1. Introduction

Please read this entire document carefully! It is an important part of the contractual agreement between the Subscriber ("you" or "your") and Amaranth Networks, Inc., ("Amaranth"). It sets forth the rights and responsibilities of each of the parties with respect to each other. This document can and does change from time to time, and may change without prior notice, so it is important that you review this document periodically in order to assure your continued compliance with the terms upon which your use of Amaranth's services are conditioned. By continuing to use Amaranth's services, you will be deemed to have agreed to these Terms and Conditions of Use. If at any time you have any questions or doubts as to whether your intended use of Amaranth's services may run afoul of these Terms and Conditions, please speak with the staff of Amaranth Networks, Inc., before engaging in such activities.

2. Services

All of Amaranth's Email and Web Services are provided according to a schedule of fees for each type of service. You agree to use such services in accordance with the terms set forth below.

• 2.1 Email Services
  • 2.1.1 Unsolicited Email Prohibited - You may not use Amaranth-hosted email addresses for purposes of sending unsolicited email. You may not use or cause to be used Amaranth's equipment, network connectivity, or other resources to originate, deliver, relay, or otherwise transmit unsolicited email messages. You may not engage in any of the foregoing prohibited activities by using the service of any other provider, third-party agent, remailing service, or address forwarding service, in such a way that Amaranth's network addresses or Amaranth-hosted web or email services are in any way identified as being associated with the sending of unsolicited email. This prohibition includes, but is not limited to, the posting of off-topic or widely-crossposted messages to Usenet newsgroups. For purposes of this Agreement, violations of the terms of this paragraph shall be considered Internet Abuse.
  • 2.1.2 Excessive Email Traffic May Be Limited - Amaranth reserves the right to suspend or delay delivery of email to customers utilizing the Email Services and/or the Virtual Domain Email if the volume of email being redirected, stored, or delivered on the customer's behalf is deemed excessive. Excessive traffic is defined as any amount of email that consumes more than 10 MB of disk storage space per individual mailbox, or 50 MB of disk storage space per virtual domain, or any volume of email traffic that noticeably degrades performance on the server in question, in the sole discretion of Amaranth. Stored email exceeding these limits may be transferred to a compressed file at Amaranth's discretion. Amaranth will attempt to notify the account holder via the account contact information on record, however Amaranth reserves the right to delete the contents of such e-mail box upon thirty (30) days after attempted notification.
  • 2.1.3 No Resale - You may not resell Amaranth email services without the express written consent of Amaranth.
• 2.2 Web Hosting Services
  • 2.2.1 Unsolicited Email Prohibited - You may not use any Amaranth services to engage in or promote the sending of unsolicited email. You may not send unsolicited email from other services advertising Amaranth-hosted web. For purposes of this Agreement, violations of the terms of this paragraph shall be considered Internet Abuse.
  • 2.2.2 Limits on Use of System Resources - Accounts that have purchased CGI scripting may not use more that 1% of the system's resources for 10 seconds or longer or use a consistent 0.05% or more of the systems resources on any Amaranth server. Any CGI exceeding 10% CPU utilization will be disabled immediately, and the customer will be notified via email when such actions are taken. All CGI scripts are subject to review by Amaranth prior to use and once approved, CGI scripts may not be altered without prior review and approval of the altered script. Users maintaining a web site will be subject to additional charges if their site is receiving excessive use according to Amaranth’s rates for such services as documented in the agreement between Amaranth and the client, which may change from time to time and are hereby incorporated by reference into this agreement. Amaranth reserves the right to revise the limits and rates charged for web site traffic without prior notice and also reserves the right to disable all or part of web sites generating traffic in excess of the stated limits for the relevant account type.
  • 2.2.3 No Resale - You may not resell Amaranth web services without the express written consent of Amaranth.
• 2.3 Other Services
  • 2.3.1 Mailing List Services - The terms and conditions relating to Email Services and Web Hosting Services also apply to any mailing lists hosted on Amaranth, including and especially the prohibition on any and all activities related to unsolicited email. Mailing list operations must also be in accordance with the limits on volume as contained in the Mailing List Policy document, published at (URL) which is subject to change without notice and is incorporated herein by this reference. Amaranth reserves the right to immediately, and without notice, suspend, delay, or terminate mailing lists being operated in violation of Amaranth’s traffic volume limits or in violation of the Mailing List Policy, or of any other provision of this agreement.
  • 2.3.2 Domain Name Services - The terms and conditions relating to Email Services and Web Hosting Services also apply to any sites for which any Domain Name-related services are provided by Amaranth, including and especially the prohibition on any and all activities related to unsolicited email. Amaranth reserves the right to immediately, and without notice, terminate the provision of any Domain Name Services for any sites being operated in violation of any provision of this agreement.

3. Illegal or Malicious Conduct Prohibited

• 3.1 Amaranth strictly prohibits the use of its equipment, services, or other resources, to intentionally damage any individual or entity in any way. Willfully malicious conduct in violation of law, statute, or generally accepted ethical or technical standards is prohibited. You understand that Amaranth will cooperate with legal authorities and/or injured parties in the investigation of any civil or criminal action. For purposes of this Agreement, violations of the terms of this section shall be considered Internet Abuse. Prohibited activities include, but are not limited to:
  • 3.1.1 Conducting or otherwise promoting “make-money-fast” schemes, ”pyramid”-type marketing schemes, “chain” letters, or bogus charity fundraising scams;
  • 3.1.2 Harassing or threatening to do harm to persons or property;
  • 3.1.3 Making fraudulent representations regarding products or services via your account;
  • 3.1.4 Violating U.S. export control laws for software or technical information;
  • 3.1.5 Exceeding or attempting to exceed your authorized access to Amaranth networks or any other network, including but not limited to probing, breaching, or attempting to breach the security of any network, whether or not such attempts result in actual harm to the network in question;
  • 3.1.6 Using a person’s name or likeness without authorization;
  • 3.1.7 Violating the published policies or charters of mailing lists or newsgroups;
  • 3.1.8 Making unauthorized copies of copyrighted material including, but not limited to, digitization and distribution of photographs from magazines, books, or other copyrighted sources, sound and video recordings, and copyrighted software. Amaranth does not actively monitor content for copyright violations, however Amaranth reserves the right to remove or disable content which has been properly identified as potentially infringing by aggrieved copyright holders whose complaints have been made pursuant to applicable federal copyright laws. Repeated violations of this provision will be grounds for termination of service.
  • 3.1.9 Facilitating, promoting, aiding, or encouraging any of the above listed activities.
• 3.2 Illegal Content on Web Pages - While Amaranth does not actively monitor or review the content provided by its customers, Amaranth expressly reserves the right to respond to complaints from third parties by removing or restricting access to materials that have been deemed, in Amaranth’s sole discretion, tortious or potentially violative of any federal or state statute.

4. Violations - Any violations of these Terms and Conditions may result in immediate termination of service, forfeiture of any startup fees, and application of all remaining fee balances towards equipment or administrative costs or any other damages associated with the violations. Any fees forfeited or applied towards damages will not limit or be in lieu of any other legal remedies against you, including injunctions or the recovery of other costs or damages to which Amaranth may be entitled.

• 4.1 Damage Caused By Unsolicited Email Is Acknowledged - By agreeing to these Terms and Conditions, you acknowledge that irreparable harm is done to Amaranth's quality of service, trademarks, business goodwill, and corporate reputation, if Amaranth is caused to be associated with the practice of sending unsolicited email due to your actions, or the actions of your agent, in violation of these policies.

5. Keeping Your Account Current - You agree to pay all fees and other charges incurred on your account, including charges for any purchases made through Amaranth’s services or resources. You agree to pay all applicable taxes and any access charges relating to the use of the Service through your account, whether imposed upon Amaranth or directly on you. Amaranth shall have the right to terminate or suspend your account for failure to pay your bill in a timely manner.

6. Amaranth Assumes No Liability - Amaranth has no practical ability to restrict all conduct, communications or content which might violate these Terms and Conditions prior to its transmission, nor can Amaranth ensure prompt removal of any such communications or content after transmission or posting. Accordingly, Amaranth does not assume liability to you or to others for any failure to enforce, or delay in enforcing, the terms and conditions set forth herein. Furthermore, you agree to indemnify, protect, and hold harmless, Amaranth from any liability incurred by you through any activities engaged in via Amaranth’s services or resources.

• 6.1 You Have Assumed The Risk Of Using This Service - YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SERVICE. AMARANTH, ITS CLIENTS, PROVIDERS, RESELLERS, AND AUTHORIZED AGENTS ARE NOT RESPONSIBLE FOR ANY LOSS, DAMAGE OR COST (INCLUDING CONSEQUENTIAL DAMAGES) WHICH YOU OR ANYONE ELSE USING YOUR ACCOUNT MIGHT INCUR DUE TO YOUR USE, OR INABILITY TO USE, THE SERVICE. IF YOU LIVE IN A STATE WHOSE LAWS PREVENT YOU FROM TAKING FULL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICE, AMARANTH’S LIABILITY IS LIMITED TO THE GREATEST EXTENT ALLOWED BY LAW. IN NO EVENT SHALL AMARANTH'S LIABILITY OR THE LIABILITY OF ITS CLIENTS, PROVIDERS, RESELLERS, OR AUTHORIZED AGENTS EXCEED (1) FOR INJURY TO PROPERTY OR PERSON CAUSED BY OUR NEGLIGENCE, THE AMOUNT OF DIRECT DAMAGES TO THE PROPERTY OR PERSON, OR (2) FOR ALL OTHER CLAIMS, ACTIONS OR DAMAGES PERMITTED UNDER THIS AGREEMENT, OUR SERVICE CHARGES DURING THE AFFECTED PERIOD.
• 6.2 NO WARRANTY - AMARANTH MAKES NO EXPRESS OR IMPLIED WARRANTIES (INCLUDING WARRANTIES OF TITLE, NONINFRINGEMENT, AND IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), REPRESENTATIONS, OR ENDORSEMENTS REGARDING THE SERVICE OR ANY THIRD PARTY MATERIAL AVAILABLE THROUGH THE SERVICE. FURTHERMORE, THE SERVICE IS PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS -- WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. FINALLY, YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS AMARANTH, ITS CLIENTS, CLIENTS, PROVIDERS, RESELLERS, AND AUTHORIZED AGENTS FROM ANY LOSS, DAMAGE, OR COST (INCLUDING ATTORNEYS' FEES) RESULTING FROM YOUR VIOLATION OF THIS AGREEMENT OR FROM ANY ACTIVITY RELATED TO YOUR ACCOUNT.

7. Disputes. If a legal dispute arises concerning this agreement, the following rules shall apply:

• 7.1 Arbitration. Any controversy or claim arising out of or relating to this contract, or the breach thereof – EXCEPT DISPUTES RELATING TO ANY FAILURE TO PAY BILLED CHARGES – shall be settled by arbitration conducted in the Commonwealth of Massachusetts by a neutral arbitrator and administered in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Any judgment on the award rendered by the arbitrator(s) shall be in writing, shall state reasons for the award, and may be entered in any court having competent jurisdiction over the parties. Each party shall bear their own expenses, except that the prevailing party may recover the filing costs and expenses of the arbitrator from the other party. Interpretation and enforcement of this paragraph shall be according to the Federal Arbitration Act, 9 U.S.C. Sections 1 through 14, and any applicable state statutes. Notwithstanding this paragraph, this agreement shall not limit either party from seeking and obtaining temporary equitable remedies, including temporary restraining orders, from any court with jurisdiction over the subject matter and the parties. However, any request to a court for interim equitable relief shall not be considered a waiver of the duty to arbitrate under this paragraph.
• 7.2 Costs and Attorney’s Fees. If an action is brought to enforce any provision or to declare a breach of this Agreement, each party shall be responsible for its own costs and attorney’s fees, including expert witness fees, travel, costs of appeal, and all other related expenses.
• 7.3 Choice of Law. This agreement shall be construed, interpreted, and enforced according to the laws of the Commonwealth of Massachusetts.
• 7.4 Complete Integration. This document, including the documents referenced by and incorporated into this document, form the complete agreement between you and Amaranth. Any other statements, trade practices, or conduct engaged in by either party shall not alter or modify this agreement; the words contained in this document control the entire meaning of this agreement. Any decision not to enforce a particular provision of this agreement does not waive the right to enforce it at any other time and Amaranth will not waive the right to enforce any provision of this agreement except in writing.
• 7.5 Force Majeure. Government regulations, strikes, lockouts, acts of God, actions of the elements, war, labor shortages, failures by third parties including but not limited to telecommunications network outages, or any other contingency beyond the reasonable control of the parties shall be sufficient excuse for any failure or delay in providing the data or services described in this agreement.

8. Cancellation. Unless otherwise agreed to in writing, Amaranth reserves the right to cancel this agreement at any time, for any reason, without notice. Unless otherwise agreed to in writing, you may cancel this agreement if you notify us in writing beforehand. However, the provisions of this agreement that govern any legal conditions, payments owed, and the rights of the parties, shall survive termination of this agreement.