
Miva Merchant Designer License Agreement
Last updated: 24 April 2008

NOTICE: THIS MIVA MERCHANT SOFTWARE PRODUCT (TOGETHER WITH ITS ACCOMPANYING DOCUMENTATION, THE "PRODUCT") IS THE PROPERTY OF MIVA MERCHANT ("Miva Merchant"). THE PRODUCT IS MADE AVAILABLE TO YOU, THE ORIGINAL PURCHASER OR THE INSTALLER, 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 CLICKING THE "ACCEPT" BUTTON BELOW. YOU MAY REJECT THIS LICENSE, AND TERMINATE THIS INSTALLATION PROCESS, BY CLICKING THE "DECLINE" BUTTON BELOW. IF YOU DO NOT ACCEPT THIS LICENSE, THEN YOU MAY NOT INSTALL OR USE THE PRODUCT. IN THAT CASE AND, IF YOU PURCHASED THE PRODUCT OTHER THAN ELECTRONICALLY, 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 synchronize templates on the desktop computer of a Named User with a Miva Merchant store.  If you purchased the Product other than electronically, you may also make a reasonable number of copies of the Product to backup devices such as hard disks, optical media, CD, or tape 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 or obtain from Miva Merchant or its authorized reseller additional licenses to permit a Named User to use the Product with additional Miva Merchant stores. Such rights will be effective only when granted in writing by Miva Merchant or its authorized reseller and are conditioned upon your payment of any applicable fees. 

3. ADDITIONAL LICENSE TERMS APPLICABLE TO THIRD PARTY SOFTWARE. 
Certain components of the Product may 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.  Miva Merchant does not control or endorse any such Third-Party Software and provides no guarantee that the Product will function with any updates or upgrades to the Third-Party Software.

4. ADDITIONAL LICENSE TERMS APPLICABLE TO UPGRADES. 
If you have purchased or obtained 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 License; (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 and 4 above, otherwise for the use or benefit of third parties; (g) reproduce or use the Product except as expressly authorized under Sections 2, 3 and 4 above; 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. 

6. LIMITED WARRANTY (IF APPLICABLE) AND DISCLAIMER. 
If you purchased the Product, 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 with Miva Merchant as a condition to your rights to use 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. 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, IF ANY, UNDER THIS LICENSE. THIS SECTION 9 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. 

10. TERM AND TERMINATION. 
10.1 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 10.  

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

10.3 Termination for Cause. 
Miva Merchant may terminate this License immediately and without notice if you breach any of your obligations hereunder. 

10.4 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 above, will survive termination of this License for any reason. 

11. HAZARDOUS USE.
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. 

12. GOVERNING LAW; VENUE.
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 hereby submit to the exclusive jurisdiction and venue of the state and federal courts located in San Diego County, California for the purpose of resolving any disputes arising under this License. The parties agrees that the Uniform Computer Information Transaction Act (UCITA), or any version thereof, adopted by any state in any form, shall not apply to this License and, to the extent that UCITA is applicable, the parties agree to opt-out of the applicability of UCITA pursuant to the opt-out provision(s) contained therein.  The parties expressly exclude the application of the 1980 United Nations Convention on the International Sale of Goods (if applicable). 

13. GENERAL PROVISIONS.
13.1 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. This License shall inure to the benefit of Licensor, its successors, and assigns.

13.2 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 13.2 will be void. 

13.3 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. 

13.4 U.S. Government Rights. 
The Product 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 Product with only those rights set forth in this License. 

13.5 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, please click the "ACCEPT" button 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 "DECLINE" button below to exit this installation process, as Miva Merchant is unwilling to license the Product to you in such case and, if you purchased the Product other than electronically, 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
Suite 330
San Diego, CA 92122-5903

