The following Acceptable Use Policy is applicable to Carrot Technologies (”Carrot”) Internet service. Carrot will provide Customer with Internet service pursuant to the Design and Services Agreement Customer has signed and this Acceptable Use Policy (”Policy”). Pursuant to Section 11 of the Design and Services Agreement, Customer agrees to abide by the terms and conditions of this Policy at all times during the term of the Design and Services Agreement and to periodically review this Policy as posted here on Carrot’s website. Carrot may, from time to time, modify this Policy. All changes to the Policy will be posted here. Customer’s continued use of Carrot’s Internet services after the effective date of any changes to the Policy shall be conclusively deemed as its assent to the revised changes. All undefined capitalized terms in this Policy shall have the same definitions as those used in the Design and Services Agreement. Customer understands and agrees that Carrot may terminate its services, with or without advance notice, if Customer fails to abide by any of the terms and conditions of this Policy.
I. Customer’s Obligations
1.1. Except as specifically set forth in the Design and Services Agreement or otherwise specified herein, Customer shall be responsible for obtaining, installing, and maintaining all equipment, software and/or communications services necessary for inter-connection with Carrot’s network or otherwise for use in conjunction with the applicable Carrot services. Customer shall have sole responsibility for ensuring that such equipment, software and/or services are compatible with Carrot’s network. Should Customer undertake to connect any Carrot products or services to any third party service or network, Customer agrees to indemnify and hold Carrot harmless from any damages, costs, liabilities and expenses resulting from such connection or attempted connection, including but not limited to damages resulting from unauthorized use of, or access to, Carrot’s network.
1.2. Except as specifically set forth in the Design and Services Agreement or otherwise specified herein, Customer shall, at its own expense, take all physical and information system security measures necessary to protect all equipment, software, data and systems located on Customer’s premises or otherwise in Customer’s control and used in connection with Carrot’s services. Customer acknowledges and agrees that Carrot shall not be liable, either in contract or in tort, for any loss resulting from any unauthorized access to, or alteration, theft, destruction, corruption, or use of, equipment, software, data, or systems used in connection with the services.
1.3. Except as specifically set forth in the Design and Services Agreement or otherwise specified herein, Customer shall be responsible for the use and compatibility of all equipment and software not provided by Carrot. Notwithstanding this provision, Customer shall provide Carrot the right of access to perform any configuration of customer equipment for purposes of providing services under the Design and Services Agreement. In the event that Customer uses equipment or software that is not provided by Carrot which impairs Customer’s use of the services, Customer shall nonetheless be liable to Carrot for payment for all ordered services. Carrot is not responsible for any changes in the services caused by Customer’s hardware or software failure or if the services cause Customer’s equipment or software to become obsolete, require modification or alteration, or otherwise affect performance of equipment or hardware not provided by Carrot.
II. Carrot’s Obligations
2.1. In case of network downtime, where IP connectivity is not available between Customer’s router and Carrot’s network, Carrot technicians shall perform basic troubleshooting techniques to identify the problem.
III. Backup of Customer’s Data
3.1. Periodically, Carrot performs complete backups of data on its server. Backups are scheduled to minimize the drain on system resources and to optimize system performance. Therefore, the time of day or night when Carrot backs up the system may vary somewhat from day to day.
3.2. Except as specifically set forth in the Design and Services Agreement, Customer understands and acknowledges that Carrot backs up the server solely as a courtesy to all subscribers to help operational efficiencies and to prevent loss of data.
3.3. Except as specifically set forth in the Design and Services Agreement, Customer understands and acknowledges that Carrot has no duty under this Policy to back up the data on its server.
3.4. Except as specifically set forth in the Design and Services Agreement, Customer understands and acknowledges that Carrot may discontinue periodic backups of the server data at any time, without prior notice to Customer.
3.5. Except as specifically set forth in the Design and Services Agreement, Customer understands and acknowledges that Customer shall be solely responsible for backing up its own data on Customer’s own computer or network, notwithstanding Carrot’s backups of the data on Carrot’s server.
3.6. Except as specifically set forth in the Design and Services Agreement, Customer understands and acknowledges that Carrot shall have no liability whatsoever for any data loss incurred by Customer and Customer agrees to defend, hold harmless, and indemnify Carrot from any claims for damages by any third parties resulting from any such data loss.
3.7. Customer understands and acknowledges that Carrot has fully informed it of Carrot’s backup policies and that Customer will not rely upon or claim to have relied upon Carrot’s backup of the data on Carrot’s server under this Policy, for any purpose whatsoever to which such reliance may be related.
3.8. Customer understands and acknowledges that this Policy creates no bailment of Customer’s data, information, or other property, and that Carrot shall, under no circumstances, be deemed a carrier, bailee, or warehouseman of Customer’s data, information, or other property. Customer assumes all risk of data loss under the terms of this Policy.
IV. Technical Support
4.1. Carrot shall provide Customer with limited technical support related to the Services as set forth in the Design and Services Agreement.
V. Security Systems
5.1. Customer understands and agrees that the services offered by Carrot are not secure Internet communications. Accordingly, Customer accepts the services “as is” and assumes all risk of loss as to the security, or lack thereof, of the services offered by Carrot.
VI. Proprietary Information
6.1. In light of the nature of the services, Carrot and the Customer recognize that from time to time they may be in possession or control of proprietary and confidential information (the “Proprietary Information”) of the other party.
6.2. For purposes of this Policy, “Proprietary Information” shall mean all records, reports, process, models, computer programs, technical or business information, pricing, proposals or data which the disclosing party considers confidential or proprietary.
6.3. In the event that Carrot or Customer inadvertently disclose Proprietary Information to the other, the party which receives the Proprietary Information agrees to take such precautions as may be reasonably necessary to protect such information from being disclosed to others. Notwithstanding the above, Customer understands and acknowledges that in light of section 5, Customer has assumed all risk of loss arising out of the fact that the services offered by Carrot are not secure.
VII. Network Monitoring
7.1. Carrot shall have the right, but not the duty, to monitor any communications occurring through its system and to disclose such communications to any third party as may be necessary or required to: (i) operate Carrot’s network, (ii) administer and manager Carrot’s business, (iii) provide all of Carrot’s Customers with quality Internet access service, (iv) offer all of Carrot’s Customers with Internet opportunities which Carrot reasonably believes will be of interest to its Customers, (v) comply with all applicable laws and regulations, including any industry self-regulation policies; (vi) verify and enforce compliance with this Policy and the Design and Services Agreement, (vii) protect Carrot and its Customers from disruption of any services, and (viii) satisfy any law, regulation, or other governmental request.
7.2. Customer acknowledges Carrot’s right to monitor communications and hereby consents to the reasonable and periodic monitoring and disclosure of online communications occurring on Carrot’s network.
7.3. Carrot reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in Carrot’s sole and absolute discretion, are unacceptable, undesirable, or in violation of applicable law, industry self-regulation policies, or this Policy or the Design and Services Agreement.
7.4. Customer agrees that Carrot has the right to cooperate in any investigation that is requested by parties alleging that Customer has violated any law or any provision of this Policy or the Design and Services Agreement.
7.5. Customer agrees that Carrot has the right to disclose to the appropriate authorities any evidence of illegal activity Carrot discovers in the course of any investigation requested by an outside party, or discovered in the routine operation and maintenance of Carrot’s services and network components. Customer further agrees that Carrot may make copies of such materials for the use of those authorities in their investigation if requested for the purpose of preservation of evidence.
VIII. System Rules
8.1. Customer understands and acknowledges that Carrot retains the right, but not the duty, in its sole discretion and without prior notice or liability, to restrict or terminate Customer’s access to the Internet through Carrot’s services if Customer violates the rights of third parties, the terms of this Agreement, or any applicable federal, state, local, or international laws or regulations.
8.2. Customer acknowledges that much of the content on the Internet is protected by copyright, patent, trademark, or other law. Customer agrees that it shall not transmit to or disseminate from the Internet any material that is subject to the protection of these laws without the prior express permission of the owner of said property.
8.3. Customer may not:
(1) Restrict or inhibit any other Customer from using and enjoying Carrot’s services, or the Internet;
(2) Upload, post, mail, or otherwise transmit in any manner any content, communication, or information that is unlawful, harassing, threatening, abusive, hateful, defamatory, obscene, or otherwise objectionable to Carrot. Said prohibited communications include, but are not limited to, otherwise objectionable information of any kind, any transmissions constituting, encouraging, soliciting, or aiding or abetting any conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law, including without limitation the U.S. export control laws and regulations;
(3) Upload, post, mail, or otherwise transmit in any manner any content, communication, information, or software that contains a virus, cancelbot, trojan horse, logic bomb, worm or other harmful component;
(4) Upload, post, mail, publish, transmit, reproduce, or distribute in any way, information, software, or other material that is protected by copyright, patent, or other proprietary right without obtaining the necessary permission from the owner for such actions;
(5) Send unsolicited advertising or promotional materials to other Carrot Customers or Internet users;
(6) Run or allow any other person to run Maillist, LISTSERV or any form of auto-responds from Customer’s account without the prior consent of Carrot.
(7) Violate the security of any computer network, or crack passwords or security encryption codes of any web site, content provider, or other access provider;
(8) Transfer or store illegal material including that deemed threatening or obscene, or engage in any kind of illegal activity;
(9) Solicit other Customers to become Customers of other competitive information service providers;
(10) Transfer or attempt to transfer any files not specifically permitted, or access any FTP hosts that do not permit anonymous transfers (unless the transfer is to or from an account Customer is authorized to access on the remote host); or
(11) Violate any of the rules, regulations and policies of those networks and computer systems accessed via Customer’s account.
IX. Anti-Spamming Policy
9.1. Definitions.
(1) “Recipient” means any entity capable of receiving an electronic communication on the Internet, including, but not limited to, computers, machines, electronic mailboxes, mailing lists, newsgroups, electronic bulleting boards, World Wide Web pages and sites, file servers, communications servers, mail servers, FTP hosts, telnet hosts, chat facilities, any resource accessible via the Internet, or any person or group of persons using those electronic services.
(2) “Implied consent” means the consent to send an electronic message that a reasonable recipient of such a message would, under all the relevant circumstances of the communication, ordinarily give to the sender of the message. Determinations of reasonableness and “implied consent” shall be at Carrot’s sole discretion.
(3) “Spamming” means:
(A) Sending one electronic message once or repeatedly to any recipient without that recipient’s express or implied consent;
(B) Sending multiple electronic messages once or repeatedly to any recipient without that recipient ’s express or implied consent;
(C) Sending one or more electronic messages once or repeatedly to any group of recipients without the express or implied consent of each of the recipients in that group;
(D) Sending any electronic message to any recipient, whether once or repeatedly, when the primary purpose of the message is to harass, bother, annoy, disturb, distract, offend, embarrass, threaten, coerce, or cause distress, unwanted attention or discomfort to the recipient, for any reason whatsoever, regardless of the recipient’s express or implied consent;
(E) Sending to any recipient or group of recipients without the express consent of the recipient or of each of the recipients in that group, any electronic message that solicits participation in any of the following: Chain letters, Multilevel marketing opportunities, Franchises, Business opportunity ventures, Investments, Pyramid schemes, or Charitable donations.
(F) Sending any electronic message to any recipient, whether once or repeatedly, when the primary purpose of the message is to cause excessive use of the computers or telecommunications equipment of the recipient, of Carrot, or of any third person or network.
9.2. Customer shall not engage in any spamming of any kind at any time. Carrot reserves the right to terminate the services of any Customer who engages in spamming.
9.3. Carrot reserves the right to block or filter mass solicitations on or through Carrot’s service that constitute “spamming” as defined in this Policy, regardless of the source or origin of such mass solicitations.
9.4. Customer shall not cause or attempt to cause traffic levels to Carrot’s Service or any other network’s service to rise due to: (1) transmitting large files, (2) “mailbombing” (transmissions intended to raise the cost of another network provider’s access through excessive traffic levels), or (3) repeatedly sending the same content to another person.
9.5. Carrot strictly prohibits the use of its equipment to send or deliver any unsolicited electronic mail advertisements.
X. Legal Notices
10.1. EXCEPT AS SPECIFICALLY SET FORTH IN THIS POLICY, CARROT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY CARROT SERVICES. CARROT SPECIFICALLY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY INTELLECTUAL PROPERTY WARRANTIES OF ANY TYPE.
10.2. Customer understands and agrees that neither Carrot, nor any of its affiliates, operates or controls the Internet in any way. All merchandise, information and services offered or made available or accessible on the Internet are offered or made available or accessible by third parties that are not affiliated with Carrot. Customer, and any party accessing the Services through Customer, ASSUMES TOTAL RESPONSIBILITY AND RISK FOR ITS USE OF THE SERVICES AND THE INTERNET. NEITHER CARROT NOR ITS AFFILIATES MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER (INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR NONINFRINGEMENT, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH THE INTERNET, AND SHALL NOT BE LIABLE FOR ANY COST OR DAMAGES ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY SUCH TRANSACTION. IT IS SOLELY CUSTOMER’S RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL OPTIONS, ADVICE SERVICES AND OTHER INFORMATION, AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE, PROVIDED THROUGH THE CARROT SERVICE OR ON THE INTERNET GENERALLY.
10.3. CUSTOMER UNDERSTANDS FURTHER THAT THE INTERNET CONTAINS UNEDITED MATERIALS SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE OFFENSIVE TO SOME PEOPLE, AND CARROT HAS NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY FOR ANY SUCH MATERIALS.
10.4. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY CARROT, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY. NEITHER CARROT NOR ITS AFFILIATES WARRANTS THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE ON THE SERVICE IS FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS.
10.5. UNDER NO CIRCUMSTANCES SHALL CARROT, ITS AFFILIATES, EMPLOYEES OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM CUSTOMER’S USE OR INABILITY TO USE THE SERVICE OR TO ACCESS THE INTERNET OR ANY PART THEREOF, OR CUSTOMER’S RELIANCE ON OR USE OF INFORMATION, SERVICES OR MERCHANDISE PROVIDED ON OR THROUGH THE SERVICE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE.
