Mercantec, Inc. SoftCart Start-Up 5.0 End User License Agreement
REDISTRIBUTION OR RENTAL OF THIS PRODUCT IS STRICTLY PROHIBITED
IMPORTANT - READ THE FOLLOWING AGREEMENT CAREFULLY. This End User License Agreement ("EULA") is a legal agreement between you ("You"/"Your", either an individual or single entity) and Mercantec, Inc. ("Mercantec") which sets forth the terms, which Mercantec grants, for use of the software product identified as SoftCart, including without limitation software components, media, printed material and printed, "online", and electronic documentation ("Software").
By selecting "I AGREE" at the end of this EULA and by using the Software, (by installation, copying or otherwise accessing the Software), You are taking affirmative action to signify that You are entering into a legal agreement and agree to be bound by the terms of the EULA as set forth below including those additional terms and conditions as may be stipulated in any accompanying documentation. If You DO NOT AGREE to be bound by the below terms, select "I DISAGREE" at the end of this EULA, and do not install or use the Software. If You select "I DISAGREE", You will not be able to access, use, install a copy of, or otherwise activate any part of the Software until such time as you select "I AGREE". You may return the entire package to place of purchase for a full refund, less any applicable and previously paid shipping and handling charges.
1. SOFTWARE PRODUCT LICENSE
1.1 License to Use. Mercantec grants You a revocable, non-exclusive and non-transferable End User License ("E. U. License") for the use of the Software by You for the sole purpose of developing a single electronic "on-line" marketplace and consisting of one (1) SoftCart master configuration file (*.cfg) designed to run as one single Internet or Intranet World Wide Web (WWW) storefront on an Internet or WWW server and platform ("Merchant Store"). Each SoftCart master configuration file (*.cfg) will constitute a separate Merchant Store. Providing more than one Merchant Store requires the acquisition of one additional E. U. License for each Merchant Store. This EULA and the E. U. License governs any releases, revisions or enhancements to the Software, which Mercantec may furnish to You. You agree that You are expressly prohibited from using the Software for an entity other than yourself. To the extent the Software may include or incorporate any other third party's licensed software ("Third Party Software"), You agree to be bound to such terms and conditions (which are no less restrictive than this EULA) that may be imposed by such third party in connection with its Third Party Software.
1.2 Status. You expressly acknowledge that your status under this EULA shall for all purposes be that of an independent contractor, and not that of an agent, partner, joint venturer or employee of Mercantec, including without limitation payment obligations for all taxes, impositions, customs duties, export-import charges, value-added taxes or other duties, charges or assessments which any state, country, municipality or other governmental authority may impose on the Software or otherwise in connection with services, licensed, rendered or delivered under this EULA. You have the sole responsibility to pay all the aforesaid taxes or duties which any governmental authority may assess.
1.3 Limited Warranty. Mercantec warrants that the Software will perform substantially in accordance with the associated user documentation for a period of thirty (30) days from the date of shipment or download of the Software ("Warranty Period"). THE EXPRESS WARRANTY SET FORTH HEREIN CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE SOFTWARE. MERCANTEC AND ITS SUPPLIERS DO NOT MAKE, AND HEREBY DISCLAIM AND EXCLUDE, AND YOU EXPRESSLY WAIVE ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN OR ARISING BY TRADE USAGE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO EXPRESS OR IMPLIED WARRANTIES: OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; THAT ANY SOFTWARE WILL OPERATE ERROR FREE; THAT THE SOFTWARE WILL BE NON-INFRINGING OF THIRD PARTIES' RIGHTS; THAT ANY PERCEIVED DEFECTS IN SOFTWARE WILL BE CORRECTED; OR THAT USE OF SOFTWARE WILL NOT BE INTERRUPTED DUE TO DEFECT OR THE FAULT OF ANY PERSON OR ENTITY. THE SECURITY MECHANISMS IMPLEMENTED BY THE SOFTWARE HAVE INHERENT LIMITATIONS, AND YOU MUST DETERMINE THAT THE SOFTWARE SUFFICIENTLY MEETS YOUR REQUIREMENTS. MERCANTEC AND ITS SUPPLIERS SHALL HAVE NO OBLIGATIONS UNDER THE WARRANTY PROVISIONS SET FORTH HEREIN IF YOU SUBJECT THE MEDIA TO ACCIDENT OR ABUSE; ALTER, MODIFY OR MISUSE THE SOFTWARE; USE THE SOFTWARE INCORPORATED, ATTACHED OR IN COMBINATION WITH NON-MERCANTEC SOFTWARE OR ON ANY COMPUTER SYSTEM OTHER THAN THAT FOR WHICH THE SOFTWARE IS INTENDED; OR YOU VIOLATE THE TERMS OF THIS EULA. THE EXTENT OF MERCANTEC'S DUTY UNDER THIS LIMITED WARRANTY SHALL BE THE CORRECTION OR REPLACEMENT OF ANY COPY OF THE SOFTWARE, WHICH FAILS TO MEET THIS WARRANTY. IN THE EVENT OF A BREACH OF THIS WARRANTY, AND IF YOU PROVIDE MERCANTEC WITH A WRITTEN REPORT DURING THE WARRANTY PERIOD, MERCANTEC WILL USE REASONABLE EFFORTS TO CORRECT THE ERRORS OR FAILURES PROMPTLY OR REPLACE THE SOFTWARE PROMPTLY, AT NO CHARGE TO YOU. THIS IS YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTIES HEREUNDER.
1.4 Injunctive and Other Relief. You acknowledge that if You breach any obligations under this EULA, You shall cause damages of an irreparable and continuing nature to Mercantec, for which money damages will not provide adequate relief. Therefore, in addition to any money damages to which Mercantec is entitled, Mercantec also is entitled to an injunction (including but not limited to a temporary restraining order) to prohibit Your continuing breach of the applicable covenant or otherwise to compel Your specific performance under this EULA. Mercantec shall have the right to obtain such injunctive relief without having to prove any damages or post any bond. If You are legally compelled to disclose any of Mercantec's Trade Secrets, then, prior to such disclosure, You will (i) assert the privileged and confidential nature of the Trade Secrets and (ii) cooperate fully with the Mercantec in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Trade Secrets.
2. PROPRIETARY INFORMATION
2.1 Restrictions: The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties and contains Trade Secrets exclusive to Mercantec and/or its licensors. All right, interest, title to, and ownership and intellectual property rights in, the Software and all copies remain with Mercantec and/or its licensors. You may not utilize the Software to operate an Internet Mall (containing more than one (1) single WWW storefront or a service bureau). You are expressly prohibited from utilizing the Software for any purpose not permitted in this EULA, including copying the Software, other than to make a single copy of the Software in machine-readable format for back-up or archival purposes. You are permitted to make copies of any associated documentation for Your internal use only. You shall ensure that all proprietary rights notices of the Software are reproduced and applied to any copies. You may not modify, decompile, disassemble, decrypt, extract, or otherwise reverse engineer the Software, or create derivative works based upon all or part of the Software. You may not distribute copies of the Software to third parties. You may not transfer, lease, assign, alienate, sell, distribute and make available for timesharing, or sublicense, in whole or in part, the Software. No right, title or interest to any trademarks, service marks or trade names of Mercantec or its licensors is granted by this EULA. You must comply with all applicable laws regarding the use of the Software. Any copy shall contain all notices regarding proprietary rights as contained in the Software originally delivered by Mercantec. Mercantec reserves all rights not expressly granted.
2.2 Limitation of Liability and Remedies. IN NO EVENT WILL MERCANTEC OR ITS AUTHORIZED REPRESENTATIVES BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY LOSS OF PROFITS OR REVENUES, LOST SAVINGS, OR OTHER SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR PECUNIARY LOSS ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE PRODUCT, EVEN IF MERCANTEC OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, MERCANTEC AND ITS AUTHORIZED REPRESENTATIVES ARE NOT LIABLE FOR ANY SUCH CLAIM BY ANY OTHER PARTY. IN NO EVENT WILL MERCANTEC OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY AMOUNTS IN THE AGGREGATE IN EXCESS OF THE LICENSE FEES RECEIVED BY MERCANTEC FROM YOU HEREUNDER FOR THE SOFTWARE GIVING RISE TO SUCH DAMAGES, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR INVALIDITY OF THE FIRST SENTENCE OF THIS SECTION. THE EXTENT OF MERCANTEC'S LIABILITY FOR THE LIMITED WARRANTY SECTION SHALL BE AS SET FORTH IN SECTION 1.3 ABOVE.
2.3 Export Assurances and Warranties. Notwithstanding any contrary provision of this Agreement, and regardless of any disclosure end user may make to Mercantec of any ultimate destination for the Software Products, End User shall not: (i) resell, transfer assign, export or re-export any Software or any technical data derived therefrom, authorized for export under this Agreement without the express written authorization of the United States Government; and (ii) use the Software for any purpose other than protecting on-line merchant to customer and customer to on-line merchant communications and/or transactions (no customer to customer usage is authorized). Neither the Software nor any of the underlying information or related technology may be downloaded, exported or re-exported: (i) into (or to a national, resident, or Specially Designated National of) Cuba, North Korea, Iran, Iraq, Libya, Sudan, Syria, Yugoslavia (Serbia and Montenegro), and the Taliban of Afghanistan, or (ii) to any Specially Designated Terrorist or Specially Designated Narcotics Trafficker ("Embargoed Countries and Entities"), or (iii) to Pakistan and India ("Restricted Countries"). End user warrants and represents that (i) neither the U.S. Bureau of Export Administration ("BXA") nor any other U.S. Governmental agency has suspended, revoked or denied its export privileges; and (ii) it will comply with all terms and conditions associated with the Encryption Licensing Arrangement issued to Mercantec through the BXA as follows:
1.) Exports of the Software are limited to (i) organizations that provide web hosting services, or (ii) organizations that self-host. 2.) Exports of the client Software are limited to (i) on-line merchants defined as an entity regularly engaged in lawful commerce that uses means of electronic communications (e.g. the Internet) to conduct commercial transactions or (ii) Web designers hired by online merchants to design and manage the online merchants Web site. 3.) The exported commodity may only be used for protecting on-line merchant to customer and customer to on-line merchant communications/transactions. No customer to customer usage is authorized. 4.) Public/private key pairs and associated session keys created by this Software may only be used with the Mercantec SoftCart application, or with authorized OEM and Private Label products. 5.) Exports of this Software (both the client and server portions) are authorized to any destination except: Cuba, North Korea, Iran, Iraq, Libya, Sudan, Syria, Yugoslavia (Serbia and Montenegro), Afghanistan, India and Pakistan. Individual export license applictions identifying specific end-users may be considered by the United States Government for India, Pakistan, and non-Taliban entities or regiions of Afghanistan. The Embargoed and Restricted Countries are subject to change from time-to-time, and current lists may be obtained by contacting Mercantec. 6.) No exports are authorized to any foreign merchants or separate business units that sell items and services on the United States Munitions List. The United States Munitions List items may be found by accessing the Web site of the United States Department of State, Office of Defense Trade Controls at www.pmdtc.org/Part121.pdf. 8.) The Software is not authorized for use in prohibited nuclear, chemical/biological or missle weapons activities.
Notwithstanding any contrary provision of this Agreement, and regardless of any disclosure Distributor may make to Company of any ultimate destination for the Software, Distributor shall not: (i) resell, transfer assign, export or re-export any Software or any technical data derived therefrom, authorized for export under this Agreement without the express written authorization of the United States Government; and (ii) use the Software for any purpose other than protecting on-line merchant to customer and customer to on-line merchant communications and/or transactions (no customer to customer usage is authorized).
2.4 U.S. Government Restricted Rights. The Software is provided with "RESTRICTED RIGHTS". Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause [OCT. 1988] at DFARS 252.227-7013 or subparagraphs (a) through (d) of the Commercial Computer Software – Restricted Rights clause [JUNE 1987] at FAR 52.227-19, as applicable. Manufacturer is Mercantec Incorporated, 1555 Bond Street, Suite 103, Naperville, IL 60563-0138.
2.5 Termination. Mercantec shall have the right, in its complete and sole discretion, to terminate the EULA if you fail to comply with the terms and conditions of the EULA and as such, breach this EULA. Upon any termination, You shall discontinue use of the Software and agree to promptly (and in no event in more than five (5) days) return to Mercantec all copies of the object code and documentation for the Software in the form provided by Mercantec or as modified by an approved developer. Termination under this paragraph shall not relieve You or any applicable developer of its obligations regarding confidentiality of the Software or Trade Secrets or any obligations to pay Mercantec for any amounts due as of the date of termination. Termination of the E. U. License shall be in addition to and not in lieu of any equitable remedies available to Mercantec.
2.6 Notices. All notices which concern this Agreement shall be given in writing, as follows: (i) by actual delivery of the notice into the hands of the party entitled to receive it , in which case such notice shall be deemed given on the date of delivery; (ii) by mailing such notice by registered or certified mail, return receipt requested, in which case such notice shall be deemed given five (5) days from the date of its mailing; (iii) by Federal Express, UPS, DHL or any other overnight carrier, in which case such notice shall be deemed given two (2) days from the date of its transmission; or (iv) by Facsimile or telecopy, in which case such notice shall be deemed given on the date it is sent, to the parties herein at 1555 Bond Street, Suite 103, Naperville, Illinois 60563-0138, Attention Contracts Administration, and at Your address as contained in Mercantec's records, in the case of You. Any party to this Agreement may change its address for notice purposes, by providing written notice of the change of address to each of the other parties.
2.7 Miscellaneous: This EULA is made under the laws of the State of Illinois, USA, without regard to its conflicts of law principles. This EULA is the entire agreement between You and Mercantec relating to the Software and: (i) supercedes all prior contemporaneous oral or written communications, proposals, and representations with respect to its subject matter; and (ii) prevails over any conflicting or additional terms of any quote, order, acknowledgment, or similar communication between the parties during the term of this EULA. If any provision of this EULA is held invalid, all other provisions shall remain valid, unless such validity would frustrate the purpose of this EULA, and this EULA shall be enforced to the full extent allowable under applicable law. No modification to this EULA is binding, unless in writing and signed by a duly authorized signatory of each party. Any Software obtained by You after obtaining the Software which is subject to this EULA shall be subject to all of the terms of this EULA. All of Mercantec's licensors are direct and intended third-party beneficiaries of this EULA and may enforce it against You. Nothing herein shall be construed to limit Mercantec's rights to assign this EULA to a third party.
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