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Americart LLC Merchant Service Agreement

Americart LLC ("Americart") is a provider of shopping cart functionality for websites engaging in e-commerce. Please read this Merchant Service Agreement (this "Agreement") carefully before you subscribe to Americart's shopping cart service (the "Service"). BY SUBSCRIBING TO, OR USING, THE SERVICE, YOU ("USER") AGREE TO COMPLY WITH AND BE SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. If User does not agree to be bound by this Agreement, do not proceed with registration. If User does not agree to be bound by this Agreement, User may not access or use the Service.

 

1. Service.

1.1 Service. The Service includes an Internet shopping cart and ordering capabilities whereby Americart will track User's desired purchases, calculate charges, confirm the order and deliver all orders to User. AMERICART MAKES NO GUARANTEE AS TO THE CONTINUOUS AVAILABILITY OF THE SERVICE OR ANY SPECIFIC FEATURE OF THE SERVICE.

 

2. User Obligations.

2.1 Accurate User Information. By accepting the terms and conditions of this Agreement, User (a) represents and warrants that he or she is 18 years old or older, (b) agrees to provide true, accurate, current and complete information about User, including, but not limited to, User's name, company name, billing address, web site address, e-mail address and telephone number, as prompted during the Service sign-up process, and (c) agrees to maintain and update this information to keep it true, accurate, current and complete. Americart reserves the right to discontinue the Service in the event any information provided by User or change thereto is deemed by Americart, in its sole discretion, to be in violation of this Agreement.

2.2 Compliance with Americart Policies. User agrees to adhere to Americart's policies, which are published online by Americart, including, without limitation, restrictions on account usage, services available under the account created for User by Americart ("User's Account"), any rules governing the utilization and management of the Service and all other current and future policies of Americart designed to protect and enhance the quality and reliability of Americart services and published online by Americart from time to time (collectively, "Americart's Policies"). User agrees and acknowledges that all of Americart's Policies shall be deemed incorporated herein, and made a part of this Agreement.

2.3 User's Web Site. User represents and warrants that it has full power and authority under all relevant laws and regulations (a) to offer and sell the goods and/or services offered at User's web site, including, but not limited to, holding all necessary licenses from all necessary jurisdictions to engage in the advertising and sale of the goods and/or services, (b) to copy and display the materials used or displayed at User's web site, and (c) to provide for payment and delivery of goods and/or services as specified at User's web site. User acknowledges that Americart may investigate any fraudulent payment acts hereunder. User further acknowledges and agrees that it shall be responsible for all materials, goods and/or services offered at User's web site, and all acts or omissions that occur at User's web site, including any sales or other taxes due to any jurisdiction in respect of any sale of goods or services effected, in whole or in part, through User's website or online. User shall also be responsible for compliance with any and all privacy rules or regulations and/or data collection laws or regulations applicable to its website.

2.4 Prohibited Activities. User represents and warrants that it will not engage in any activities that (a) constitute or encourage a violation of any applicable federal, state or local law or regulation, including, but not limited to, the sale of illegal goods or services, or the violation of export control or obscenity laws, (b) indecently depict children, are likely to result in retaliation against Americart by offended users or that are libelous or tortuous, (c) defame, impersonate or invade the privacy of any third party or entity, (d) infringe upon the rights of any third party, including, but not limited to, the intellectual property, business, contractual, or fiduciary rights of others, (e) may harm the operations or reputation of Americart, (f) modify, change, alter, translate or create derivative works from reverse engineering, disassembling or decompiling the Service and/or Network in any way or permit any other person to do same, (g) provide, disclose, divulge or make available to, or permit use of the Service by, any third party, (h) use the Service in a way that is contrary to Americart's Policies, (i) involve the sending of unsolicited e-mails and/or commercial messages over the Internet ("Spam"), including, but not limited to, sending e-mail messages to a recipient that has indicated that he/she does not wish to receive them, maintaining an open Simple Mail Transfer Protocol policy, selling or distributing software that facilitates Spam, and sending e-mail or posting messages in newsgroups with forged packet header information, (j) violate Section 7 hereof; and (k) involve the dissemination, transfer and sale of any personally-identifiable information of a person or entity collected online or through User's website without the express consent of such person or entity. In addition to the foregoing prohibited activities, User shall not sell, license or sublicense the Service to any third party, including without limitation, any affiliate of User. Americart reserves the right to report such activities to any and all regulatory, administrative and/or governmental authorities for appropriate prosecution and to cooperate with law enforcement authorities in prosecuting any User who is involved in such violations.

2.5 Password Security. User shall receive a password ("User's Password") from Americart to provide access to User's Account. User understands that it may change User's Password at any time and create alternate passwords ("Alternate Passwords"), which may also be used to access User's Account. User agrees to maintain the security of User's Password and all Alternate Passwords, as required to ensure secure access to User's Account. User is solely responsible, and Americart is in no way responsible, for ensuring the confidentiality and secrecy of User's Password and all Alternate Passwords. If User forgets or loses User's Password or requires a new password, User must notify Americart pursuant to Section 15.8. User understands that in the event any security violations are believed to have occurred in connection with User's Account, Americart may (a) suspend access to User's Account pending an investigation and resolution of such violation, and (b) cooperate in any regulatory, administrative and/or governmental investigation relating to the Service and/or User's Account.

2.6 User Authentication. User agrees to comply with all security measures and procedures Americart may implement in an effort to verify the identity of User, including User's provision to Americart of valid identification, credit card number, or notarized affidavit. User understands and agrees that if User does not comply with or does not satisfy, in Americart's sole discretion, Americart's security and identification verification procedures, Americart reserves the right to refuse any or all of User's inquiries, requests, and notices as they relate to the Service, User's Account or this Agreement.

2.7 Service Connectivity Limitations. User is strictly prohibited from sending e-mail messages or posting newsgroup messages that allow recipients or readers of such messages to directly access the Service.

2.8 Backups. For server restoration purposes only, Americart and/or it vendors generally backs up data. However, Americart makes no guarantees of any kind, either expressed or implied, as to the integrity of these backups. User agrees to be responsible for maintaining backup copies of User's Account Data (as defined herein). Americart will not be held liable for maintaining backups of User's Account Data (including any order or sale data of any type). User further agrees to retrieve via Secure Sockets Layer encryption the final portion of order credit card numbers promptly following User's receipt of e-mailed notification of orders, and to conduct daily checks of the Network (as defined herein) for retrieving User Account Data. User acknowledges and agrees that Americart may, at its sole discretion, purge any order and/or sales data of User stored on the Network at any time and without prior notice to User. For purposes of this Agreement, (i) "User's Account Data" shall mean all data, files, text, software, music, sound, graphics, or video stored and/or transmitted through the Network as a result of User subscribing to or using the Service, including, but not limited to, User's contact and billing information, User's Account settings, and all data related to User's orders and customers, and (ii) "Network" shall mean the computer equipment used by Americart to provide the Service.

2.9 User Customers. User agrees to (i) provide its customers reasonable access to contact information of User to enable customer to contact User directly and to User's terms and conditions affecting use of its website, including its privacy policy, data collection practices and opt-out rights and procedures, which shall be conspicuously posted online and (ii) resolve customer complaints against User in a reasonable and timely manner.

3. Trial Period. User shall be permitted to access and use the Service on a free trial basis for a period of fourteen days from the first access of the Service (the "Trial Period").

 

4. Payment.

4.1 Subscription Fee. All rates and prices quoted herein are in U.S. Dollars. User will be charged by Americart the applicable subscription fee depending upon the subscription period chosen by User. The subscription fee will appear on an invoice e-mailed to User in advance of the selected subscription period, except that if User elects to use the Service on a Trial Period and then continues use thereof, the fee will be billed to User following the Trial Period. Subscription fees are accounted on a month to month basis and service may be cancelled at any time. By request, fees can be refunded for any future month that service is not provided. A month where service is or has been provided is non-refundable. A Twenty-Five Dollar ($25.00) service charge will be assessed on all returned checks, regardless of the reason the check was returned. A Fifteen Dollar ($15.00) fee will be assessed if User's credit card company denies payment because of an invalid credit card number, the account has insufficient funds, or User's account is canceled. User shall pay applicable sales and use taxes, duties or levies which are required by law. Americart reserves the right to increase or decrease the subscription fees, provided that Americart notifies User at least thirty (30) days in advance of the fee change taking effect.

4.2 Invoices. User understands and acknowledges that Americart will send invoices via e-mail only. Accordingly, User shall be solely responsible for maintaining a working e-mail address and notifying Americart in the event there is any change of User's e-mail address. User's inability to receive e-mails will not relieve User's responsibility to pay Americart the applicable fees when due.

4.3 Late Payments. If User fails to pay any fees by the due date set forth on the applicable invoice, Americart will have the right to: (a) assess interest charges thereon in an amount equal to the lower of one and a half percent (1.5%) per month or the maximum amount allowable under applicable law; and/or (b) suspend access to any or all of the Service and/or performance of the Service provided by Americart hereunder and/or terminate this Agreement. Any such suspension or termination will not relieve User from paying any outstanding fees payable to Americart plus interest and late charges. User will be responsible for any costs associated with collecting such fees including, without limitation, legal costs, attorneys' fees, court costs and collection agency fees. Americart may, at its sole discretion, refuse to reinstate User's Account if suspended or charge User a fee of Twenty-Five Dollars ($25.00) to reinstate the suspended User's Account.

 

5. Proprietary Rights.

5.1 License Grant. During the term of this Agreement, User will have a limited, revocable, non-exclusive, non-transferable, royalty-free license to use the Service solely for User's own internal business purposes consistent with the terms and conditions of this Agreement. This Agreement does not constitute a license to User to use Americart's trade names, service marks, or other intellectual property. Any rights not expressly conferred hereunder are reserved by Americart.

5.2 Intellectual Property. User acknowledges and agrees that content available from the Service and Americart's web site, including, but not limited to, text, software, music, sound, logos, trademarks, service marks, photographs, graphics, or video, is protected by copyright, trademark, patent, or other proprietary rights and laws, and may not be copied, downloaded, shared, reproduced, or republished, in whole or in part, without the express written consent of Americart.

5.3 Changes to Service. Americart reserves the right to revise and modify the Service, release subsequent versions thereof and alter features, specifications, capabilities, functions, and other characteristics of the Service, at any time and without notice to User. If any revision or modification to the Service materially changes User's ability to conduct business or User is dissatisfied with the Service, User's sole remedy is to terminate this Agreement pursuant to Section 10.

6. Availability of Service. Americart shall use commercially reasonable efforts to keep the Service available on a twenty-four (24) hour a day, seven (7) day a week basis. Notwithstanding the foregoing, User acknowledges and agrees that the Service may be inaccessible or inoperable for any reason, including, without limitation (a) network malfunctions, (b) periodic maintenance procedures or repairs which Americart may undertake from time to time, (c) modifications or improvements to the Service which Americart may undertake from time to time, or (d) causes beyond the control of Americart or which are not reasonably foreseeable by Americart. The parties acknowledge that since the Internet is neither owned nor controlled by any one entity, Americart makes no guarantee that User will be able to access the Service at any given time. Americart shall not be liable to User for failure of accessibility to the Service or any claims or damages arising therefrom or related thereto. Americart shall not be held responsible in any way for the loss of any of User's sales, data or information due to any technical errors or problems, regardless of the error's or problem's source.

7. Network Abuse. Any attempt to undermine or compromise the security of, or otherwise cause harm to the Network or Americart's customers is strictly prohibited and may result in criminal or civil liability. Examples of Network Abuse include, but are not limited to, (a) introduction of malicious or harmful programs into the Network (e.g., viruses and worms), (b) transmitting, distributing or storing any information, data or material in violation of applicable federal, state or local law, including without limitation, information, data or material protected by copyright, trademark, trade secret, or other intellectual property rights, (c) accessing data of which User is not an intended recipient, (d) defeating identification procedures, (e) impairing the availability, reliability or quality of service for Americart's customers, (f) port scans, flood pings, packet spoofing and forged routing information, (g) breaching security or authentication measures, (h) interfering with Americart services to any user, (i) mail bombing, flooding, deliberate attempts to overload the Network or broadcast attacks, and (j) any activity set forth in Section 2.4. User further agrees not to interfere with the operation of other systems or networks available through the Internet, including, without limitation, any attempt at unauthorized access, and User agrees to follow the applicable use policy of any such system or network User connects to. Americart reserves the right to report such abuses to any and all regulatory, administrative and/or governmental authorities for appropriate prosecution. If Americart, in its sole discretion, deems User's Account to be adversely affecting the Service or Network, Americart reserves the right to terminate or temporarily suspend User's Account.

 

8. Support and Monitoring; Security of User Information.

8.1 Technical Support. Americart will provide User with a reasonable amount of technical support to assist User in the integration of the Service into User's web site. User acknowledges that the level, duration and number of hours of support to be provided by Americart to User shall be determined at the sole discretion of Americart; and User further acknowledges that the support provided by Americart hereunder shall in no way constitute a warranty of any sought, nor does it warrant that User will successfully complete the integration of the Service into User's web site.

8.2 Monitoring the Service. User acknowledges and agrees that Americart has no responsibility to monitor the Service but may do so, in its sole discretion, and disclose information regarding User and its use of the Service to satisfy applicable laws and to protect Americart, its customers and consumers of products and/or services purchased via the Service. Americart reserves the right to remove or refuse to post any information or materials, or facilitate sales of any product and/or services, in whole or in part, which Americart, in its sole discretion, deems to be unacceptable, undesirable or in violation of this Agreement.

8.3 No Protection of User Information. User acknowledges that by placing User information (including User's Account Data) on the Network, including, without limitation, uploads completed by User to facilitate the usage of Americart's Product Search Engine, such User information will become available to all Internet users and Americart has no way of limiting or restricting access to such User information or protecting such information from infringement thereon. User agrees and acknowledges that User shall assume all responsibility and risks associated with the Service and the Internet, including, without limitation, responsibility for evaluating the accuracy, completeness and usefulness of all opinions, advice, services and other information, and the quality and merchantability of all merchandise provided through Americart or on the Internet generally.

9. ECPA Notice. Americart reserves the right to monitor any and all communications through or with Americart's facilities made by User. User acknowledges and agrees that Americart is not deemed a "secure communications medium" for purposes of the Electronic Communications Privacy Act (ECPA), and that no expectation of privacy is afforded User hereunder.

10. Term and Termination.

10.1 Term. The term of this Agreement will commence on the date User's Account is established and shall continue thereafter until the expiration of the subscription period chosen by User, unless earlier terminated pursuant to Sections 10.2 and 10.3.

10.2 Termination by Americart. Americart may terminate this Agreement and/or temporarily suspend or immediately terminate the Service to User at any time, if Americart reasonably believes, in its sole discretion, that User has breached any term or provision of this Agreement. Americart will notify User regarding any breach of this Agreement pursuant to Section 15.8. Americart may, at its sole discretion, allow User to cure such breach within fourteen (14) calendar days following such breach, during which time this Agreement shall remain in full force and effect. Americart shall have no responsibility to notify any third-party providers of services, merchandise or information relating to the Service of the termination or suspension of the Service, nor have any responsibility for any consequences resulting from lack of notification thereof.

10.3 Termination by User. User may terminate the Service and this Agreement at any time, for any reason, by providing notice to Americart pursuant to Section 15.8.

10.4 Effect of Termination. Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except obligations incurred prior to the termination, or as expressly set forth herein. The provisions of this Section 10.4 and Sections 4, 5, 7, 8.3, 11, 12, 13, 14 and 15 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Americart may be entitled. Upon termination of this Agreement for any cause or reason whatsoever, Americart may, at its sole discretion, permanently delete User's Account Data from the Network, and Americart will not be able to restore such data.

11. Indemnification. User agrees that it shall defend, indemnify, save and hold harmless Americart from any and all demands, liabilities, losses, costs, claims, including reasonable attorney's fees, (collectively "Liabilities") asserted or assertable against Americart, its agents, customers, servants, officers, or employees, that may arise or result from (i) any breach of any representation, warranty or covenant made by User in this Agreement, (ii) User's use and/or access to the Service or any additional services provided hereunder, and/or (iii) any service provided, performed or agreed to be performed, or any product sold, by User, its agents, employees or assigns. Without in any way limiting the foregoing, User agrees to defend, indemnify and hold harmless Americart against Liabilities arising out of (a) any injury to person or property caused by any products sold or distributed in connection with the Service, (b) material supplied by User infringing or allegedly infringing on the proprietary rights of a third party, and (c) copyright infringement and any defective product which User sold through the Service.

12. Disclaimer. AMERICART WILL UTILIZE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN ACCEPTABLE PERFORMANCE OF THE SERVICE. HOWEVER, AMERICART MAKES ABSOLUTELY NO WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE REGARDING THE SERVICE OR ANY INFORMATION PROVIDED THROUGH THE SERVICE OR THE INTERNET GENERALLY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AMERICART SPECIFICALLY DISCLAIMS ANY WARRANTY THAT (A) THE SERVICE WILL BE TIMELY, ERROR-FREE OR UNINTERRUPTED, OR (B) AMERICART WILL PROVIDE THE SERVICE CONTINUOUSLY OR AT ANY PARTICULAR TIME, OR (C) THE DATA STORED OR TRANSMITTED VIA THE SERVICE OR NETWORK WILL BE ACCURATE OR COMPLETE. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE USE OF THE SERVICE IS AT USER'S SOLE AND ABSOLUTE RISK.

13. Limitation of Liability. IN NO EVENT SHALL AMERICART BE LIABLE TO USER FOR ANY LOSS OF BUSINESS, PROFITS OR GOODWILL, LOSS OF USE OR DATA, INADVERTENT DISCLOSURE OF OR CORRUPTION OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EVEN IF AMERICART IS AWARE OF THE RISK OF SUCH DAMAGES AND SUCH DAMAGES ARE DUE TO THE FAULT OR NEGLIGENCE OF AMERICART, THAT RESULT IN ANY WAY FROM (A) USER'S USE OR INABILITY TO USE THE SERVICE, (B) ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE SERVICE OR NETWORK, AND (C) USER'S INABILITY TO RECEIVE NOTICES. IN NO EVENT SHALL AMERICART 'S MAXIMUM LIABILITY EXCEED THE LESSER OF (i) THE TOTAL AMOUNT PAID BY USER TO AMERICART FOR THE SERVICE HEREUNDER OR (ii) THE TOTAL AMOUNT PAID BY USER TO AMERICART IN THE PRECEDING TWELVE (12) MONTHS. TO THE EXTENT APPLICABLE, STATE LAW DOES NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, AMERICART'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.

14. Confidentiality. User acknowledges that by reason of its relationship with Americart hereunder, it may have access, either orally or in writing or in some other form, to certain information and materials that Americart considers confidential and proprietary, which includes, without limitation, information and materials relating to Americart's business, plans, products, services, customers, processes, know-how, software, technology, trade-secrets, marketing strategies, financial information and/or other information that has been identified as, or by its nature may be reasonably determined to be, confidential (collectively, "Confidential Information"). User acknowledges that the Confidential Information is of substantial value to Americart which value would be impaired if the Confidential Information were disclosed to third parties. User agrees that it will not in any way copy or use the Confidential Information in any way for its own account (except in connection with the Service) or for the account of any third party (i.e., shall not be used to unfairly compete against or obtain unfair advantage of Americart) nor will User disclose the Confidential Information to any third party. User further agrees that it will protect and safeguard the confidentiality of the Confidential Information against unauthorized use, publication or disclosure as it would its own confidential information, provided that in no event will such protection and safeguard be less than a reasonable standard of care. Confidential Information will not include information that:

(a) was independently developed by User as reasonably demonstrated by User without use of or reference to any Confidential Information;

(b) was lawfully acquired by User from third parties (which had no obligations of confidentiality with respect to such information) as reasonably demonstrated by User;

(c) is or subsequently becomes publicly available through no breach of this Agreement; or

(d) is required to be disclosed by the written order of a court or other governmental body; provided, however, that User shall provide prompt written notice to Americart so that Americart may have time to take action to oppose or limit such order; provided, further, however, that in the absence of a protective order, the disclosure shall be limited to that information that is required by law to be disclosed. Upon the expiration or termination of this Agreement or if otherwise requested by Americart, all Confidential Information shall be returned to Americart or destroyed, and to the extent that any of the Confidential Information is destroyed, User shall certify in writing to the destruction thereof. Upon any breach or threatened breach of this Section 14, Americart shall be entitled, in addition to any other rights and remedies available to it, to seek an injunction restraining User from any actual or threatened breach of this Agreement and to any other appropriate equitable remedy without bond or other security being required and to an award of reasonable attorney's fees.

 

15. Miscellaneous

15.1 User's Name. User hereby grants Americart the right to use User's name in press releases, product brochures and financial reports indicating that user is a customer of Americart.

15.2 Modifications. Any waiver, modification, or amendment of any provision of this Agreement, initiated by User, will be effective only if accepted in writing and signed by an authorized representative of Americart. Americart reserves the right to modify this Agreement at any time without notice to User. Any such modification, including, without limitation, a discontinuance, will legally bind User from the time when Americart publishes an updated version of this Agreement to Americart's web site. Continued use of the Service constitutes User's acceptance and agreement of this Agreement. It is User's sole responsibility, and it is not Americart's responsibility whatsoever, to ensure that User is up-to-date on the most current version of this Agreement.

15.3 Entire Agreement. This Agreement, together with Americart's Policies, constitutes the complete understanding and agreement between Americart and User and supersedes all previous communications, representations, understandings and agreements, either oral or written, between User and Americart.

15.4 Independent Contractors. Americart and User are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.

15.5 Non-Exclusivity. The parties acknowledge and agree that Americart is providing access and use of the Service to multiple customers of Americart and that the Service is non-exclusive to and nontransferable by User.

15.6 Governing Law. This Agreement, and any other agreement for Americart services, will be governed by and construed in accordance with the laws of the State of Texas, USA without reference to its conflicts of laws principles. Any litigation or arbitration between User and Americart will take place in Jefferson County, Texas, and the User hereby consents to personal jurisdiction and venue in that jurisdiction.

15.7 Severability. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed, or if any provision is held invalid by a court of competent jurisdiction, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of Americart, and the remainder of this Agreement shall remain in full force and effect. There shall be no presumption for or against Americart as a result of Americart being the principal drafter of this Agreement.

15.8 Notices. Any notices required or permitted to be given hereunder shall be by e-mail, facsimile or in writing. Americart will use the contact information provided by User, during the Service sign up process, or as maintained by User within User's Account, in sending notices to User. Any notice from User to Americart shall be addressed to: AmeriCart LLC, 2615 Calder Avenue, Suite 140, Beaumont, TX 77702, Attn: Manager; by e-mail, support@americart.com, by facsimile, (800) 936-9006 x150 All notices in writing shall be deemed delivered three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, postage prepaid. All notices sent via facsimile or e-mail shall be deemed delivered upon confirmation of receipt thereof.

15.9 Traffic Data. Americart retains the right to set third party cookies via the cartserver.com platform. These cookies collect limited, non-personally identifiable information. No personal information is shared with any party other than the merchant. This data is used for web traffic reporting metrics.

15.10 Assignment. User may not assign or delegate their rights or obligations under this Agreement, either in whole or in part, without the prior written consent of Americart.

15.11 Force Majeure. Americart will not be liable for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by circumstances beyond Americart's reasonable control, including acts of God, wars, terrorism, computer system attacks or disruptions, insurrection, civil commotions, riots, national disasters, earthquakes, strikes, fires, floods, water damage, explosions, shortages of labor or materials, labor disputes, transportation problems, computer system crashes or viruses, communications interruptions or failures, power outages or interruptions, accidents, embargoes, or governmental restrictions (collectively "Force Majeure"). Americart will make reasonable efforts to reduce to a minimum and mitigate the effect of any Force Majeure.

15.12 Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.

15.13 Headings. The section headings and captions contained herein are for reference purposes and convenience only and shall not in any way affect the meaning or interpretation of this Agreement.

16. Acknowledgement. By subscribing to the Service, User acknowledges and agrees that User (a) has read this Agreement in it entirety and has consulted with and been counseled by his/her/its own legal counsel and/or other advisors in connection therewith, (b) understands the terms and conditions of this Agreement, (c) is entering into this Agreement voluntarily and with a full understanding of the meaning and legal effects of each provision contained in this Agreement, and (d) agrees to be bound by the terms and conditions of this Agreement.

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