fees (if any). Upon termination, We may delete all information related to the Company's and End Users' accounts in our sole discretion.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.
DISCLAIMER OF WARRANTIES.
WE 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. WE DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE SERVICES, OR THAT THE SERVICE IS ERROR-FREE, AND WE 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.
LIMITATION ON LIABILITY.
IN NO EVENT SHALL WE 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 WE HAS BEEN ADVISED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE'S LIABILITY TO YOU AND TO END USERS IS LIMITED TO THE AMOUNT OF FEES YOU HAVE PAID TO PROVIDER IN THE 6 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY.
The Company shall defend and indemnify Provider against all claims, losses, liabilities, damages, costs and expenses, including reasonable attorneys' fees, which We 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.
We 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 Provider to one of our affiliated entities without prior notice to the Company. This Agreement may not be assigned by Company without Provider’s prior written consent. When required by this Agreement or by law, We shall send notice to the Company via the e-mail address for the Company's contact on record. Company is required to keep Provider updated with current information regarding its e-mail address. Any notices sent to the e-mail address of record 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.
Governing Law & Venue
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. If Provider is forced to bring legal action to enforce this Agreement, We will be entitled to receive its attorneys' fees, court costs and other collection expenses, in addition to any other relief it may receive. 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 affect 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 and the Order Form 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 Provider to object to such terms, provisions, or conditions.