Miva Merchant Empresa™ License Agreement

Miva Merchant Empresa™ License Agreement

Last updated: 14 March 2006

Subject to change without notice.

NOTICE: THIS MIVA MERCHANT SOFTWARE (TOGETHER WITH ITS ACCOMPANYING DOCUMENTATION, THE “SOFTWARE”) IS THE PROPERTY OF MIVA MERCHANT SOLUTIONS, INC. (“MIVA MERCHANT”). THE SOFTWARE IS MADE AVAILABLE TO YOU, THE ORIGINAL USER/DOWNLOADER/INSTALLER, SUBJECT TO THE FOLLOWING LICENSE AGREEMENT (“LICENSE”). PLEASE READ THIS LICENSE CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE. A COPY OF THIS LICENSE IS AVAILABLE FOR YOUR FUTURE REFERENCE IN THE “LICENSE.TXT” FILE PROVIDED WITH THE SOFTWARE.

BY DOWNLOADING AND INSTALLING THE SOFTWARE DESCRIBED IN THIS LICENSE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS LICENSE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT INSTALL THE SOFTWARE. IF YOU DO NOT ACCEPT THIS LICENSE, THEN YOU MUST NOT INSTALL OR USE THE SOFTWARE. ANY USE BY YOU OF THIS SOFTWARE ALSO CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS.

Miva Merchant is only willing to grant you this License if you obtained the Software from Miva Merchant or a Miva Merchant authorized reseller or Miva Merchant authorized distributor. If you obtained the Software from any other source you must not install or use the Software.

The Software may use, incorporate and/or be distributed with certain third-party software and/or technology (“Third-Party Software”) and/or other Miva Merchant software and/or technology (“Additional Software”), which are loaded on the Software media or downloaded in conjunction with or subsequent to the download of the Software. You may be required to enter into a separate license agreement with Miva Merchant for your use of the Additional Software and/or a third party for your use of the Third-Party Software, and your use of any Additional Software or Third-Party Software must be in accordance with the terms and conditions of any such license agreement. The terms and conditions of this License and any other license agreement in no way modify or limit the terms or conditions of the other. Miva Merchant does not control or endorse any such Third-Party Software and provides no guarantee that the Software will function with any updates or upgrades to the Third-Party Software.

Definitions:

(i) “License” refers to this document and the legally binding terms and conditions contained herein.

(ii) “Miva Merchant” refers to Miva Merchant, Inc.

(iii) "Miva Merchant Empresa™" refers to version 4 or later software named Miva Merchant Empresa, developed and distributed by Miva Merchant, which executes binary object code produced by Miva Merchant Script Compiler™.

(iv) "Miva Merchant Mia™" refers to version 4 or later desktop web server software named Miva Merchant Mia, developed and distributed by Miva Merchant, which executes binary object code produced by Miva Merchant Script Compiler.

(v) "MivaScript™" refers to proprietary server side scripting language software developed and distributed by Miva Merchant.

(vi) "Miva Merchant Script Compiler™" refers to a separately licensed software, developed and distributed by Miva Merchant, which converts MivaScript into a binary object code.

(vii) "Software" refers to copies of Miva Merchant Empresa and/or Miva Merchant Mia.

(viii) "You" refers to the person, entity or organization that is using the software covered by this License, and any successor or assignee of same.

This License is between You and Miva Merchant. You acknowledge that Miva Merchant is granting and has granted this License in reliance upon representations made by You and You warranty the truthfulness and accuracy of such representations. Any breach of this warranty of truthfulness and accuracy shall constitute a breach of this License. Miva Merchant has the sole and unqualified right to refuse to license any person or entity for any reason, except for reasons which are specifically prohibited by state and national laws and statutes.

Subject to the terms and conditions of this License, Miva Merchant grants You the non-exclusive, non-transferable and limited License to make an exact copy of the Software and install the copy as required for You to execute binary object code created by the Miva Merchant Script Compiler. You may make copies and distribute the Software or provide access to the Software as long as (a) the recipient of the copy agrees to this License electronically or in writing; (b) You record the contact information of the recipient; and (c) You clearly label the Software as the property of Miva Merchant.

The Software contains valuable proprietary rights of Miva Merchant. There is no transfer to You of any title to or ownership of the Software or any copyright, trade name, trade secret, source code, or other proprietary rights relating to the Software, regardless of the form that the Software exists in. You must not violate these rights, and You must take all appropriate steps to protect Miva Merchant's rights. You acknowledge that the Software in source code form remains a confidential trade secret of Miva Merchant. You agree to hold this information in confidence, not disclose it to any person, and not use it for any purpose other than the use and operation of the Software as permitted under this License.

Any License, right, or permission to use the Software is automatically revoked if You breach any term or condition of this License. You agree that in the event of a breach of this License, and upon the demand thereof by Miva Merchant, You will immediately cease any further use of the Software and You will cease any use related to the claimed breach of this License. You agree that monetary damages alone are not an adequate and just relief resulting from any breach of this License, that a court order prohibiting any further breach of this License is necessary to prevent further damages, and that You will not oppose any reasonable request for a temporary restraining order, preliminary injunction, or other relief sought by Miva Merchant in the event of a breach of this License. Miva Merchant shall not be required to notify You of any breach, nor make any demand or claim against You resulting from any such breach, or for a demand to stop any use or distribution in violation of the terms of this License, and You agree that any breach of this License and damages resulting therefrom shall relate back to the first and earliest breach thereof. Failure of Miva Merchant to enforce its rights pursuant to this License shall not constitute a waiver of such rights, and shall not prejudice Miva Merchant in any later enforcement of its rights or rights to seek damages therefrom.

THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANYKIND. MIVA MERCHANT HEREBY EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORYWARRANTIES.

MIVA MERCHANT WILL NOT BE LIABLE FOR (A) ANY BUG, ERROR, OMISSION, DEFECT, DEFICIENCY, OR NONCONFORMITY IN THE SOFTWARE (B) IMPLIED WARRANTY OF MERCHANTABILITY, (C) IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (D) IMPLIED WARRANTY OF QUALITY, NON-INFRINGEMENT, TITLE, RESULTS, EFFORTS OR QUIET ENJOYMENT, (E) IMPLIED WARRANTY RELATING TO COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE OR ANY OTHER IMPLIED WARRANTY OF ANY TYPE WHATSOEVER, OR (F) ANY CLAIM OF INFRINGEMENT.

THERE IS NO WARRANTY THAT THE SOFTWARE WILL BEERROR-FREE OR WILL FUNCTION WITHOUT INTERRUPTION. YOU ASSUME THEENTIRE RISK FOR THE RESULTS OBTAINED USING THE SOFTWARE. TO THE EXTENTTHAT MIVA MERCHANT MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLELAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUMPERMITTED UNDER SUCH LAW. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS, WHICH VARY FROM STATE TO STATE.

IN NO EVENT WILL MIVA MERCHANT BE LIABLE TO ANY PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY LOSS OF PROFIT, REVENUE, BUSINESS OPPORTUNITY, DATA OR USE, ARISING FROM OR RELATING TO THIS LICENSE OR THE SOFTWARE, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, EVEN IF MIVA MERCHANT KNEW, SHOULD HAVE KNOWN OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MIVA MERCHANT’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS LICENSE OR THE SOFTWARE, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY YOU UNDER THIS LICENSE OR ONE HUNDRED U.S. DOLLARS, WHICHEVER IS LESS. THIS SECTION WILL APPLY EVEN IF AN EXCLUSIVE REMEDY HEREUNDER HAS FAILED OF ITS ESSENTIAL PURPOSE.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

Miva Merchant is not required under this License to provide any installation, training or other services to You. Such services, if available, must be purchased separately. If, pursuant to a separate support agreement or otherwise, Miva Merchant provides You with a new release, error correction, update, upgrade or other modification to the Software, such modification will be deemed part of the Software, and subject to the terms of this License, unless the modification is expressly provided subject to a separate license agreement. Miva Merchant reserves the right at any time not to release or to discontinue release of any Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of any future releases of the Software. Miva Merchant reserves all rights to, at any time, replace, modify, alter, improve, enhance, or change the Software without prior notice.

You must register the Software with Miva Merchant as a condition to your rights to use the Software.

The term of this License will begin as of the date that You receive the Software and will remain in effect perpetually unless terminated.

You may terminate this License for any reason, or for no reason, by giving Miva Merchant five (5) days’ written notice.

Miva Merchant may terminate this License immediately and without notice if You breach any of your obligations hereunder.

Upon the termination of this License for any reason the following terms shall apply: (a) all rights granted under this License will immediately terminate and you must stop all use of the Software; (b) you must return to Miva Merchant or destroy all copies of the Software provided to or made by you, and will, within ten (10) days after the effective date of termination, provide Miva Merchant with written certification that all such copies have been returned or destroyed; and (c) all provisions of this License will survive termination of this License.

If You are subject to Canadian law, You agree to the following: The parties hereto have expressly required that the present License and its Exhibits be drawn up in the English language. / Les parties aux présentes, ont expressément exigé que la présente Convention et ses Annexes soient rédigées en langue anglaise.

The Software is not intended for use, and You may not use or allow others to use the Software, in connection with any application requiring fail-safe performance such as the operation of nuclear power facilities, air traffic control or navigation systems, weapons control systems, life support systems, or any other system whose failure could lead to injury, death, environmental damage or mass destruction. You agree that Miva Merchant will have no liability of any nature, and You are solely responsible, for any expense, loss, injury or damage incurred as a result of such use of the Software.

This License will be governed by and construed in accordance with the laws of the United States and the State of Delaware, without giving effect to any conflicts or choice of laws principles that would require the application of the laws of a different jurisdiction. The parties expressly exclude the application of the 1980 United Nations Convention on the International Sale of Goods (if applicable).

This License constitutes the entire, final and exclusive agreement between you and Miva Merchant regarding the specific license transaction described herein. If any provision of this License is held to be illegal, invalid or unenforceable for any reason, then such provision will be enforced to the maximum extent permissible and the remainder of the provisions of this License will remain in full force and effect.

You may not assign this License or assign any of your rights or delegate any of your obligations under this License, by operation of law or otherwise (including by merger, sale of assets or consolidation), without Miva Merchant’s prior written consent. Any such assignment or attempted assignment in violation of this provision will be void.

You may not directly or indirectly transfer the Software, including its documentation, to any country if such transfer would be prohibited by applicable law, including the U.S. Export Administration Act and the regulations issued thereunder. You agree to the foregoing and You are representing and warranting that You are not located in, under the control of, or a national or resident of any such country. You will be solely responsible for identifying and complying with all laws of any jurisdiction outside of the United States regarding the import, export or use of Software and technical data supplied by Miva Merchant. You will obtain at your own expense all licenses, permits or approvals required by any government to use the Software.

The Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth in this License.

All waivers must be in writing. Any waiver or failure to enforce a provision of this License on one occasion shall not be deemed a waiver of any other provision or such provision on any other occasion. This License may only be amended by a written document signed by both parties or by Miva Merchant by posting a copy of such amendment to its website. Please check Miva Merchant’s website regularly for any amendments to this License.

If You have any questions about this License, please contact Miva Merchant. Installing and any use of the Software will be the legal equivalent of your signature on a written contract and the terms of this License shall be a legally binding agreement between You and Miva Merchant. You must agree to these terms and conditions in order to install and use the Software. If you do not agree with these terms and conditions, You must not continue with this installation process as Miva Merchant is unwilling to license the Software to you in such case, and you may return the Software, if purchased, within ten (10) days after you first received it to Miva Merchant.

Miva Merchant
5060 Shoreham Place, Suite 330
San Diego, CA 92122

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