These Terms and Conditions are included and incorporated into all order forms entered into between Carrot and Client, whether or not they are explicitly incorporated by reference. By executing a Carrot order form, Client agrees to be bound by these Terms & Conditions, including all documents incorporated by reference and any and all updates thereto. Carrot and Client are each a "Party" to this Agreement and, collectively, the "Parties."
Scope of Services. Subject to the terms and conditions of this Agreement, Carrot shall provide the Carrot Service as specifically set forth in order forms placed by Client and accepted by Carrot that reference this Agreement. An initial order form is set forth in the Master Service Agreement. Carrot may agree to provide additional services to Client after the Effective Date by both Parties executing an additional order form specifying the additional services. All order forms to this Agreement are part of this Agreement and if there is any conflict between an order form and the Agreement, the terms set forth in the order form will govern.
Implementation and Customization Services. Carrot will perform only those implementation services set forth on an order form ("Implementation Services") in order to integrate the Carrot Service with Client websites. Client will fully cooperate with Carrot and its technical personnel in a timely manner to enable Carrot to complete the Implementation Services. Client will (if applicable) direct a subdomain configured as directed by Carrot to a server address supplied to Client by Carrot. Any additional customization services (the "Customization Services") requested by Client that go beyond the scope of the Implementation Services will be set forth in a written statement of work executed by both Parties and attached to this Agreement as an Exhibit.
Changes to Carrot Service. During the Term, Carrot may make (i) minor modifications to the Carrot Service to fix bugs and correct errors and (ii) minor enhancements to the features of the Carrot Service ("Modifications"), and Carrot will provide such Modifications to Client at no additional cost. However, in the event Carrot adds features or functionality to the Carrot Service or offers Third-Party Applications (as defined below) into the Carrot Service ("System Additions"), Carrot may offer such System Additions to Client for additional fees as determined by Carrot. If Client agrees to purchase System Additions from Carrot, then Client and Carrot will enter into a new order form to reflect the inclusion of such System Additions. Carrot will at all times during the term of this Agreement continue to support Modifications for the original version of the Carrot Service.
Third-Party Applications. Carrot is not responsible for any aspect of any third-party products or services that are integrated into or that interoperate with the Carrot Service ("Third-Party Applications") and that are enabled or supported by the Carrot Service or that Client may enable, procure, or connect to through the Carrot Service, or any interoperation, descriptions, promises, or other information related to the foregoing. If Client installs or enables Third-Party Applications for use with the Carrot Service, Client agrees that Carrot may enable such third-party providers to access Client Data (as defined below) for the interoperation of such Third-Party Applications with the Carrot Service, and any exchange of data or other interaction between Client and a third-party provider is solely between Client and such third party provider pursuant to a separate privacy policy or other terms governing Client's access to or use of the Third-Party Applications. Carrot shall not be responsible for any disclosure, modification, or deletion of Client Data resulting from any such access by Third-Party Applications or third-party providers.
Support Services. Carrot will provide reasonable support services to Client during normal business hours consistent with its standard practices and generally accepted industry standards at no additional charge.
System Monitoring. Carrot continuously monitors the Carrot Service to facilitate Carrot's operation of the Carrot Service, to help resolve Client service requests, to detect and address threats to the functionality, security, integrity, and availability of the Carrot Service as well as any content, data, or applications in the Carrot Service, and to detect and address illegal acts or violations of this Agreement. Carrot monitoring tools do not collect or store any Client Data residing in the Carrot Service, except as needed for such purposes. Carrot does not monitor, and does not address issues with, Third-Party Applications or any non-Carrot software provided by Client or any of Client's authorized users that is stored in, or run on or through, the Carrot Service. Information collected by Carrot monitoring tools (excluding Client Data) may also be used to assist in managing Carrot's product and service portfolio, to help Carrot address deficiencies in its product and service offerings, and for license management purposes.
Service Analyses. Carrot may (i) compile statistical and other information related to the performance, operation and use of the Carrot Service, and (ii) use data from the Carrot Service in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses (i) and (ii) are collectively referred to as "Service Analyses"). Carrot will not incorporate Client Data, personal information or Confidential Information (as defined below) in a form that could serve to identify Client or any individual. Carrot retains all intellectual property rights in Service Analyses.
Maintenance and Termination
As between Carrot and Client, all title and intellectual property rights in and to all electronic data or information submitted to and stored in the Carrot Service by Client and its authorized users ("Client Data") is provided exclusively by Client and its authorized users. Client acknowledges and agrees that in connection with the provision of the Carrot Service, Carrot may store and maintain Client Data for a period of time consistent with Carrot's standard business processes for the Carrot Service. Following expiration or termination of the Agreement or a Client account, if applicable, Carrot may deactivate the applicable Client account(s) and delete any data therein. Client grants Carrot the right to host, use, process, display and transmit Client Data to provide the Carrot Service pursuant to and in accordance with this Agreement and the applicable order form. Client has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Client Data, and for obtaining all rights related to Client Data required by Carrot to provide the Carrot Service and otherwise perform under this Agreement. Upon Client's reasonable request, Carrot will make Client Data available to Client.
While Using Carrot Service: When you use Carrot's admin dashboard, we let you see some important information about your customers that we think you need to help them. You can download this information as a .csv file whenever you want until you stop using our service.
Upon Termination:
Once you've stopped using our service, you can ask for an export of the above referenced customer information for up to a year.
There will be no access to chat messages, customer history, or any information other than the exportable data that was available during the use of the Carrot Service.
Definition: The term "Integrated Payment Processor" refers to third-party companies and organizations that are duly authorized to process ACH, credit card, debit card, and other payment types on behalf of the Seller using Carrot's services.
Limitation of Liability: Carrot is not a party to, nor does it have any responsibility or liability with respect to any transactions, agreements, and/or payments made through Integrated Payment Processors made available to Clients and their Customers on the Platform. Carrot does not hold any liability for any loss, damage, or issues arising from the use of any Integrated Payment Processor and will not be responsible for any unauthorized transactions, disruptions, errors, or unavailability of any Integrated Payment Processor.
Outside Features and Support Limitation: Carrot will only support features and services that are included in our current integration with the chosen Integrated Payment Processor. Any outside features, services, or functionalities not included in the current integration are not supported by Carrot, and Carrot holds no responsibility or liability for any issues, damages, or losses arising from the use of such outside features.
Third-party Terms: All transactions processed through Integrated Payment Processors are subject to the terms and conditions of the respective payment processor. Clients and their customers are responsible for reviewing and agreeing to those terms and conditions prior to completing transactions. Carrot does not control and is not liable for the security or performance of the Integrated Payment Processors.
Dispute Resolution: Any dispute arising out of transactions made through Integrated Payment Processors must be resolved between the Client or the Customer and the respective Integrated Payment Processor. Carrot will not mediate or resolve any disputes and is not responsible for any resolution or lack thereof between the involved parties.
Indemnification: Clients agree to indemnify, defend, and hold harmless Carrot, its affiliates, officers, directors, employees, agents, and licensors from any claim, demand, loss, liability, or expense (including attorney's fees) arising out of or relating to the use or integration of any Integrated Payment Processor.
Acknowledgment: By using Carrot, Clients acknowledge and agree that Carrot is not a party to any payment processing agreements between Clients and the Integrated Payment Processors, and that the Integrated Payment Processors are solely responsible for all liabilities and obligations related to payment processing services provided to Clients and their Customers.
Amendments: Carrot reserves the right to amend this section at any time, and it is the Client's responsibility to review these terms regularly for any changes. Continued use of Carrot following the posting of changes will mean that the Client accepts and agrees to the changes.
No Liability for Submission and Maintenance: The user acknowledges and agrees that Carrot Inc. ("the Company") merely submits and maintains mobile applications ("Apps") on behalf of the user through the Apple App Store and Google Play Store ("App Stores"). The Company shall not be liable or held responsible for any issues, rejections, or removals related to the App Stores' guidelines, policies, or any other reasons the App Stores may cite.
Removal from Stores: While the Company strives to ensure compliance with App Stores' policies, the user recognizes that the App Stores have sole discretion over the hosting, maintenance, and visibility of Apps. Consequently, the Company shall not be held responsible or liable if an App is removed or delisted from any App Store for any reason.
No Guarantee of Continuity: The Company does not guarantee uninterrupted or continued availability of the Apps on the App Stores. Factors beyond the Company's control, including but not limited to changes in App Stores' policies, technical failures, or other unforeseen issues, may affect the availability of the Apps.
Indemnification: The user agrees to indemnify, defend, and hold harmless the Company, its directors, officers, employees, and agents, from and against any and all claims, liabilities, damages, losses, or expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any actions, claims, or disputes concerning the submission, maintenance, availability, or removal of Apps from the App Stores.
Risk Acknowledgment: By using the Company's services for App submission and maintenance, the user expressly understands and agrees that they assume all risks related to the submission, maintenance, and availability of their Apps on the App Stores. The user further acknowledges that they are solely responsible for ensuring that their Apps comply with all App Stores' policies, guidelines, and any other requirements.
Responsibility:
The parties mutually acknowledge that the Client shall be the sole initiator and responsible entity for all messaging campaigns. This includes, but is not limited to, SMS, MMS, Push, Browser, Email, and any other related messaging mediums. It is the responsibility of the Client, irrespective of Carrot Inc's role in creating or managing such campaigns, to adhere to and follow all relevant laws, regulations, and requirements, including the "Telephone Consumer Protection Act" ("TCPA").
Should there arise any third-party claims concerning the messaging campaigns, Client agrees to indemnify, defend, and hold harmless Carrot Inc against all such claims, including any costs, damages, liabilities, or expenses (inclusive of reasonable attorney fees) that Carrot Inc may incur.
Clients are strictly advised against using Carrot Inc's services for SMS, MMS, or Email marketing messages simultaneously with any similar third-party service. This is due to potential discrepancies in consumer opt-out requests communicated through other service offerings that may not be accurately reflected with Carrot Inc.
In the event the Client opts to record or monitor communications using Carrot Inc's services, such actions should be executed in strict compliance with relevant laws, securing all required consents beforehand. Carrot Inc does not offer any guarantees regarding the recording or monitoring functionalities. Any liabilities or claims arising from the Client's use, or misuse, of these features will be solely borne by the Client, including the responsibility to indemnify Carrot Inc from any resulting implications.
Messaging Functionality:
Message Deliverability:
Deliverability: Carrot Inc seeks to provide reliable messaging services, but it should be noted that the actual delivery of messages, including push notifications, is beyond Carrot Inc's direct control and is influenced by various external factors, such as network conditions, device compatibility, or service providers. Consequently, Carrot Inc cannot guarantee or warrant the successful delivery of every message. The Client acknowledges this limitation and agrees that Carrot Inc shall not be held liable for any non-deliveries or delays in message transmission.
Limited Carrier Data Reporting: Due to constraints in carrier-provided data, Carrot will supply clients with reasonably available information on campaign success. However, the scope and nature of this data are subject to change at any time due to factors beyond Carrot's control. Clients acknowledge that the availability and accuracy of campaign performance data may be impacted by external circumstances, and Carrot cannot guarantee consistent or comprehensive reporting.
By utilizing the messaging features provided by Carrot Inc, the Client agrees to the aforementioned terms and conditions and undertakes to employ the services in a responsible and lawful manner.
Clients who choose to have a website built by Carrot will be subject to the following process and terms:
Plan Options:
Plan 1:
Project Kickoff: Define personality sliders, brand colors, and typeface.
Template Selection: Client chooses a template.
Finalize Copy: Client approves content.
Assets: Client provides brand and photography assets.
Revisions: Two rounds of revisions.
Updates: Two hours of updates per month.
Cost: No additional cost.
Functionality requests beyond the scope of our normal website offerings will be evaluated for viability
Plan 2:
Project Kickoff: Define personality sliders, brand colors, and typeface.
Template Selection: Client chooses a template.
Finalize Content: Client approves content.
Assets: Client provides photography and brand assets.
Revisions: Unlimited revisions.
Updates: Unlimited updates.
Functionality requests beyond the scope of our normal website offerings will be evaluated for viability
Monthly Maintenance Fee.
Included Maintenance:
Training: Carrot will provide training on staging site edits, including image swaps and text editing. Clients should maintain separate copies of text changes.
Access: Permissioned access to Kinsta will be granted, showing clients how to push the staging site live.
Ongoing Edits/Maintenance: Carrot will install an activity log plugin to track responsibility for any issues. In case of client-caused issues, Carrot will roll back to the last working version of the site, potentially resulting in loss of changes.
Administrative Rights:
Hosting: Carrot will host the website on its designated servers or third-party hosting platforms as deemed appropriate by Carrot. This hosting arrangement allows Carrot to maintain control over server configurations, security protocols, and other technical aspects critical to the website's performance and security.
Content Management: During the subscription term, Carrot shall have exclusive administrative access to the content management system (CMS) and backend infrastructure of the website. This access is essential for providing ongoing maintenance, updates, and technical support.
Technical Configurations: Carrot shall have the authority to make necessary technical configurations, adjustments, and updates to ensure the website's optimal functionality, security, and compatibility with evolving web technologies.
Service Requirements Justification:
This arrangement is necessary to meet our service requirements and provide the Client with a seamless and reliable web development and maintenance experience. It enables us to:
Ensure Performance: By maintaining administrative control and hosting, Carrot can proactively monitor and optimize the website's performance, ensuring fast loading times, minimal downtime, and a positive user experience.
Security: Carrot can implement robust security measures, including regular updates and vulnerability assessments, to protect the website from potential threats, breaches, and unauthorized access.
Technical Support: Retaining administrative rights allows Carrot to efficiently provide technical support, resolve issues, and make necessary updates or changes as requested by the Client within the scope of our services.
Software Updates: Carrot can manage software updates, plugins, and integrations to keep the website current and compatible with industry standards.
Customer Responsibilities:
Fees: The Customer is responsible for all fees associated with the website, including but not limited to domain registration, plugins, and any other third-party services or integrations. These fees are separate from Carrot's subscription fees.
Editing Access: During the subscription term, the Client shall have access to the website for content updates and basic content management tasks, subject to the terms and conditions outlined in our service agreement. However, full administrative control and ownership rights shall remain with Carrot to ensure the quality, security, and continuity of the website's performance.
Timely Edits: Carrot commits to addressing all Customer requests for changes in a timely manner. Minor edits will be completed within 24 hours of the request, while the timeframe for major edits will be agreed upon by both parties.
By choosing to have a website developed by Carrot, clients agree to adhere to the outlined process and terms, ensuring a smooth and efficient website development experience.
The Client agrees to cooperate with Carrot's administration and hosting policies to facilitate the provision of our services. The Client also acknowledges that this arrangement is essential for the effective delivery of web development and maintenance services by Carrot during the subscription term.
Integrations: Any outside integrations desired (ie. crm, google analytics) will be the sole responsibility of the Client and will not be set-up or maintained by Carrot.
Management and Ownership During Subscription Term: During the subscription term with Carrot, the Client acknowledges and agrees that Carrot shall retain full administrative rights and ownership of the website developed by Carrot. This includes but is not limited to hosting, content management, and technical configurations necessary for the provision of our services. This arrangement is imperative to ensure the proper functioning and support of the website in accordance with our service requirements.
Website ADA Compliance: Carrot is not responsible for ensuring that a client's website is compliant with the Americans with Disabilities Act (ADA). If a client wishes to make their website ADA compliant, they may purchase a compatible plugin. Upon purchase, Carrot will install and maintain the plugin on the client's behalf, facilitating accessibility according to the provided plugin's capabilities. Clients acknowledge and agree that, regardless of whether they choose to utilize a plugin for ADA compliance, Carrot is not liable for any claims related to ADA compliance, and all responsibility for compliance rests solely with the client. By accepting this section of the Terms of Service, clients understand and accept their responsibility for ADA compliance and agree to hold Carrot harmless from any claims, damages, or liabilities that may arise in connection with ADA compliance for their website.
Fees and Payment Terms. During the term, Client will pay Carrot the fees in the amounts and in the manner set forth on the order form. Payments of all invoices are due within fifteen (15) days following the last day of the month of services rendered (ie. The 15th of October for Sept services). All payments of fees are non-refundable, unless otherwise provided in this Agreement. Invoices not paid when due will be subject to a late fee calculated from the due date at a rate equal to the lower of (i) 1.5% per month or (ii) the highest amount permissible by applicable law. Client will be responsible for any costs incurred by Carrot to collect late payments, including reasonable attorney's fees. Client is responsible for payment of all sales, use, value-added and similar taxes and surcharges lawfully levied against or upon the services, excluding taxes based on Carrot's net income or for which Client has provided a valid exemption certificate. Carrot may modify the fees payable by Client under an order form during any renewal term if Carrot provides notice of such fee increase at least thirty (30) days prior to the expiration of the then-current term of the order form.
ACH Authorization and Payment: At the commencement of a contract, clients are required to complete an ACH authorization form to facilitate automatic payments on due dates. This approach enables Carrot to manage numerous pass-through costs more effectively, ultimately allowing for more competitive pricing. Clients may request to pay in their own fashion by the due dates. If a Client misses a payment, Carrot has the right to require ACH pulls from Carrot to Client for all future invoices. Clients who are under contract without an ACH form, or one with deprecated data and fail to make timely payments must sign an ACH authorization form to continue receiving Carrot services.
Marketing Messaging. To utilize marketing communications, clients must establish an account balance with automatic top-ups enabled for effective campaigns. Payments should be made via credit card using a credit card authorization form. All relevant fees for messaging, carrier charges, surcharges, phone numbers, credit card processing, and applicable taxes will be billed upon campaign initiation. Clients can control the auto-replenishment amount for their account. If a credit card charge fails during campaign submission, the campaign will be paused until a successful account recharge occurs. No refunds will be provided for campaigns. Carrot reserves the right to exercise discretion in campaign execution, with any client-requested changes affecting only future campaigns. As marketing communications involve unregistered traffic, Carrot disclaims responsibility for the success of text campaigns or any alterations in carrier fees or penalties. All expenses will be passed on to the client. While Carrot cannot guarantee successful content delivery, the company will offer optimal recommendations to enhance deliverability. The fee structure for marketing communications is separate from other Carrot contract terms. Prices may be altered at any time in response to the evolving nature of unregistered traffic text messaging. By opting into the Marketing Communications service, clients acknowledge that associated costs are not governed by the standard contract terms and conditions, and that immediate changes in cost may occur.
Utility Subscription Model Terms: If a client opts for our Utility Subscription Model on the Carrot Platform, starting from the fourth month of live operation, a minimum monthly fee of $499 will be applied. The aggregate total of express and delivery orders for the respective month will be deducted from this minimum amount. Should the total of these orders be less than the minimum, the difference will be billed to the client. Messaging and other costs do not contribute to the monthly minimum.
Access. Client shall authorize access to and assign unique passwords and usernames to its authorized users. Client will be responsible for the confidentiality and use of its authorized users' passwords and usernames. Client will also be responsible for all transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Carrot Service or any Third-Party Application ("Electronic Communications"), including those containing business information, account registration, account holder information, financial information, Client Data, and all other data of any kind contained within communications or otherwise entered electronically through the Carrot Service or under Client's account. Carrot will act as though any Electronic Communications it receives under Client's passwords, username, and/or account number will have been sent by Client. Client shall use commercially reasonable efforts to prevent unauthorized access to or use of the Carrot Service and shall promptly notify Carrot of any unauthorized access or use of the Carrot Service and any loss or theft or unauthorized use of any authorized user's password or name and/or Carrot Service account numbers.
Transmission. Client understands that the technical processing and transmission of Client's Electronic Communications is fundamentally necessary to use of the Carrot Service. Client is responsible for securing DSL, cable or another high speed Internet connection and up-to-date "browser" software in order to utilize the Carrot Service. Client expressly consents to Carrot's interception and storage of Electronic Communications and/or Client Data as needed to provide the Carrot Service hereunder, and Client acknowledges and understands that Client's Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Carrot. Client further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Without limiting Carrot's applicable obligations under the Confidentiality Sections of this Agreement, Carrot is not responsible for any Electronic Communications and/or Client Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by Carrot, including, but not limited to, the Internet and Client's local network.
No PHI. Client agrees that: (i) Carrot is not acting on Client's behalf as a Business Associate or subcontractor; (ii) the Carrot Service may not be used to store, maintain, process or transmit protected health information ("PHI") and (iii) the Carrot Service will not be used in any manner that would require Carrot or the Carrot Service to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented ("HIPAA"). In the preceding sentence, the terms "Business Associate," "subcontractor," "protected health information" or "PHI" shall have the meanings described in HIPAA.
Service Use Guidelines. Client will use the Carrot Service solely within the scope of the license granted Client hereunder and will not, and will not cause or permit others to: (i) use the Carrot Service to harass any person, cause damage or injury to any person or property, publish any material that is false, defamatory, harassing or obscene, violate privacy rights, promote bigotry, racism, hatred or harm, send unsolicited bulk e-mail, junk mail, spam or chain letters; infringe property rights; or otherwise violate applicable laws, ordinances or regulations; (ii) perform or disclose any benchmarking, availability or performance testing of the Carrot Service; or (iii) perform or disclose any performance or vulnerability testing of the Carrot Service without Carrot's prior written approval, perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access or penetration testing of the Carrot Service.
Restrictions. Client may not, and may not cause or permit others to: (a) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish, download, or copy any part of the Carrot Service (including data structures or similar materials produced by programs); (b) access or use the Carrot Service to build or support, directly or indirectly, products or services competitive to Carrot; or (c) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Carrot Service to any third party except as permitted by this Agreement or the applicable order form.
ADA Compliance. Carrot expressly disclaims liability for ensuring ADA compliance for the Carrot platform. Clients acknowledge that responsibility for ADA compliance in connection with the use of the Carrot Service, including any Third-Party Applications or System Additions, falls solely on the client. By accepting this section of the Terms of Service, clients understand and agree to assume responsibility for ADA compliance related to their use of the Carrot platform and agree to hold Carrot harmless from any claims, damages, or liabilities that may arise in connection with ADA compliance concerning the Carrot platform or any Third-Party Applications.
Service Commitment: Carrot Inc. commits to making the Carrot Platform available with a Monthly Uptime Percentage (as defined below) of at least 99.0% during any monthly billing cycle (the "Service Commitment"). In the event Carrot Inc. does not meet the Service Commitment, you will be eligible to receive a Service Credit as described below.
Definitions:
"Monthly Uptime Percentage" is calculated by subtracting from 100% the percentage of continuous 5-minute periods during the monthly billing cycle in which Carrot was Unavailable. Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any of Carrot''s Terms and Conditions Exclusions.
"Unavailable" means when the Carrot Platform has no external connectivity, as confirmed by our monitoring tools.
"Service Credits: Service Credits are calculated as a percentage of the total charges due on your bill excluding messaging related costs for the billing cycle in which the Unavailability occurred, applied to the next billing cycle: Monthly Uptime Percentage less than 99.0% will result in a Service Credit of 10%.
Credit Request: To receive a Service Credit, you must submit a request by contacting your Customer Success Manager. To be eligible, the credit request must be received by us within 30 days of the incident and must include:Uptime Credit Request" in the subject line; the dates and times of each Unavailability incident; the account identifier; and any applicable documentation of the Unavailability.
SLA Exclusions: The Service Commitment does not apply to any Unavailability:
that results from a suspension or Remedial Action, as defined in this agreement.
that is caused by factors outside of our reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of Carrot;
that results from any actions or inactions of you or any third party;
that results from the equipment, software, or other technology of you or any third party (other than third party equipment within our direct control);
that arises from our suspension and termination of your right to use Carrot in accordance with the Agreement.
Termination Period; The Client may terminate their agreement with Carrot by providing thirty (30) days of written notice through email to jackie@getcarrot.io and executing a signed Offboarding Agreement, provided that their account is in good standing, as defined by the billing department invoices. If the Client is behind on payments at the time of the notice, Carrot reserves the right to postpone the commencement of the 30-day notice period until all outstanding payments are received.
Termination for Breach. Either Party may terminate this Agreement immediately if the other Party has materially breached any term of this Agreement and fails to cure such breach within thirty (30) days of receipt of written notice from the non-breaching Party specifying the nature of the breach. If Client terminates for Carrot's breach, Carrot will provide a pro-rated refund of any annual license fee (based on the number of full and partial months Client receives the Carrot Service) paid for services not delivered as of the date of termination if applicable.
Suspension and Termination. Carrot may suspend Client's or any of its authorized users' access to, or use of, the Carrot Service if Carrot believes that (i) Client has not paid any invoiced amount when due, (ii) there is a significant threat to the functionality, security, integrity, or availability of the Carrot Service or any content, data, or applications in the Carrot Service; (iii) Client or Users are accessing or using the Carrot Service to commit an illegal act; or (iv) there is a violation of this Agreement. When reasonably practicable and lawfully permitted, Carrot will provide Client with advance notice of any such suspension. Carrot will use reasonable efforts to re-establish the Carrot Service promptly after Carrot determines that the issue causing the suspension has been resolved. During any suspension period, Carrot will make Client Data (as it existed on the suspension date) available to Client. Any suspension under this Section shall not excuse Client from Client's obligation to make payments under this Agreement.
Inability to Perform. If Carrot is unable either to secure or retain the connections or license privileges necessary for the transmission of the Carrot Service, or if Carrot is unable to provide the Carrot Service due to the inability of third parties to provide data, goods or services necessary for the delivery of the Carrot Service, Carrot's obligations hereunder will be suspended, or, at Carrot's option, this Agreement may be terminated by Carrot and Carrot will provide a pro-rated refund of any annual license fee (based on the number of full and partial months Client receives the Carrot Service) paid for services not delivered during the suspended period or as of the date of termination, if applicable.
Buyout Clause: In the event that a Client, who has previously engaged Carrot for the development of a website under the terms outlined in the "Website Development" section of these terms and conditions, desires to acquire full ownership and control of the website upon offboarding from Carrot, the following conditions shall apply:
Purchase Price: The Client may purchase full ownership and control of the website, including all associated files and data, for a buyout fee of $2,000 (USD).
Third-Party Charges: Upon acquiring ownership, the Client shall be responsible for any ongoing charges or fees associated with the website, including but not limited to hosting, domain registration, and paid integrations, that may be incurred after the offboarding process is completed. Carrot shall not be liable for any such charges.
Transfer of Ownership: Upon payment of the buyout fee, Carrot will transfer ownership of the website to the Client, including all necessary login credentials and access rights. Carrot will cooperate in facilitating the transfer, but it is the Client's responsibility to ensure that the transfer process is completed successfully.
No Ongoing Support: After the website is transferred to the Client, Carrot shall have no further responsibility for maintenance, updates, or support related to the website. Any technical support or assistance required by the Client beyond the offboarding process will be subject to separate arrangements and charges, if agreed upon by both parties.
Indemnification: The Client acknowledges that they will be solely responsible for the operation, maintenance, and compliance of the website with all relevant laws and regulations, including but not limited to ADA compliance (if applicable). The Client agrees to indemnify and hold Carrot harmless from any claims, damages, or liabilities that may arise in connection with the website following the transfer of ownership.
Modification Rights: The Client may modify, update, or enhance the website as they see fit after the transfer of ownership. Carrot will have no authority or control over these modifications, and any potential issues or errors arising from such modifications will be the sole responsibility of the Client.
Survival. The "Confidential Information", "Proprietary Rights", "Enforcement", "Disclaimer of Warranties", "Limitation on Liability" and "General" sections of this Agreement will survive any termination or expiration of this Agreement.
Each Party will treat as confidential all Confidential Information received from the other Party, will not use such Confidential Information except as expressly permitted under this Agreement or in connection with providing services under this Agreement, and will not cause or permit its employees, officers and affiliates to reveal, disclose or otherwise make available such Confidential Information to any third party, except as expressly permitted under this Agreement. The receiving Party will use at least the same degree of care which it uses to prevent the disclosure of its own confidential information, but in no event with less than reasonable care, to prevent the disclosure of Confidential Information of the disclosing Party. The receiving Party may disclose Confidential Information to the extent required pursuant to a court order or by operation of law, provided that to the extent legally permissible the receiving Party will promptly notify the disclosing Party in writing prior to making any such disclosure and cooperate with the disclosing Party at disclosing Party's expense in taking such action disclosing Party deems necessary to protect the Confidential Information.
"Confidential Information" means (i) the terms and conditions of this Agreement, (ii) all documentation related to the Carrot Service and all information regarding the performance of the Carrot Service (including availability, uptime, and performance benchmarks), and (iii) any other information disclosed by a Party to the other Party, including customer data, either directly or through a third party, in any form, which is designated as "Confidential," "Proprietary" or some similar designation or which should reasonably be considered to be confidential given the nature of the information or the circumstances of its disclosure. Confidential Information does not, however, include any information which (1) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (2) becomes publicly known and made generally available through no breach of this Agreement; (3) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party; (4) is obtained by the receiving Party from a third party without a breach of such third party's obligations of confidentiality; or (5) is independently developed by the receiving Party without use of or reference to the disclosing Party's Confidential Information.
Carrot Proprietary Rights. As between Carrot and Client, Carrot will own all right, title, and interest in and to the Carrot Service and the hardware and software used to provide the Carrot Service (including, without limitation, any and all Modifications, customizations, adaptations, derivative works, inventions and improvements that may be developed as a result of the Implementation Services and Customization Services), the documentation for the Carrot Service, Carrot's Confidential Information, all data, text, images, sounds, video, and content made available by Carrot through the Carrot Service ("Carrot Content"), and all intellectual property rights related thereto. Except as provided in this Agreement, the rights granted to Client do not convey any rights in the Carrot Service, express or implied, or ownership in the Carrot Service or any intellectual property rights thereto. Client grants Carrot a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Carrot Service (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Client or any Users related to the operation or functionality of the Carrot Service. Any rights in the Carrot Service or Carrot's intellectual property not expressly granted herein by Carrot are reserved by Carrot. Carrot service marks, logos and product and service names are marks of Carrot (the "Carrot Marks"). Client agrees not to display or use the Carrot Marks in any manner without Carrot's express prior written permission. The trademarks, logos and service marks of Third-Party Application providers ("Third-Party Marks") are the property of such third parties. Client is not permitted to use these Third-Party Marks without the prior written consent of such third party which may own the Third-Party Mark.
Enforcement. The Parties acknowledge and agree that each Party would lack an adequate remedy at law and would suffer irreparable injury if Section 4.d, Section 4.e or Section 6 of this Agreement are violated. In the event of any violation or imminent violation of such sections by a Party or any of its employees, contractors or agents, the other Party will be entitled to injunctive relief without having to prove irreparable injury, lack of an adequate remedy at law, posting bond or waiving any other rights or remedies. If Client is shown to have breached Section 4.d, Section 4.e or Section 6 of this Agreement, Client will reimburse Carrot for all expenses (including without limitation attorneys' fees and expenses of investigation) incurred by Carrot in enforcing its rights under this Agreement.
Carrot Indemnification. Carrot shall indemnify, defend, and hold harmless Client from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Client resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Carrot Service, or any use of the Carrot Service in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights, provided that Client promptly notifies Carrot in writing of the claim, cooperates with Carrot, and allows Carrot sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Client agrees to permit Carrot, at Carrot's sole discretion, to (i) modify or replace the Carrot Service, or component or part thereof, to make it non-infringing, or (ii) obtain the right for Client to continue use. If Carrot determines that neither alternative is reasonably available, Carrot may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Client. This Section 9.a will not apply to the extent that the alleged infringement arises from: (1) use of the Carrot Service in combination with data, software, hardware, equipment, or technology not provided by Carrot or authorized by Carrot in writing; (2) modifications to the Carrot Service not made by Carrot; (3) Client Data; or (4) Third-Party Applications. This Section 9.a provides Client's exclusive remedy for any infringement claims or damages.
Client Indemnification. Client shall indemnify, hold harmless, and, at Carrot's option, defend Carrot from and against any Losses resulting from any Third-Party Claim that the Client Data and any of Client's Electronic Communications, or any use of the Client Data or Client's Electronic Communications in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party Claims based on Client's or any of its users' (i) negligence or willful misconduct; (ii) use of the Carrot Service in a manner not authorized by this Agreement; (iii) Client's failure to comply with any applicable law, rule, or regulation, including with respect to any Electronic Communications, (iv) use of the Carrot Service in combination with data, software, hardware, equipment, or technology not provided by Carrot or authorized by Carrot in writing; or (v) modifications to the Carrot Service not made by Carrot, provided that Client may not settle any Third-Party Claim against Carrot unless Carrot consents to such settlement, and further provided that Carrot will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CARROT DISCLAIMS, ON ITS OWN BEHALF AND ON BEHALF OF ITS THIRD PARTY LICENSORS, AND CLIENT WAIVES, ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY, TIMELINESS OF DELIVERY OR SECURITY. ALL PRODUCTS, SERVICES, OR OTHER OFFERINGS PROVIDED OR MADE AVAILABLE BY CARROT, INCLUDING THE CARROT SERVICE AND ALL THIRD-PARTY APPLICATIONS, AND ALL CARROT CONTENT IS PROVIDED BY CARROT ON AN "AS IS" AND "AS AVAILABLE" BASIS. CARROT, ON ITS OWN BEHALF AND ON BEHALF OF THIRD-PARTY LICENSORS, DOES NOT WARRANT THAT THE CARROT SERVICE OR ANY THIRD-PARTY APPLICATION WILL BE UNINTERRUPTED OR ERROR FREE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FROM TIME TO TIME, CARROT MAY PROVIDE CLIENT WITH INSTRUCTIONS ON HOW TO USE THIRD-PARTY APPLICATIONS, INCLUDING ANY MESSAGING FUNCTIONALITY MADE AVAILABLE BY SUCH THIRD-PARTY APPLICATIONS, BUT DOES NOT WARRANT THE USE OF ANY SUCH THIRD-PARTY APPLICATIONS OR THE FUNCTIONALITY, USABILITY, INTEROPERABILITY, OR PERFORMANCE OF SUCH THIRD-PARTY APPLICATIONS, INCLUDING WITH RESPECT OT THE DELIVERABILITY OF ANY ELECTRONIC COMMUNICATIONS.
Limitations on Liability. EXCEPT FOR LIABILITY ARISING OUT OF (A) SECTION 9, AND (B) A BREACH OF SECTIONS 4.D, 4.E, OR 6 OF THIS AGREEMENT, NEITHER PARTY NOR ANY THIRD PARTY LICENSORS, SERVICE PROVIDERS OR SUPPLIERS WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CARROT'S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID TO CARROT BY CLIENT PURSUANT TO THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING SUCH CLAIM.
Authority. Each Party represents and warrants that it has full power and authority to enter into this Agreement and to carry out its obligations hereunder. Each Party represents and warrants that it
Publicity and Marketing. Except as contemplated by this Agreement, neither Party will use the name or logo of the other Party in news releases, advertising or otherwise without the prior approval of such other Party; provided, however, that Carrot may, during the Term, include Client and Client's logo(s) on its customer lists (both online and offline).
Governing Law. This Agreement and the Parties' respective rights and duties will be interpreted and governed in accordance with the laws of the State of Nevada, regardless of its choice of law principles. Any and all claims arising from this Agreement will be brought either in the state or federal courts located in Las Vegas, Nevada, and each Party hereby consents to the jurisdiction of such courts.
Email Marketing and Newsletter. Client agrees to "opt in" to receive email marketing and newsletters from Carrot. Carrot will not provide Client's contact information to any third party for use in marketing third party products and services to Client. Client will have the ability to "opt out" of receiving email marketing and newsletters from Carrot at any time, either through the "unsubscribe link" found in the footer of all emails or by calling the Carrot support department.
Assignment. Client may not assign or otherwise transfer or delegate any of its rights, obligations, or performance under this Agreement without the prior written consent of Carrot. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Client (regardless of whether Client is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Carrot's prior written consent is required. Any attempted assignment or other transfer in violation of this provision will be null and void. All terms and conditions of this Agreement will be binding on and inure to the benefit of the permitted successors and assigns of the Parties.
Entire Agreement. This Agreement constitutes the entire understanding between the Parties regarding the subject matter of this Agreement and supersedes any previous communications, representations or agreements, whether written or oral. No changes or modifications of any of the terms or conditions of this Agreement will be valid or binding on either Party unless in writing and signed by an authorized representative of each Party.
Updates and Changes: The Company reserves the right to modify this section of the Terms and Conditions at any time. Users are encouraged to review this section regularly. Continued use of the Company's services after any such changes shall constitute the user's consent to such changes.
Force Majeure. Carrot will not be liable for any loss, damage or delay resulting from any cause beyond its reasonable control, including, without limitation: fire; flood; action or decree of civil or military authority; pandemic or other public health emergency; insurrection; act of war; threatened or actual terrorism or bioterrorism; or embargo or other trade dispute.
Notices. Notices hereunder must be in writing and given to the other Party by in-hand delivery, by first class mail, postage prepaid, or by air courier to the mailing address set forth above or to such other address as either Party may designate, or by e-mail with receipt confirmed. Notices will be effective when received.
Status of Parties. This Agreement will not be construed as creating a joint venture, partnership, agency or any other similar relationship between Carrot and Client, and neither Party will have any authority to bind or make commitments on behalf of the other.
Government Use. Each of the software components that constitute the Carrot Service is a "commercial item" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Client is an agency of the US Government or any contractor therefor, Client only receives those rights with respect to the Carrot Service as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
Interpretation. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) terms used in the plural include the singular and vice versa; (b) any reference to a "Section" refers to a Section of this Agreement; (c) all references to this Agreement and the words "herein", "hereof", "hereto" and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Section, or other subdivision; (d) all Section headings are for convenience only and shall not affect the interpretation or construction of this Agreement; (e) the words "including," "included" and "includes" mean inclusion without limitation; (f) the word "or" is not exclusive and shall have the meaning commonly ascribed to the term "and/or"; and (g) this Agreement has been jointly negotiated by the Parties hereto and their respective legal counsel, and any legal or equitable principles that might require or permit the construction of this Agreement or any provision hereof against the Party drafting this Agreement shall not apply in any construction or interpretation of this Agreement.
Sole Agreement. The terms of this Agreement (a) constitute the sole and entire agreement of the parties with respect to the subject matter contained herein, (b) supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter, and (c) prevail over any terms or conditions contained in any other documentation related to the subject matter of this Agreement and expressly exclude any of Provider's general terms and conditions contained in any document issued or provided by Provider.