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License Agreement

MOVABLE TYPE SOFTWARE 
PERSONAL USE LICENSE AGREEMENT

READ CAREFULLY - THIS IS A BINDING LEGAL AGREEMENT

Use of Movable Type(r) software (the "Software") is subject to the all of the terms and conditions of this Movable Type Personal Use License Agreement (the "Agreement") between you individually (the "End User") and Six Apart Ltd. ("Six Apart").  By selecting "I Accept" when downloading the Software, or by downloading, copying, installing or using the Software at any time, the End User agrees to be bound by all of the terms and conditions of this Agreement.  If the End User does not agree to all of the terms and conditions of this Agreement, the Software may not be copied, installed or used and must be removed from all of the End User's computer systems.

1. LICENSE GRANT.

1.1 Subject to the terms and conditions of this Agreement, Six Apart hereby grants to the End User, commencing on the date of the End User's first receipt of the link to the URL from which the Software can be downloaded (the "Effective Date") and continuing for the term of this Agreement, a non-exclusive, non-transferable, world-wide, limited license to install and use the Software, in the form provided by Six Apart with all proprietary notices intact, and to use any documentation provided in connection with the Software (the "Documentation"):  (i) on a single production server to create, publish and maintain an unlimited number of Web logs ("blogs") for an unlimited number of Users solely for the End User's own "Personal Purposes"; and (ii) on an unlimited number of other computer systems solely for the purposes of testing, training, development, quality assurance, validation, backup and/or disaster recovery.  For the purposes of this Agreement, the rights granted in this Section 1.1 are collectively referred to as the "License Grant".

1.2 For the purposes of this Agreement, "Personal Purposes" means the End User being engaged, on the End User's own behalf, in personal, non-commercial activities.  "Personal Purposes" specifically excludes:

1.2.1 Any commercial endeavor, either directly or indirectly, whether or not the End User actually generates profits from the commercial endeavor, although affiliate or associate fees that are earned by the End User personally through activities incidental to the main purpose of the Web log are permitted;

1.2.2 Any use of the Software by a company, a corporation, a partnership, non-profit organization, educational institution, government body or any other form of organization; or

1.2.3 Any use of the Software to create a Web log or site solely for the purpose of driving affiliate traffic or republishing feeds.
 
1.3	For the purposes of this Agreement, "User" means a unique login name generated or recognized by an instance of the Software that possesses the permission to do anything more than commenting on one or more blogs and which has been used to log in to the Software within the prior ninety (90) days.  Notwithstanding the foregoing, an individual who is no longer authorized by the End User to make use of the Software no longer counts as a User effective upon the date of the end of his/her authorization to make use of the Software, even if such individual has logged in to the Software within the prior ninety (90) days.  Use of a login name by more than one person is prohibited.

1.4	Six Apart reserves the right to determine, in its sole discretion, whether the End User's use of the Software at any time complies with the authorized "Personal Purposes" specified in this Agreement.  If Six Apart determines that the End User is not using the Software in a manner which complies with the authorized "Personal Purposes" specified in this Agreement, Six Apart may, in its sole discretion, terminate this Agreement upon notice to the End User or invoice the End User license fees appropriate to the End User's actual use, retroactive to the date of first such actual use, and the End User will pay such invoice within thirty (30) days of receipt.

2.	RIGHTS RESERVED.  Six Apart owns all right, title and interest in and to the Software and the Documentation.  Six Apart reserves all rights to the Software and Documentation that are not expressly granted in this Agreement.  Nothing in this Agreement will be construed as granting the End User any property rights, by license or otherwise, to the Software or any Documentation, or to any invention or any patent, copyright, trademark, or other intellectual property right that has been issued, or that may issue, based on the Software and/or Documentation.  The Software and Documentation are licensed hereby, not sold.

3.	RESTRICTIONS.

3.1	The End User will use the Software in compliance with any and all applicable laws, rules and regulations of the jurisdictions in which the End User uses the Software.  In addition, the End User may not under any circumstances:

3.1.1 Create and/or distribute derivative works based on the Software and/or Documentation (however, the creation and/or distribution of plugins and other extensions to the Software making use of application programming interfaces published by Six Apart is permitted);

3.1.2 Reproduce the Software and/or the Documentation except as described in this Agreement;

3.1.3 Reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or discover any source code or algorithms of the Software;

3.1.4 Sell, lease, assign, license, sublicense, disclose, distribute or otherwise transfer or make available the Software and/or the Documentation, in whole or in part or any copies thereof, in any form to any third parties;

3.1.5 Host the Software for third party use or otherwise make the Software's functionality available to third parties as an application service provider or service bureau;

3.1.6 Remove or alter any proprietary notices on the Software; or

3.1.7 Allow use of the Software by third parties not included in the definition of Users.	
       	
4.	UPDATES.

4.1 Subject to the terms and conditions of this Agreement, Six Apart will make available to the End User all "Updates" to the Software released by Six Apart while the Agreement remains in effect.  For the purposes of this Agreement, "Update" means a release of the Software which adds minor functionality enhancements to the current version.  This class of release is identified by the change of the version number to the right of the decimal point, i.e. X.1 to X.2.

4.2 This Agreement does not entitle the End User to any "Upgrades" to the Software.  For the purposes of this Agreement, "Upgrade" means a major release of the Software which incorporates a major new feature or enhancement that changes the core functionality of the Software. This class of release is identified by the change of the version number to the left of the decimal point, i.e. 4.X to 5.X.  The assignment of a release of the Software to the category of "Update" or "Upgrade" will be at the sole discretion of Six Apart.

5.	TERM AND TERMINATION.

5.1 The term of this Agreement begins on the Effective Date and, unless terminated earlier in accordance with the specific terms of this Agreement, continues in perpetuity.

5.2	Six Apart may terminate this Agreement if the End User breaches any provision of this Agreement and such breach is not cured within fifteen (15) days after written or email notice to the End User.  Upon such termination by Six Apart, the License Grant to the End User included in this Agreement will terminate and the End User will immediately uninstall and cease all use of the Software.

5.3	Sections 6 - 11, inclusive, will survive any termination or expiration of this Agreement.

6.	WARRANTIES AND REMEDIES; DISCLAIMERS.

6.1 Six Apart warrants that the Software does not contain any instructions intentionally designed to modify, damage, destroy, record or transmit information within a computer, computer system or computer network without the intent or permission of the owner of the information.  This warranty does not apply to any "open source" code included in or incorporated into the Software.  During the term of this Agreement, if any portion of the Software (other than "open source" code) is found to be in violation of this warranty, Six Apart will, at its sole expense, make reasonable commercial efforts to modify or replace the Software so that it complies with this warranty, without any material loss of the Software's functionality, and the End User will permit Six Apart a commercially reasonable amount of time to effect such modification or replacement prior to pursuing any other remedy for breach of this warranty.

6.2 Six Apart warrants that the Software does not infringe any intellectual property rights of any third party.  This warranty does not apply to any "open source" code included in or incorporated into the Software.  During the term of this Agreement, if any portion of the Software (other than "open source" code) is found to be in violation of this warranty, Six Apart will, at its sole expense, make reasonable commercial efforts to modify or replace the Software so that it complies with this warranty, without any material loss of the Software's functionality, or to obtain the right for the End User to continue to use the Software consistent with this Agreement and the End User will permit Six Apart a commercially reasonable amount of time to effect such modification or replacement or obtain such right prior to pursuing any other remedy for breach of this warranty.

6.3 EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, SIX APART MAKES NO REPRESENTATION OR WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER.  EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, SIX APART'S PRODUCTS AND SERVICES ARE PROVIDED "AS-IS" AND SIX APART DISCLAIMS ANY REPRESENTATION THAT ITS PRODUCTS OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT PRODUCTS OR SERVICES PROVIDED BY THIRD PARTIES WILL BE UNINTERRUPTED OR ERROR FREE.  EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, THE END USER ASSUMES ALL RISK ASSOCIATED WITH THE QUALITY, PERFORMANCE, INSTALLATION AND USE OF THE SOFTWARE AND DOCUMENTATION INCLUDING, BUT NOT LIMITED TO, THE RISKS OF PROGRAM ERRORS, DAMAGE TO EQUIPMENT, LOSS OF DATA OR SOFTWARE PROGRAMS, OR UNAVAILABILITY OR INTERRUPTION OF OPERATIONS.  EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, THE END USER IS SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF USE OF THE SOFTWARE AND ASSUMES ALL RISKS ASSOCIATED WITH ITS USE.

7.	INDEMNIFICATION.  The End User will indemnify, defend and otherwise hold harmless Six Apart, its officers, directors, employees, agents and subsidiaries from and against any claim or suit brought against Six Apart relating to, or resulting from the End User's use of the Software.  Six Apart will promptly notify the End User of any and all such claims and will reasonably cooperate with the End User with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts Six Apart in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement shall require Six Apart's written consent (to be granted or withheld at Six Apart's sole discretion) and Six Apart may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.

8.	LIMITATION OF LIABILITY.  EXCEPT IN CONNECTION WITH THE BREACH ANY OF THE PROVISIONS LISTED IN SECTION 3, "RESTRICTIONS", ABOVE, OR THE INDEMNIFICATION OF THIRD PARTY CLAIMS, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO THE PARTIES TO THIS AGREEMENT.  IN NO EVENT WILL SIX APART'S TOTAL CUMULATIVE LIABILITIES EXCEED ONE HUNDRED DOLLARS ($100).

9.	DISPUTE RESOLUTION.  All disputes between the parties arising from or concerning in any manner the subject matter of this Agreement will be resolved through binding arbitration by a single arbitrator pursuant to the American Arbitration Association's rules applicable to commercial disputes.  The arbitration will be held in San Francisco, California.

10.	GENERAL.

10.1 This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to conflict of laws principles.  This Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act, even if that law is adopted in California.  If the End User is outside of the United States, the parties agree that rights and obligations of the parties under this Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods.

10.2 If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement will remain in full force and effect.

10.3 The manufacture and sale of the Software is subject to the export control laws of the United States of America, including the U.S. Bureau of Industry and Security regulations, as amended, and hereby agree to obey any and all such laws.

10.4 Failure by a party to enforce any term of this Agreement shall not be deemed a waiver of future enforcement of that or any other term in this Agreement or any other agreement that may be in place between the parties.

10.5 The End User may not assign this Agreement, and any assignment of this Agreement by the End User will be null and void.

10.6 The parties are independent contractors.  Neither party will be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other.

10.7 This Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.

10.8 Neither party will be liable for any failure or delay in its performance under this Agreement, except the making of payments, due to causes, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, strikes, riot, war, sabotage, failure of suppliers and governmental action, which are beyond its reasonable control.

10.9 The section titles and numbering of this Agreement are displayed for convenience and have no legal effect.

10.10 This Agreement may be executed in counterparts, each of which shall be deemed an original and all such counterparts shall constitute one and the same agreement.

10.11 This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter.  This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.

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