This Movable Type License Agreement (hereinafter referred to as this "Agreement") is made and entered into by and between an individual, corporation, entity or organization (hereinafter referred to as the "Client") that uses Movable Type 5.x (hereinafter referred to as the "Software") and Six Apart, Ltd. (hereinafter referred to as "Six Apart"). The Client shall not download, install or use the Software unless it agrees to this Agreement. The Client shall be deemed to have agreed to this Agreement upon its download, installation or use of the Software.
Article 1. Definitions
In this Agreement, the following terms shall have the meanings specified below:
"User" means an individual who has been assigned his/her own login name generated by the Software through the function of the Software to "add/edit blog authors." Any person using invalidated login name shall not be counted as a User. Further, it is prohibited to share a login name of any individual among more than one person.
"Commenter" means a User entitled only to post comments on the Software. The number of Commenters shall not be included in the number of Users.
"Server" means a computer installed with Movable Type, or a group of computers consisting of a computer installed with Movable Type and a computer or computers used for publishing web pages and a computer or computers used as database server.
"Update" of a product means a minor functional improvement over, or a bug fixing in, the current version. Release of an Update may be confirmed by a change of the figure after the decimal point of the version number. For example, a change from X.1 to X.2 represents an Update.
"Upgrade" means a major-scale release of a product with introduction of a new function or improvement in the key functionality of the Software. Release of an Upgrade may be confirmed by a change of the figure before the decimal point of the version number. For example, a change from 4.X to 5.X represents an Upgrade.
Designation of either the "Update" or the "Upgrade" shall be made by Six Apart.
Article 2. Use of Software
Pursuant to the provisions of this Agreement, the Client shall be granted a license to use, on a non-exclusive, non-transferable and non-sublicensable basis, the Software for the purpose of the Client's own use (if the Client is a corporation, entity or organization, use of the Software by an individual belonging to the Client or any similar individuals designated by the Client from among individuals within the scope permitted by Six Apart in accordance with the License Policy, as the use of the Software by the Client pursuant to this Agreement), and, if the Client operates a community, for the purpose of use within the community by participants therein. Except as specified in this Agreement, the Client may not provide any third party the whole or part of functions of the Software, nor may the Client receive from any third party a consideration for the use of the Software, no matter what the purpose of use is. Six Apart shall be entitled to determine whether the use by the Client is pursuant to this Agreement or not. Six Apart shall retain all rights pertaining to the Software (including all intellectual property rights), as well as all rights pertaining to the Software which are not specifically licensed under this Agreement. The use of the Software shall be limited to the number of Users and the number of Servers set forth in this Agreement. The number of the Commenters shall not be limited.
Article 3. Production of Duplicates
The Client may duplicate the Software in any readable forms, in the minimum number necessary only for the backup purpose; provided, however, that, such duplication of the Software shall be made in the same form as the original and with an indication of the authorized person. For the avoidance of doubt, any rights to the Software not specifically licensed hereunder shall be reserved by Six Apart.
Article 4. Technical Support, Update and Upgrade
(1) Technical supports for the Software shall be provided by a partner company of Six Apart for value. The Client shall enter into a separate agreement with such partner company of Six Apart on an individual basis concerning the contents of technical supports.
(2) For two (2) years after the purchase of license for the Software and any period to be separately designated by Six Apart thereafter, the Client shall be entitled to receive an Update to the latest version for free.
(3) If the Software is provided as an Update or Upgrade, the Client may use either the previous version or the current version and shall not use both versions concurrently; provided, however, that, if the Client chooses to use the previous version despite the Upgrade of the Software, the Client shall acknowledge that the Update set forth in the preceding Paragraph concerning such previous version may be terminated at the discretion of Six Apart.
Article 5. Compliance
The Client shall understand and acknowledge that it may use the Software only in compliance with all applicable laws. In addition, the Client shall use the Software in accordance with laws and other regulations relating to privacy and intellectual property rights. The Client shall cause any User to adhere to the conditions of this Agreement and acknowledge that any violation of this Agreement by such User shall be deemed as a violation by the Client.
Article 6. Prohibited Matters
The Client shall be prohibited to commit the acts specified in each Item below:
(1) To distribute any software derived from the Software (provided, however, that, distribution of plug-ins and other add-ins written by using API and any other programming interfaces published by Six Apart shall be permitted);
(2) To duplicate the Software otherwise than set out in this Agreement;
(3) To perform reverse engineering, decompiling or disassembling concerning the Software, or otherwise try to restructure or clarify source code or algorithm for the Software;
(4) To make available the Software, whole or part, or any duplicate thereof, to any third party in the form of sale, assignment, grant of a license, disclosure, distribution to such third party or otherwise;
(5) To use the Software for the purpose of providing hosting services to any other party or providing services to any other individual, corporation, entity or organization which renders, as business, services relating to the Internet or systems, etc., with or without consideration;
(6) To delete or modify any display authority or trademark on the Software.
Article 7. Protection of Personal Information and Privacy
Article 8. Guarantee by Six Apart
Six Apart hereby guarantees that no order is included in the Software which has been designed intentionally to alter, lose, destroy, record or transmit any information in computer, computer system or computer network, without intent or permission of the manager of the relevant information. This guarantee shall not apply to open source codes included in the Software, if any. If, during the term of this Agreement, any object which violates the guarantee hereunder, other than the open source codes, is found to be included in the Software, Six Apart shall make any reasonable commercial efforts to alter or replace the Software, at the cost of Six Apart, so that the Software may comply with the guarantee set out herein, without prejudice to any primary function of the Software, as the only legally available relief. The Client may not pursue any other legal relief in connection with the violation of guarantee set out in this Article.
Article 9. Limitation on Guarantee relating to Function of Software
(1) The Software shall be furnished on as-is basis and shall not provide any security or guarantee whether express or implied. Six Apart shall not provide security or guarantee of any kind whatsoever, whether express or implied, including, but not limited to, an implied security or guarantee concerning the merchantability and suitability to any specific objectives.
(2) Any and all risks pertaining to the quality and performance of the Software, program errors in the installation and use, damage to devices, loss of data and software programs, nonperformance or suspension or otherwise shall be borne by the Client. The Client shall determine the suitability of use of the Software at its own responsibility, and bear any and all risks pertaining to such use.
Article 10. Termination
(1) If the Client violates any provision of this Agreement, Six Apart may terminate this Agreement without giving notice.
(2) Upon the termination of this Agreement, licenses and technical supports having been granted to the Client shall all be terminated and the Client shall immediately uninstall and suspend any use of the Software, and, if instructed by Six Apart, shall delete or destroy any duplicates of the Software. In such cases, considerations having been paid for the Software and technical supports shall not be refunded for any reason whatsoever. Provisions relating to "Limitation on Guarantee relating to Function of Software," "Indemnification," "Limitation on Liability" and "General Provisions" shall survive the termination of this Agreement.
Article 11. Indemnification
The Client hereby agrees to indemnify Six Apart, any of its officers, employees, agencies, subsidiaries, affiliates and other partners for liabilities for any direct, indirect, contingent, exceptional, consequential or punitive damage arising from the Client's use of, or otherwise in connection with, the Software.
Article 12. Limitation on Liability
(1) The Client specifically understands and acknowledges that, Six Apart shall not assume liabilities for any direct, indirect, contingent, exceptional, consequential or punitive damage, including, but not limited to, those resulting from loss of profits, loss of credibility, nonperformance, unavailability of data or other causes, as well as any other unrecognized damage, not only where Six Apart has notified the possibility of such damage in advance, but in all other cases.
(2) The amount of accumulated damages payable by Six Apart to the Client shall be up to the amount of fees paid by the Client to Six Apart during the latest twelve (12) months, not only where the court of competent jurisdiction rejected the limitation on liability for any contingent or indirect damage and the limitation referred to in Paragraph 1 does not apply to the Client, but in all other cases.
Article 13. General Provisions
(1) This Agreement shall be governed by and construed in accordance with the laws of Japan. This Agreement shall constitute an entire agreement between the Client and Six Apart, and the Client shall use the Software in accordance with the provisions of this Agreement. This Agreement shall supersede any and all agreements prior to the execution of this Agreement.
(2) All disputes arising from or in connection with this Agreement shall be submitted to the exclusive agreed jurisdiction of the Tokyo District Court, for the first instance.
(3) If any provision of this Agreement is determined by the competent court to conflict with any law, then such provision shall be modified or construed, to the maximum extent permitted by law, so that the expected objectives may be fulfilled, and any other provision of this Agreement shall remain full force and effect.
(4) The Software shall be the "commercial item" defined in the United States 48 C.F.R. 2.101, and is comprised of the "commercial computer software" and the "commercial computer software documentation" used in the United States 48 C.F.R. 12.212. Provisions of the United States 48 C.F.R. 12.212 and from C.F.R. 227.7202-1 through 27.7202-4 shall apply concurrently and any and all United States end users shall obtain the Software within the extent of the rights stipulated in the said provisions.
(5) Both parties acknowledge that the manufacturing and sale of the Software shall comply with the export control-related laws and regulations of Japan and the United States, and agree to comply with all such laws.
(6) The Client may not assign, transfer, pledge or otherwise dispose of its contractual status or rights or obligations under this Agreement without prior written consent of Six Apart, and any assignment, transfer, pledge or other disposition contradicting the above shall be invalid.
(7) Movable Type, logo of Movable Type, and other logos and names of Movable Type, Six Apart, logo of Six Apart and other logos and names of Six Apart shall be the trademarks of Six Apart. The Client hereby agrees that it shall not indicate or use such trademarks in any manner whatsoever without prior written consent of Six Apart.
(8) To the extent not significantly prejudice the benefit of the Client, the Client shall acknowledge that Six Apart may amend or modify this Agreement without consent of the Client.
(9) Titles and numbers of Articles, Paragraphs and Items of this Agreement shall be for convenience purposes only, and they shall not have any legal effects.