Updated May 22, 2018 with additional provisions related to GDPR. Not sure what GDPR is? Read more about it here: https://www.eugdpr.org/


TERMS OF SERVICE OF THE AMERICOMMERCE ONLINE STORE


This AmeriCommerce Online Store Terms of Service Agreement ("Agreement") is entered into as of the date on which the Customer first uses the AmeriCommerce Online Store Services (as defined below) ("Effective Date") by and between AmeriCommerce ("AmeriCommerce ") and customer ("Customer").

RECITALS

WHEREAS, AmeriCommerce is a service provider that offers access to, and use of, certain applications including its fully integrated set of web-based modules ("AmeriCommerce Online Store Services") and implementation support to initiate such access and use.


WHEREAS, Customer wants to retain AmeriCommerce to allow Customer to access and use the AmeriCommerce Online Store Services under the terms and conditions set forth in this Agreement. NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, Customer and AmeriCommerce agree to the foregoing and as follows:

ARTICLE 1-GENERAL

1.1 Overview of Agreement. This Agreement represents the terms and conditions under which AmeriCommerce shall provide Customer access to and use of the AmeriCommerce Online Store Services package or packages subscribed to ("AmeriCommerce Online Store Services Package"), which may be amended from time to time to reflect additional or amended AmeriCommerce Online Store Services ordered by Customer. AmeriCommerce Online Store Services shall be provided to Customer via the Internet's world wide web. Additional services and/or deliverables may be procured consistent with the terms of this Agreement. Any attempt to alter or amend the terms and conditions contained in this Agreement through conflicting or inconsistent terms in any other document shall be void and of no force and effect.

ARTICLE 2-AmeriCommerce ONLINE STORE SERVICES

2.1 Equipment. Customer will be responsible for procuring, at Customer's sole expense, all equipment or other software ( including licenses necessary to use currently-supported versions thereof) , if any, required to use AmeriCommerce Online Store Services. For such third party hardware or software, Customer shall only receive the manufacturer's warranty, if any, and shall receive no warranties from Licensor for any such third party hardware or software.


2.2 Access Rights. During the term of this Agreement, Customer will have a limited, revocable, non-transferable and non-exclusive license for Customer's employees ("Authorized Users") to use the AmeriCommerce Online Store Services Package and related documentation solely for Customer's business purposes consistent with the terms and conditions of this Agreement. AmeriCommerce will issue to one Authorized User ("AmeriCommerce Administrator") an individual logon identifier and password ("Administrator's Logon") for purposes of administering the AmeriCommerce Online Store Services Package. Customer acknowledges and agrees that only its AmeriCommerce Administrator shall be authorized to bind Customer in connection with any service provided to Customer under this Agreement. Using Administrator's Logon, the AmeriCommerce Administrator shall assign each remaining Authorized User a unique logon identifier and password and assign and manage the business rules that control each such Authorized User's access to the AmeriCommerce Online Store Services Package. Customer shall use its reasonable efforts to see that each Authorized User will: (a) be responsible for the security and/or use of his or her logon identifier; (b) not disclose such logon identifier to any person or entity; (c) not permit any other person or entity to use his or her logon identifier; (d) use the AmeriCommerce Online Store Services Package consistent with the assigned business rules; and (e) use the AmeriCommerce Online Store Services Package in accordance with the terms and conditions of this Agreement. Customer will be responsible for: (f) advising each Authorized User of his or her obligations under this Agreement and of the license restrictions set forth in this Agreement; and (g) any and all costs and expenses incurred through the authorized use of Customer's Logon. AmeriCommerce reserves the right to deny, suspend or revoke access to the AmeriCommerce Online Store Services, in whole or in part, if AmeriCommerce believes Customer and/or its Authorized Users are in breach of this Agreement or are otherwise using or accessing the AmeriCommerce Online Store Services inconsistent with the terms and conditions of this Agreement.


2.3 Restrictions. The customer is expected to be familiar with and to practice good Internet etiquette ("Netiquette"). The customer will comply with the rules appropriate to any network to which AmeriCommerce may provide access. The customer should not post, transmit, or permit Internet access to information the customer desires to keep confidential. The customer is not permitted to post any material that is illegal, libelous, tortuous, indecently depicts children, is of a profane, sexual, pornographic, or obscene nature, or is likely to result in retaliation against AmeriCommerce by offended users, or any material that AmeriCommerce determines in its sole discretion to be inappropriate. This includes advertising services or sites via IRC or USENET in clear violation of the policies of the IRC channel or USENET group.


Customer agrees that Customer and its Authorized Users will not: (a) sell, lease, license or sublicense the AmeriCommerce Online Store Services; (b) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the AmeriCommerce Online Store Services in any way for any reason; (c) provide, disclose, divulge or make available to, or permit use of the AmeriCommerce Online Store Services by, any third party; (d) copy or reproduce all or any part of the AmeriCommerce Online Store Services (except as expressly provided for herein); (e) interfere, or attempt to interfere, with the AmeriCommerce Online Store Services in any way; (f) engage in spamming, mail bombing, spoofing or any other fraudulent, illegal or unauthorized use of the AmeriCommerce Online Store Services; (g) knowingly introduce into or transmit through the AmeriCommerce Online Store Services any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; (h) remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the AmeriCommerce Online Store Services; or (i) engage in or allow any action involving the AmeriCommerce Online Store Services that is inconsistent with the terms and conditions of this Agreement.


2.4 Non-Exclusivity. The parties acknowledge and agree that AmeriCommerce is providing access to and use of the AmeriCommerce Online Store Services to multiple customers and that such services are non-exclusive.


2.5 Availability. AmeriCommerce shall use commercially reasonable efforts to keep the AmeriCommerce Online Store Services Package available on a 24 hour a day, 7 day a week basis, subject to scheduled downtime for maintenance purposes, unscheduled maintenance and systems outages. The parties acknowledge that since the Internet is neither owned nor controlled by any one entity, AmeriCommerce makes no guarantees that any given user will be able to access the AmeriCommerce Online Store Services Package at any given time, and AmeriCommerce shall not be liable to Customer for failure of accessibility to the AmeriCommerce Online Store Services Package.


2.6 Audit Rights. If a customer has purchased the AmeriCommerce Online Store software or has obtained FTP access to the AmeriCommerce software, AmeriCommerce shall have the right, during the term of this Agreement and for a period of six (6) months thereafter, upon reasonable notice and at reasonable times, to access Customer's location and files to inspect Customer's or your agent's use of the AmeriCommerce Online Store systems, as well as computers and equipment used in connection therewith. Customer shall cooperate fully with any such audit or inspection. In the event that any audit shows any misuse, violation or breach of the AmeriCommerce Online Store Services or this Agreement, AmeriCommerce shall be entitled to pursue any remedies available to it under this Agreement or otherwise at law or in equity, and to or suspend, revoke, or terminate AmeriCommerce Online Store Services if you are still a AmeriCommerce Online Store Customer.

ARTICLE 3-FEES; PAYMENT TERMS

3.1 Application and Use Fee. Customer shall pay all amounts due under any invoice to AmeriCommerce within thirty (30) calendar days of due date.


3.2 Late Payments. If Customer fails to pay any fees by the applicable due date, AmeriCommerce will have the right to: (a) assess late charges in an amount equal to the greater of five percent (5%) per month or the maximum allowable under applicable law; and/or (b) suspend access to any or all of the AmeriCommerce Online Store Services and/or performance of the services provided by AmeriCommerce hereunder and/or terminate this Agreement. Any such suspension or termination will not relieve Customer from paying any outstanding fees plus interest and late charges. Customer will be responsible for any costs associated with collecting such fees including, without limitation, legal costs, attorneys' fees, court costs and collection agency fees.


3.3 Taxes. Customer will pay or reimburse AmeriCommerce for all sales, use, transfer, privilege, excise and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by AmeriCommerce under this Agreement, excluding, however, income taxes or gross receipts taxes which may be levied against AmeriCommerce. Such taxes may be reflected on Customer invoices.


3.4 Credit Card Charges Authorized. You hereby authorize the AmeriCommerce to charge Your credit card to pay for the ongoing Subscription Fees to AmeriCommerce at the then current Subscription Rate. You further authorize the Company to charge Your credit card for any and all purchases of products, services available through, at, in or on, or provided by, AmeriCommerce. You agree to be personally liable for all charges incurred by You during or through the use of AmeriCommerce. Your liability for such charges shall continue after termination of Your membership.


3.5 Automatic Credit Card or Debit Card Debit. All charges to Your credit card or debit card for the AmeriCommerce Online Store hosting and licensing services, under the terms and conditions of this Agreement, will be made in advance by automatic credit card or debit card debit and you hereby authorize the Company and its agents to process such transactions on Your behalf.


3.6 Non-Refundable Charges. All charges to your credit card are nonrefundable.

ARTICLE 4-LIMITED WARRANTIES

4.1 Customer Warranty. Customer represents and warrants to AmeriCommerce that: (a) Customer has the authority to enter into this Agreement and perform its obligations under this Agreement; (b) Customer and its Authorized Users will only use the AmeriCommerce Online Store Services for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party; and (c) Customer warrants that it is not located in a country where export or re-export of the contents of information received via the Internet is prohibited. Should Customer receive notice of any claim regarding the AmeriCommerce Online Store Services, Customer shall promptly provide AmeriCommerce with a written notice of such claim.


4.2 AmeriCommerce Warranty. AmeriCommerce warrants that: (a) AmeriCommerce has the authority to enter into this Agreement and perform its obligations under this Agreement; and (b) AmeriCommerce will perform the services required under this Agreement in a professional and workmanlike manner.


4.3 Disclaimer. EXCEPT AS OTHERWISE SET FORTH HEREIN, AmeriCommerce MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY REGARDING OR RELATING TO ANY OF THE SERVICES AND/OR ACCESS TO OR USE OF THE AmeriCommerce SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. AmeriCommerce SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

ARTICLE 5-LIMITATION OF LIABILITY

AmeriCommerce'S LIABILITY UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES OF ANY KIND WILL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT PAID BY CUSTOMER TO AmeriCommerce THROUGH THE DATE AmeriCommerce'S LIABILITY TO CUSTOMER ACCRUES. IN NO EVENT SHALL AmeriCommerce BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS.

ARTICLE 6-INDEMNIFICATION

Customer agrees to indemnify, defend (at AmeriCommerce's sole option and at Customer's sole expense) and hold harmless AmeriCommerce, its managers, directors, officers, employees, independent contractors and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action is based upon a claim arising out of or relating to Customer's use of and/or access to the AmeriCommerce Online Store Services or services provided hereunder, including but not limited to any claims arising out of the sale or offer for sale of any illegal, infringing, counterfeit products or services or any other misuse of the AmeriCommerce Online Store Services by Customer or its customers. Customer specifically acknowledges that AmeriCommerce shall not be liable to Customer for losses, if any, incurred as a result of fraudulent or unauthorized use or misuse of AmeriCommerce Online Store Services.

ARTICLE 7-CONFIDENTIAL INFORMATION

"Confidential Information" will include the terms of this Agreement, any software provided by AmeriCommerce under this Agreement, the logon identifiers and/or passwords provided to Customer and each Authorized User, the prices and fees charged under this Agreement, any other materials marked confidential by Customer or AmeriCommerce and any other information conveyed under this Agreement that is identified in writing as confidential at the time of its conveyance. Each party acknowledges and agrees that: (a) the Confidential Information constitutes valuable trade secrets of the party owning such Confidential Information; (b) it will use Confidential Information solely in accordance with the provisions of this Agreement; and (c) it will not disclose, or permit to be disclosed, the Confidential Information of the other party to any third party without the disclosing party's prior written consent. Each party will take all reasonable precautions necessary to safeguard the confidentiality of the other party's Confidential Information including, at a minimum, those precautions taken by a party to protect its own Confidential Information, which will in no event be less than a reasonable degree of care. Confidential Information will not include information that is: (d) publicly available; (e) already in the other party's possession and not subject to a confidentiality obligation; (f) obtained by the other party from any source without any obligation of confidentiality; (g) independently developed by the other party without reference to the disclosing party's Confidential Information; or (h) required to be disclosed by order of a court or other governmental entity; provided no less than ten (10) days written notice is given to the party owning such Confidential Information so that such party may obtain a protective order or other equitable relief.

ARTICLE 8-PROPRIETARY RIGHTS

No right (except for the license granted in Section 2.2), title or interest of intellectual property or other proprietary rights in and to the AmeriCommerce Online Store Services and/or other products or services made available under this Agreement is transferred to Customer hereunder. AmeriCommerce and its Third-Party Licensors retain all right, title and interests, including, without limitation, all copyright, trade secret, intellectual property and other proprietary rights in and to the AmeriCommerce Online Store Services and/or other products or services provided under this Agreement. Customer will retain all right, title and interest to the documents created by Customer using the AmeriCommerce Online Store Services, subject to any rights of AmeriCommerce in underlying works from which such documents were derived.

ARTICLE 9-DATA PROTECTION

9.1 Scope.
The terms in this section apply to all software and services provided by AmeriCommerce to Customer, including the AmeriCommerce Online Store Services Package and to all data processed therein.

9.2 - Processing of Personal Data; GDPR
Personal Data provided to AmeriCommerce by, or on behalf of, Customer through use of the AmeriCommerce Online Store Services Package is also Customer Data. Pseudonymized identifiers may also be generated through Customer’s use of the AmeriCommerce Online Store Services Package and are also Personal Data. To the extent AmeriCommerce is a processor or subprocessor of Personal Data subject to the GDPR, the GDPR Terms in this section 9.4 govern that processing. For purposes of these GDPR Terms, Customer and AmeriCommerce agree that Customer is the controller of Personal Data and AmeriCommerce is the processor of such data, except when Customer acts as a processor of Personal Data, in which case AmeriCommerce is a subprocessor. These GDPR Terms apply to the processing of Personal Data, within the scope of the GDPR, by AmeriCommerce on behalf of Customer.

9.2.1 - Processor and Controller Roles and Responsibilities
Customer and AmeriCommerce agree that Customer is the controller of Personal Data and AmeriCommerce is the processor of such data, except when (a) Customer acts as a processor of Personal Data, in which case AmeriCommerce is a subprocessor or (b) stated otherwise in this agreement. AmeriCommerce will process Personal Data only on documented instructions from Customer. Customer agrees that this agreement along with Customer’s use and configuration of features in the AmeriCommerce Online Store Services Package are Customer’s complete and final documented instructions to AmeriCommerce for the processing of Personal Data. In any instance where the GDPR applies and Customer is a processor, Customer warrants to AmeriCommerce that Customer’s instructions, including appointment of AmeriCommerce as a processor or subprocessor, have been authorized by the relevant controller. If Customer wishes to change or restrict data processing activities performed by AmeriCommerce on behalf of the Customer in a manner that is not possible due to either a) being in contradiction to this agreement; or b) not within the functionality provided by the AmeriCommerce Online Store Services Package; Customer is entitled to terminate this agreement and cease using the AmeriCommerce Online Store Services Package as described in Article 10.


9.2.2 - Processing Details
The parties acknowledge and agree that:
• The subject-matter of the processing is limited to Personal Data within the scope of the GDPR;
• The duration of the processing shall be for the duration of the Customer’s right to use the AmeriCommerce Online Store Services Package and until all Personal Data is deleted or returned in accordance with Customer instructions or the terms of the this agreement;
• The nature and purpose of the processing shall be to provide the AmeriCommerce Online Store Services Package to the Customer;
• The types of Personal Data processed by the AmeriCommerce Online Store Services Package include those expressly identified in Article 4 of the GDPR; and
• The categories of data subjects are Customer’s representatives and end users, such as employees, contractors, collaborators, and customers.

9.2.3 - Data Subject Rights; Assistance with Requests
AmeriCommerce will make available to Customer in a manner consistent with the functionality of the AmeriCommerce Online Store Services Package and AmeriCommerce’s role as a processor Personal Data of data subjects and the ability to fulfill data subject requests to exercise their rights under the GDPR. AmeriCommerce shall comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request. If AmeriCommerce receives a request from Customer’s data subject to exercise one or more of its rights under the GDPR in connection with the AmeriCommerce Online Store Services Package for which AmeriCommerce is a data processor or subprocessor, AmeriCommerce will redirect the data subject to make its request directly to Customer. Customer will be responsible for responding to any such request including, where necessary, by using the functionality of AmeriCommerce Online Store Services Package.

9.2.4 - Sub-Processors
Customer may at any time request a list of currently employed data sub-processors as defined by GDPR. If Customer objects to the use of any of these sub-processors, Customer is entitled to terminate this agreement and cease using the AmeriCommerce Online Store Services Package as described in Article 10.

9.4.5 – Personal Data Breach

AmeriCommerce shall notify Customer without undue delay after becoming aware of a personal data breach. Such notification will include that information a processor must provide to a controller under Article 33(3) of the GDPR to the extent that such information is reasonably available to AmeriCommerce.

ARTICLE 10-TERM AND TERMINATION

10.1 Cancellation Procedure. Customer is responsible for all AmeriCommerce Online Store Services charges up to and including the day client cancels AmeriCommerce Online Store Services. To cancel the AmeriCommerce Online Store Services the customer must submit a cancellation request from within the AmeriCommerce Online Store Services Package. This verifies the person performing the action has the proper access to do so. A ticket will be automatically created to provide proof of cancellation. The customer is responsible for all outstanding charges up to the time the cancellation number is issued. For security purposes, e-mail notice will be disregarded.


Cancellation of store front software does not release client from any long term contracts that client might have signed with AmeriCommerce. If client has pre-paid for a year of service, cancellation does not result in a refund.


10.2 Term. This Agreement will commence as of the Effective Date and shall continue thereafter on a month to month basis unless terminated pursuant to Section 10.2 or 10.3, OR UPON TELEPHONE NOTICE TO THE AmeriCommerce BILLING DEPARTMENT. ANY EMAIL NOTICE WILL BE DISREGARDED. WRITTEN NOTICE MAY BE MAILED DIRECTLY TO AmeriCommerce AT: 350 Pine Street, Suite 1650, Beaumont, TX 77701


10.3 Termination by AmeriCommerce. AmeriCommerce shall have the right, upon written notice to Customer, to terminate this Agreement if: (a) Customer fails to timely pay AmeriCommerce any amount due to AmeriCommerce under this Agreement; (b) Customer materially breaches any term or condition this Agreement, provided such breach is not cured by Customer within thirty (30) calendar days following AmeriCommerce's notice to Customer of such breach; or (c) Customer (i) terminates or suspends its business activities; (ii) becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.


10.4 Termination by Customer. Customer will have the right, upon written notice to AmeriCommerce, to terminate this Agreement if AmeriCommerce is in material breach of this Agreement and AmeriCommerce fails to remedy such material breach within thirty (30) calendar days of its receipt of such written notice.


10.5 Obligations upon Termination or Expiration and Non-Renewal. Upon the expiration and non-renewal or termination of this Agreement for any reason: (a) Customer's access to, and use of, the AmeriCommerce Online Store Services will terminate; (b) Customer will return to AmeriCommerce any and all AmeriCommerce Online Store Services, equipment, software, documentation or other deliverables provided to Customer by AmeriCommerce including any copies thereof held by Customer; (c) AmeriCommerce will deliver to Customer all Customer documents and other materials stored by Customer on the AmeriCommerce Online Store network; and (d) each party shall return any and all Confidential Information in its possession to the party that disclosed such Confidential Information and provide written verification of same.


10.6 Survival. Any provisions of this Agreement that by their nature should survive termination of this Agreement will survive termination of this Agreement, including but not limited to Articles 6, 7, and 8.

ARTICLE 11-MISCELLANEOUS

11.1 Notices. Any written notice required or permitted to be delivered pursuant to this Agreement will be in writing and will be deemed delivered: (a) upon delivery if delivered in person; (b) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, postage prepaid; (c) upon transmission if sent via telecopier, with a confirmation copy sent via overnight mail; (d) one (1) business day after deposit with a national overnight courier, in each case addressed, in the case of Customer, the address listed in AmeriCommerce's records, or in the case of AmeriCommerce, to 350 Pine Street, Suite 1650, Beaumont, TX 77701 (or to such other address as may be specified upon notice) or (e) notwithstanding anything to the contrary contained anywhere in this Terms of Service Agreement, in the case of any such written notice provided by AmeriCommerce to Customer, including any written notice relating to any updates to this Terms of Service Agreement, on the day of transmission if sent by electronic mail ("e-mail") to the current e-mail address for such Customer, as provided by such Customer to AmeriCommerce.


11.2 Assignment. Customer will not assign or otherwise transfer this Agreement, in whole or in part, nor delegate or subcontract any of its rights or obligations hereunder, without AmeriCommerce's prior written consent, which consent may be withheld, delayed or conditioned in AmeriCommerce's discretion. AmeriCommerce will have the right to assign this Agreement, in whole or in part, to a third party at any time upon written notice to Customer.


11.3 Force Majeure. Neither party shall have any liability to the other or to third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control including, without limitation, acts of God or nature, actions of the government, fires, floods, strikes, civil disturbances or terrorism, or power, communications, satellite or network failures.


11.4 Waiver. Any waiver or modification of this Agreement will not be effective unless executed in writing and signed by an authorized representative of AmeriCommerce and Customer. The parties expressly disclaim the right to claim the enforceability or effectiveness of: (a) any amendments to this Agreement that are not executed by an authorized representative of AmeriCommerce and Customer; (b) any oral modifications to this Agreement; and (c) any other amendments that are based on course of dealing, waiver, reliance, estoppel or similar legal theory. The parties expressly disclaim the right to enforce any rule of law that is contrary to the terms of this Section. The failure of either party to enforce, or the delay by either party in enforcing, any of its rights under this Agreement will not be deemed to be a waiver or modification by such party of any of its rights under this Agreement.


11.5 Severability. If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement, unless AmeriCommerce in good faith deems the unenforceable provision to be essential, in which case AmeriCommerce will have the right to terminate this Agreement in accordance with Section 10.1.


11.6 Public Announcements. Customer grants AmeriCommerce the right to use Customer's name in press releases, product brochures and financial reports indicating that Customer is a customer of AmeriCommerce.


11.7 Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.


11.8 Third Party Beneficiaries. Customer acknowledges that some AmeriCommerce Online Store Services may be provided by Third Party Licensors. Third Party Licensors are third party beneficiaries to this Agreement, and there are no other third party beneficiaries to this Agreement.


11.9 Governing Law; Jurisdiction; Dispute Resolution. This Agreement will be interpreted and construed in accordance with the laws of the State of Texas, without regard to conflict of law principles. All disputes arising out of this Agreement shall be brought only in the district and federal courts located in or for Beaumont, Texas. EACH PARTY CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, LOCATED IN OR FOR Beaumont, Texas. Notwithstanding the foregoing, the parties agree that if any dispute arises between them relating to this Agreement, they will first participate in non-binding mediation prior to the commencement of any litigation or other proceeding. If a party intends to invoke this mediation provision, such party shall notify the other party in writing, by certified and regular mail, of such party's desire to convene mediation. The parties shall then have thirty (30) days in which to appoint a mutually acceptable mediator, and if the parties are unable to agree on a mediator, each party shall select a mediator and the mediators so chosen shall appoint a third mediator who shall preside over the proceeding. The mediation shall be conducted in Beaumont, Texas. The parties shall participate in good faith in any mediation proceeding until the mediator determines that no further progress can be made in resolving the dispute. The parties shall each bear an equal portion of the mediator's fees. Each party may be represented by counsel during the mediation.


11.10 Non-solicitation. Customer agrees that, during the term of the relationship with AmeriCommerce and for a period of two years thereafter, Customer shall not intentionally, and shall not intentionally permit any of the Customer's affiliates to directly or indirectly, personally or through others, encourage, induce, attempt to induce, solicit or attempt to solicit any employee of AmeriCommerce to leave his or her employment with AmeriCommerce.


11.11 System And Network Security. Violations of system or network security are prohibited, and may result in criminal and civil liability. AmeriCommerce may investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:


Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.


Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network.


Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks. Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting.


Violators of the policy are responsible, without limitations, for the cost of labor to clean up and correct any damage done to the operation of the network and business operations supported by the network, and to respond to complaints incurred by AmeriCommerce. Such labor is categorized as emergency security breach recovery and is currently charged at $250 USD per hour required.


AmeriCommerce is concerned with the privacy of online communications and web sites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, AmeriCommerce urges its Customers to assume that all of their online communications are insecure. AmeriCommerce cannot take responsibility for the security of information transmitted over AmeriCommerce's facilities.


11.12 Copyright Infringement - Software Piracy Policy. The AmeriCommerce Online Store Services may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United States or state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or other intellectual property rights.


Making unauthorized copies of software is a violation of the law, no matter how many copies you are making. If you copy, distribute or install the software in ways that the license does not allow, you are violating federal copyright law. If caught with pirated software, you or your company may be liable under both civil and criminal law, and you may be liable for up to $150,000 per infringement.


AmeriCommerce will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.


11.13 Network Responsibility. Customers have a responsibility to use the AmeriCommerce Online Store Services responsibly. This includes respecting the other Customers of the AmeriCommerce Online Store. AmeriCommerce reserves the right to suspend and or cancel service with any Customer who uses the AmeriCommerce Online Store Service in such a way that adversely affects other AmeriCommerce Online Store Customers. This includes but is not limited to:


Attacking or attempting to gain unauthorized access to servers and services that belong to AmeriCommerce or its Customers (i.e. computer hacking), and/or Participating in behavior, which result in reprisals that adversely effect the AmeriCommerce Online Store Services or other Customers' access to the AmeriCommerce Online Store Services. AmeriCommerce will react strongly to any use or attempted use of an Internet account or computer without the owner's authorization. Such attempts include, but are not limited to, "Internet Scanning" (tricking other people into releasing their passwords), password robbery, security hole scanning, port scanning, etc. Any unauthorized use of accounts or computers by a AmeriCommerce Online Store Customer, whether or not the attacked account or computer belongs to AmeriCommerce, will result in severe action taken against the attacker. Possible actions include warnings, account suspension or cancellation, and civil or criminal legal action, depending on the seriousness of the attack. Any attempt to undermine or cause harm to a server, or Customer, of AmeriCommerce is strictly prohibited.


Violations of this policy may be reported directly to the FBI's Infrastructure Protection & Computer Intrusion Squad at http://www.fbi.gov/hq.htm . AmeriCommerce will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.


11.14 Lawful Purpose. All services may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any applicable law, regulation, or AUP is prohibited. This includes, but is not limited to: copyrighted material or material protected by trade secret and other statute or dissemination of harmful or fraudulent content.


Using any of the AmeriCommerce Online Store Services or products for the purpose of participating in any activity dealing with subject matters that are prohibited under applicable law is prohibited.


Any conduct that constitutes harassment, fraud, stalking, abuse, or a violation of federal export restriction in connection with use of AmeriCommerce Online Store Services or products is prohibited. Using the AmeriCommerce network to solicit the performance of any illegal activity is also prohibited, even if the activity itself is not performed. In addition, knowingly receiving or downloading a file that cannot be legally distributed, even without the act of distribution, is prohibited.


Servers hosted within the AmeriCommerce network are open to the public. You are solely responsible for your usage of the AmeriCommerce network and servers and any statement you make on servers hosted within the AmeriCommerce network may be deemed "publication" of the information entered. Acknowledging the foregoing, you specifically agree not to use our service in any manner that is illegal or libelous.


11.15 Child Pornography on the Internet. AmeriCommerce will cooperate fully with any criminal investigation into a Customer's violation of the Child Protection Act of 1984 concerning child pornography. Customers are ultimately responsible for the actions of their clients over the AmeriCommerce network, and will be liable for illegal material posted by their clients.


According to the Child Protection Act, child pornography includes photographs, films, video or any other type of visual presentation that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years or any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years.


Violations of the Child Protection Act may be reported to the U.S. Customs Agency at 1-800-BEALERT


11.16 Unsolicited Commercial Email/Unsolicited Bulk Email (UCE/UBE). Unsolicited commercial email (UCE) is defined by AmeriCommerce as any electronic communication (e-mail, ICQ, IRC, Instant Messenger, etc.) sent for purposes of distributing commercial information of any kind, soliciting the purchase or sale of products or services or soliciting any transfer of funds to a recipient who has not agreed to receive such communication.


Unsolicited bulk e-mail (UBE) is defined by AmeriCommerce as any electronic communication (e-mail, ICQ, IRC, Instant Messenger, etc.) to multiple recipients who have not agreed to receive such communication.


Use of the AmeriCommerce network, servers or services to transmit any unsolicited commercial or unsolicited bulk-e-mail is expressly prohibited, as is hosting web sites or services on a server, which are advertised in any UCE/UBE. AmeriCommerce also prohibits the sending of any fraudulent, malicious, harassing, false or misleading electronic communications, including, without limitation, chain letters, pyramid schemes, or e-mails with forged headers. Posting off-topic advertisements to Usenet discussion groups, ICQ, Instant Messenger, etc., is also expressly prohibited.


Additionally, AmeriCommerce Online Store Customers are expressly prohibited from sending any UCE/UBE from our network or any email from another network that in any way references a document, image, or Web site that resides on the AmeriCommerce network or in one of our data centers. Violations of this type may result in the termination of the offending AmeriCommerce Online Store account. AmeriCommerce Online Store Customers are ultimately responsible for any violations of the AUP by their clients, and any violation of the AUP by a client of a AmeriCommerce Online Store Customer shall be deemed a violation of the AUP by such AmeriCommerce Online Store Customer.


Customers whose actions directly or indirectly result in AmeriCommerce IP space being listed in any of the various abuse databases may be subject to having the offending domain(s), server(s), or user(s) immediately removed from our service. In addition, if AmeriCommerce in its sole discretion determines that a customer is in violation of our AUP, AmeriCommerce may, at its sole discretion, restrict, suspend or terminate a customer's account. AmeriCommerce will, in most cases, attempt to contact a customer prior to suspension or termination of a server(s), but can not guarantee prior notification.


Any server suspended or terminated for AUP violations will be reconnected only after the customer agrees to cease all activities that violate the AmeriCommerce AUP and pays all applicable reconnect fees and related charges. Any server suspended a second time for AUP violations WILL be immediately and permanently removed from our network. Customers that AmeriCommerce determines in its sole discretion to be in violation of the AmeriCommerce AUP may be subject to additional fees or fines including, without limitation, any applicable reconnect fees.


11.17 Guidelines for Permission-Based Email. While AmeriCommerce prohibits the use of its systems or network to send unsolicited email (UCE/UBE) as described above, customers may send permission-based email marketing, subject to the guidelines provided herein. Permission-based marketing is defined as electronic marketing that an end-user agrees to receive. This is often referred to as 'opt-in' electronic marketing. All recipient information for such marketing conducted by AmeriCommerce Online Store Customers must be documented and cataloged by the Customer. This information is to include date, time, originating IP and the location from which the email address or other recipient information was obtained. Additionally, a customer must at a minimum comply with the following guidelines, and any additional guidelines established by AmeriCommerce from time to time in its sole discretion, to engage in permission-based email marketing without violating the AUP:


1. All commercial or bulk email originating from a AmeriCommerce Online Store Customer on the AmeriCommerce network must have a working unsubscribe link. The customer must honor all requests to unsubscribe within 72 hours. Additionally, there must be text in the email stating that while all requests to unsubscribe are honored, it may take up to 72 hours to process.


2. All commercial or bulk email originating from a AmeriCommerce Online Store Customer on the AmeriCommerce network must clearly list the email address to which the email was originally sent (the intended recipient's email address) in the body of the message OR in the 'TO:' line of the email.


3. All AmeriCommerce Online Store Customers sending commercial or bulk email must have a working abuse@domain.com address from EVERY domain associated with the email campaign. Additionally, the abuse@ address must be prominently posted on the front page of the associated web site. Customers must regularly answer any messages sent to the abuse@ address.


4. All AmeriCommerce Online Store Customers sending commercial or bulk email must register the abuse@ address for every domain associated with commercial email they send at abuse.net.


5. All AmeriCommerce Online Store Customers sending commercial or bulk email must have a Privacy Policy/AUP posted for each domain associated with the email campaign.


6. All commercial or bulk email sent must include information about where the email address was obtained in the body of the email. For example:


"You opted-in to receive this email promotion from our web site or from one of our partner sites."


7. All AmeriCommerce Online Store customers sending commercial or bulk email must answer all complainants' requests for details regarding where the complainant "opted-in" to receive electronic marketing within 72 hours. This information must include the date, time, originating IP and the location from which the email address or other recipient information was obtained. Instructions on how to get this information must be stated clearly in the body of the email. For example, a statement similar to the following must be present in the body of the email: "If you would like to learn more about how we received your email address, please contact us at abuse@domain.com."


Requests for "opt-in" information must be responded to within 72 hours.


8. All AmeriCommerce Online Store Customers sending commercial or bulk email must be able to track and identify anonymous complainants. There are several software packages (such as RoboMail) that can help accomplish this.


9. If a AmeriCommerce Online Store Customer is using an affiliate program to send commercial or bulk email through the AmeriCommerce network and the affiliate program becomes subject to repeated abuse by users, the customer must discontinue use of the affiliate program or be subject to immediate suspension or cancellation.


10. All Customers of the AmeriCommerce Online Store are required to have up-to-date and valid contact information on file with their registrar for any domain hosted on the AmeriCommerce network.

Disclaimer

AmeriCommerce reserves the right to test portions of any customer's email list in response to complaints and request opt-in information from a random sample of that list at any time.


AmeriCommerce reserves the right to determine in its sole discretion the validity of any customer's email list. Any list AmeriCommerce determines in its sole discretion to be in violation of this AUP must be removed immediately or the customer will be subject to immediate suspension or termination. Repeated violations will result in permanent suspension.


AmeriCommerce reserves the right to test and otherwise monitor customer's compliance with the above guidelines and requirements at any time during the customer's term of service at AmeriCommerce.


If AmeriCommerce determines in its sole discretion that the customer is not in strict compliance with the guidelines for permission-based e-mail marketing, then AmeriCommerce may immediately suspend or terminate the customer's service.


11.18 Suspension. If AmeriCommerce in its sole discretion determines that a Customer's server has become the source or target of any violation concerning the AmeriCommerce Acceptable Use Policy (AUP), AmeriCommerce reserves the right to suspend network access to that server. AmeriCommerce does not guarantee that Customer will be contacted before suspending network access in accordance with this section. In certain cases, AmeriCommerce will contact law enforcement and other agencies regarding these activities. Customers are responsible for all charges, as well as any fees relating to the investigation, suspension, administration and handling of their servers before, during and after the suspension period.


11.19 Headings. The headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.


11.20 Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.


Trademark and Copyright Legal Notices: AmeriCommerce, the AmeriCommerce logo are registered trademarks and/or registered service marks of AmeriCommerce, or one of its subsidiaries, in the United States and other countries.


Other brands or product names are trademarks or service marks of their respective owners, should be treated as such, and may be registered in various jurisdictions.