Miva Merchant Script Compiler 5 License Agreement

Last updated: 6 May 2005

Subject to change without notice.

NOTICE: THIS MIVA MERCHANT SOFTWARE PRODUCT (TOGETHER WITH ITS ACCOMPANYING DOCUMENTATION, THE "PRODUCT") IS THE PROPERTY OF MIVA MERCHANT CORPORATION ("MIVA MERCHANT"). THE PRODUCT IS MADE AVAILABLE TO YOU, THE ORIGINAL PURCHASER, SUBJECT TO THE FOLLOWING LICENSE AGREEMENT ("LICENSE"). PLEASE READ THIS LICENSE CAREFULLY BEFORE INSTALLING OR USING THE PRODUCT. A COPY OF THIS LICENSE IS AVAILABLE FOR YOUR FUTURE REFERENCE IN THE "LICENSE.TXT" FILE PROVIDED WITH THE PRODUCT.

YOU MAY ACCEPT THIS LICENSE BY PLACING A CHECK IN THE "I ACCEPT THE LICENSE AGREEMENT" BOX BELOW. YOU MAY REJECT THIS LICENSE, AND TERMINATE THIS INSTALLATION PROCESS, BY CLICKING THE "CANCEL" BUTTON BELOW. IF YOU DO NOT ACCEPT THIS LICENSE, THEN YOU MAY NOT INSTALL OR USE THE PRODUCT. IN THAT CASE, YOU MAY, WITHIN TEN (10) DAYS AFTER YOU FIRST RECEIVED THE PRODUCT, RETURN IT TO MIVA MERCHANT OR YOUR MIVA MERCHANT AUTHORIZED RESELLER, ALONG WITH ITS ORIGINAL PACKAGING AND PROOF-OF-PURCHASE, FOR A FULL REFUND. ANY USE BY YOU OF THIS PRODUCT ALSO CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS.

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

1. OWNERSHIP.
The Product is proprietary to Miva Merchant. The Product is licensed, not sold, to you notwithstanding any reference herein to "purchases." You acknowledge and agree that: (a) the Product is protected under U.S. copyright and other laws; (b) Miva Merchant and its licensors retain all copyrights and other intellectual property rights in the Product; (c) there are no implied licenses under this License, and any rights not expressly granted to you hereunder are reserved by Miva Merchant; (d) you acquire no ownership or other interest (other than your license rights) in or to the Product; and (e) Miva Merchant owns all copies of the Product, however made. You agree that you will not, at any time, contest anywhere in the world Miva Merchant's ownership of the Product, nor will you challenge the validity of Miva Merchant's rights in the Product. You have no rights hereunder to use any trademark or service mark belonging to Miva Merchant.

2. GRANT OF LICENSE AND SCOPE OF USE.

2.1 Grant of License. Subject to the terms and conditions of this License, Miva Merchant grants to you, if you are an individual, or, if you are an entity, one (1) designated person in your organization ("Named User") a personal, nonexclusive, nontransferable and limited license to use the Product solely to create, compile (including byte code compile), test and deploy, in source or object code form, your own application programs and other works ("Works") created by you. You may not compile Works of others nor may you create, offer or run a compilation service for others. You may install the Product on a reasonable number of machines provided that the Named User is the only individual permitted to use the Product. Subject to the other terms and conditions of this License, you may distribute your Works to others for production use. You may also make a reasonable number of copies of the Product to backup devices such as hard disks, optical media, or tape and one (1) physical CD media backup copy of the Product solely to replace the original copy provided to you if the original copy is damaged or destroyed. All rights not specifically granted to you herein are retained by Miva Merchant.

2.2 Multiple Licensed Copies.
You may purchase from Miva Merchant or its authorized reseller additional licenses to permit multiple Named Users to use the Product (each, a "Named User License"). Such rights will be effective only when granted in writing by Miva Merchant or its authorized reseller and are conditioned upon your payment of the applicable fees. If you purchase additional Named User Licenses for the Product then you are granted for each Named User License the personal, nonexclusive, nontransferable and limited license to designate one individual in your organization as the Named User and permit such Named User to install and use the Product solely as permitted under Section 2.1. In such case, the Product may be used exclusively by the specifically designated Named Users, subject to all the terms and conditions of this License. You agree that you will not designate more Named Users than the number of Named User Licenses that Miva Merchant or its authorized reseller has expressly granted to you and you will not allow the Product to be used by any individuals other than the Named Users designated by you from time to time. You agree that Products may only be used on Works created solely by Named Users. You agree to maintain accurate records of the Named User designated by you to use the Product under each Named User License you hold.

3. GENERAL TERMS THAT APPLY TO COMPILED PROGRAMS AND REDISTRIBUTABLES.
3.1 Redistributables. The Product may include certain files, libraries and/or source code specifically designated as "redistributables" by Miva Merchant in the accompanying printed or on-line documentation and that are necessary to use Works created using the Product ("Redistributables"). From time to time, Miva Merchant may designate other files as Redistributables. You should refer to the documentation, including any "readme" or "deploy" files provided with the Product, for additional information regarding Redistributables. Subject to the terms and conditions of this License, you may freely redistribute source code or compiled code that is entirely your own and does not contain any Redistributables.

3.2 Licensing of Redistributables.
Subject to the terms and conditions of this License including the restrictions of Section 3.3, Miva Merchant grants you the personal, non-exclusive, non-transferable and limited license to: (a) make exact copies of the Redistributables and distribute those copies solely as components of your Works and solely as required for permitting end users of the Works ("End Users") to install and execute the Works; (b) install and execute Redistributables, without modification, on computers that you own or possess solely for your own internal use; and (c) sublicense to your End Users the personal, nonexclusive, non-transferable right to install and execute Redistributables, without modification, solely as components of Works and solely for such End Users' own internal use, subject to End Users' compliance with the restrictions in Section 5 as to Redistributables. The rights granted to you under this Section 3.2 may not be exercised by others, including co-developers, regardless of how you might compile, link, or package your Works. These rights apply only to Redistributables and to no other file, library, source code or other component or derivative work of the Product. They may be exercised only with respect to Works created by you using a duly licensed, properly registered copy of the Product.

3.3 Certain Restrictions.
Regardless of any modifications that you make and regardless of how you might compile, link, or package your Works: (a) you may not permit your End Users to modify or further distribute Redistributables or use Redistributables in any program that they create; (b) you may not use Miva Merchant's or any of its suppliers' names, logos, or trademarks to market your Works, except to state descriptively that your Work was written using the Product; (c) all copies of the Works you create must bear a valid copyright notice, either your own or the Miva Merchant copyright notice that appears on the Product, and you may not remove or alter any Miva Merchant copyright, trademark or other proprietary rights notice contained in any portion of the Redistributables; and (d) you may only distribute Redistributables with Works that add primary and substantial functionality to the Redistributables and are not merely a set or subset of any of the Redistributables, and that are created in accordance with the terms of this License.

3.4 Relationship with End Users.
Except as set forth in Section 4, there are no third party beneficiaries to this License. Consequently, Miva Merchant provides no warranty at all to any person, other than the limited warranty provided to you the original purchaser of the Product, as set forth herein, and you will be solely responsible to your End Users (or anyone else who uses or acquires Works) for support, service, upgrades, or technical or other assistance (including with respect to any Redistributables included therein), and such persons will have no right to contact Miva Merchant for any services or assistance. You will indemnify, defend and hold Miva Merchant, its licensors, its suppliers and each of their respective employees, officers, directors and affiliates, harmless from and against any claims or liabilities arising out of or related to the use, procurement, reproduction or distribution of your Works by third parties.

3.5 Distribution of Redistributables.
If you distribute any portion of a Redistributable including any source or data file of a Redistributable or any portion thereof, you must include the following in a conspicuous location in an agreement governing such distribution:
This software is subject to the terms of the Miva Script Compiler License Agreement available at the following URL: http://www.miva.com/products/compiler/license.html. Copyright (C) 2002, Miva Corporation. All Rights Reserved. You must accept the terms of that agreement to use this software.
Additionally, if you distribute a Redistributable or any portion thereof, YOU must include the following in appropriate and conspicuous locations:
Includes software which is Copyright (C) 2002 Miva Corporation. All Rights Reserved.

3.6 Third Party Software.
The Product, including Redistributables, may include source code, redistributable files, and/or other files provided by a third party vendor (³Third Party Product²). Since use of Third Party Product might be subject to license restrictions imposed by the third party vendor, you should refer to the on-line documentation (if any) provided with Third Party Product for any license restrictions imposed by the third party vendor. In any event, any license restrictions imposed by a third party vendor are in addition to, not in lieu of, the terms and conditions of this License.

3.7 Other Rights.
Contact Miva Merchant for the applicable royalties due and other licensing terms for all other uses or distribution of the Redistributables.

4. SPECIAL TERMS.
The following terms and conditions ("Special Terms") are specific to certain editions, versions and components of the Product and are in addition to the provisions of Sections 2 and 3. If any provision of the Special Terms applicable to the Product conflicts with any other provision of this License, then the provision of the Special Terms will supercede and control.

4.1 ADDITIONAL LICENSE TERMS APPLICABLE TO THIRD PARTY SOFTWARE
Certain components of the Product use or incorporate third-party software programs and/or libraries ("Third-Party Software") which are loaded (in both object and source code form) on the Product media or downloaded in conjunction or subsequent to the download of the Product.
You agree that Miva Merchant's third-party licensors and suppliers are intended third party beneficiaries of all terms and conditions of this License intended to protect intellectual property rights in the Product (including the Third-Party Software) and limit certain uses thereof.

4.2 ADDITIONAL LICENSE TERMS APPLICABLE TO UPGRADES
If you have purchased an upgrade version of the Product, it constitutes a single product with the copy of the Product that you upgraded. This means that, although you may have two sets of Product media, you still have only one license. Therefore, you may not transfer the original copy of the Product to any other party.

5. LIMITATIONS.
You may not: (a) modify, adapt, alter, translate, or create derivative works of the Product or merge the Product with other software other than as described in the Product's accompanying documentation or as approved of in writing by Miva Merchant; (b) lease, rent or loan the Product to any third party; (c) sublicense, distribute or otherwise transfer the Product or any component thereof to any third party except as expressly authorized in this Agreement; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Product; (e) remove, alter, or obscure any confidentiality or proprietary notices (including copyright and trademark notices) of Miva Merchant or its suppliers on the Product; (f) allow third parties to access or use the Product such as in a time-sharing arrangement or operate the Product as part of a service bureau or, except as expressly authorized under Sections 2, 3 or 4, otherwise for the use or benefit of third parties; (g) reproduce or use the Product except as expressly authorized under Sections 2, 3 or 4; or (h) disclose or publish performance benchmark results for the Product. The rights granted under this License apply only to this Product. You must procure a separate license to use other Miva Merchant software. Furthermore, you may not permit your End Users to conduct the restricted activities limited by items (a) through (e), (g) and (h) above insofar as they apply to Redistributables, and such End User's sublicense rights to the Redistributables are conditioned upon compliance with such limitations. The limitations in this Section 5 apply equally to your use of the Product, in whole or in part, including any component or Redistributable.

6. LIMITED WARRANTY AND DISCLAIMER.
Miva Merchant warrants to you, the original purchaser and to no other party, that any physical media included with the Product, as and when provided to you, will be free of physical defects in materials and workmanship for a period of ninety (90) days after the date that you initially acquire the Product. Your exclusive remedy and Miva Merchant's sole liability for breach of this warranty is that Miva Merchant will replace any defective media returned to Miva Merchant within the ninety (90) day warranty period. This warranty does not apply to damages resulting from misuse, abuse or neglect. Any replacement media will be warranted as above for the remainder of the original warranty period or twenty (20) days from the date we ship it to you, whichever is longer. EXCEPT FOR THIS EXPRESS LIMITED WARRANTY, THE PRODUCT IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. MIVA MERCHANT HEREBY EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON- INFRINGEMENT, TITLE, RESULTS, EFFORTS OR QUIET ENJOYMENT. THERE IS NO WARRANTY THAT THE PRODUCT WILL BE ERROR-FREE OR WILL FUNCTION WITHOUT INTERRUPTION. YOU ASSUME THE ENTIRE RISK FOR THE RESULTS OBTAINED USING THE PRODUCT. TO THE EXTENT THAT MIVA MERCHANT MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED 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.

7. SERVICES; UPDATES; PRODUCT CHANGES.
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 Product, such modification will be deemed part of the Product, 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 Product and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of any future releases of the Product.

8. REGISTRATION.
You must register the Product with Miva Merchant as a condition to your rights to use the Product. You will be prompted to register the Product at the time of your installation or first use of the Product, at which time you will be notified (or directed to online resources explaining) how registration information provided by you may be used and you will be afforded the opportunity to opt out of certain uses of such information.

9. CONFIDENTIALITY.
You acknowledge that the Product 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 Product as permitted under this License.

10. LIMITATION OF LIABILITY. 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 OR DATA, ARISING FROM OR RELATING TO THIS LICENSE OR THE PRODUCT, 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 PRODUCT, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY YOU UNDER THIS LICENSE. THIS SECTION 10 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.

11. THIRD PARTY CLAIMS.
Miva Merchant will defend and settle any suit brought against you by a third party (not your affiliate) based on a claim that the Product infringes upon any U.S. copyright and Miva Merchant will pay those costs and damages finally awarded against you in such suit that are specifically attributable to such claims or those amounts payable by you under a settlement of such suit. The foregoing obligations are conditioned on you: (a) notifying Miva Merchant promptly in writing of such action; (b) giving Miva Merchant sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Miva Merchant's request and expense, assisting in such defense. If the Product becomes, or in Miva Merchant's opinion is likely to become, the subject of an infringement claim that Miva Merchant is required to defend, then Miva Merchant may (at its option and expense) either: (a) procure for you the right to continue using the Product; (b) replace or modify the Product so that it becomes non-infringing; or (c) terminate this License and your rights hereunder to use the Product and refund a pro rata portion of any license fee you paid under this License, based on a three (3) year product life. Notwithstanding the foregoing, Miva Merchant will have no obligation under this Section 11 or otherwise with respect to any infringement claim based upon: (a) any use of the Product not in accordance with this License or the products accompanying documentation: (b) any use of the Product in combination with other products, equipment, software, or data not provided by Miva Merchant; (c) any use of any version of the Product other than the most current version made available to you; or (d) any modification of the Product by any person other than Miva Merchant or its authorized agents ("Excluded Claims"). You will indemnify Miva Merchant against all liability, damages and costs (including reasonable attorneys' fees) resulting from or related to an Excluded Claim. This section 11 states Miva Merchant's entire liability and your sole and exclusive remedy for third-party claims relating to the Product.

12. TERM AND TERMINATION.

12.1 Term.
The term of this License will begin as of the date that you receive the Product and will remain in effect perpetually unless terminated under this Section 12.

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

12.3 Termination for Cause.
Miva Merchant may terminate this License if you breach your obligations hereunder. Miva Merchant will effect such termination by giving you notice of termination, specifying therein the alleged breach. If your breach is curable, you will have a grace period of thirty (30) days after such notice is served to cure the breach described therein. If the breach is cured within the thirty (30) day grace period, then this License will remain in effect; otherwise, this License will automatically terminate upon the conclusion of the thirty (30) day grace period.

12.4 Effect of Termination.
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 Product and any Redistributables; (b) you must return to Miva Merchant or destroy all copies of the Product 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 with the exception of the licenses granted in Sections 2, 3 and 4, will survive termination of this License for any reason.

13. GENERAL PROVISIONS.
13.1 Canadian Transactions.
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.

13.2 Hazardous Uses.
The Product is not intended for use, and you may not use or allow others to use the Product, 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 Product.

13.3 Governing Law.
This License will be governed by and construed in accordance with the laws of the United States and the State of California, 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).

13.4 Entire License; Severability.
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.

13.5 Assignment.
You may not transfer the Software media, 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 attempted assignment in violation of this Section 13.5 will be void.

13.6 Export Control.
You may not directly or indirectly transfer the Product, 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 Products 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 Product.

13.7 U.S. Government Rights.
The Product is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of ³commercial computer software² 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 Product with only those rights set forth in this License.

13.8 Waiver and Modifications.
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.

If you have any questions about this License, please contact Miva Merchant. If you agree to the terms and conditions of this License Agreement, please place a check in the "I ACCEPT THE LICENSE AGREEMENT" box below. This 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 Product. If you do not agree with these terms and conditions, you should click the "CANCEL" button below to exit this installation process, as Miva Merchant is unwilling to license the Product to you in such case, and you may return the Product within ten (10) days after you first received it to Miva Merchant or your Miva Merchant authorized reseller, along with its original packaging and proof-of-purchase, for a full refund.

Miva Merchant
5060 Shoreham Place, Ste. 330
San Diego, CA 92122

###END###