READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE.

BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AND YOUR COMPANY (COLLECTIVELY, "YOU") ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS LICENSE AGREEMENT AND AUTHOR'S PUBLISHED: (a) BILLING POLICY AND PROCEDURES, (b) REFUND POLICY, AND (c) ACCEPTABLE USE POLICY.

IF YOU OR YOUR COMPANY ARE NOT WILLING TO BE BOUND BY THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE.

VARIOUS COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY RIGHTS PROTECT THE SOFTWARE. THIS AGREEMENT IS A LICENSE AGREEMENT THAT GIVES YOU LIMITED RIGHTS TO USE THE SOFTWARE AND NOT AN AGREEMENT FOR SALE OR FOR TRANSFER OF TITLE. AUTHOR RESERVES ALL RIGHTS NOT EXPRESSLY GRANTED BY THIS AGREEMENT.

1. DEFINITIONS.

1.1 "Customer Site" means an Internet website ("web site") and/or online store ("store") that Customer hosts on Author's Server network.

1.2 "Customer" means the person(s), company, or organization who is using the Software for an online electronic commerce ("e-commerce") store and/or website.

1.3 "Derivative Work" means any modification, enhancement or adaptation of the Software, any other form into which a preexisting work may be recast, transformed or adapted or any compilation incorporating the Software that would constitute a copyright infringement if made without Author's authorization.

1.4 "Documentation" means all materials in written, computer readable or other form containing information about the Software that Author may deliver or make available to Customer during the Term of this Agreement, including without limitation any specifications for the Software, Author's on-line help pages and any other user manuals or instructions explaining the installation, operation and use of the Software.

1.5 "Servers" means the network of computer hardware and software systems, except for any network routing and communication devices or mediums, that is used to host, store and serve Internet web pages, text, images, files, programs, databases, scripts and other web site content, provide public and private access to any such web site content, provide file transfer access and transfer of any such web site content and facilitate the transmission of email messages.

1.6 "Skin" means a template that controls the appearance and layout of the e-commerce store created by the Software.

1.7 "Software" means all website and store hosting related services, email, computer programs, Documentation, Skins, web pages, text, and images that Author may deliver to Customer in accordance with the limited warranty set forth in Section 4.2 of this Agreement.

1.8 "System Requirements" means the specific computer hardware and software requirements that the Author specifies, by publication on Author's website, for the Software.

1.9 "Term" means the duration of this Agreement specified in Section 8.

2. LICENSE AND AUTHOR INFORMATION.

2.1 License. On the terms and conditions of this Agreement, Bitwise Software International, Inc. ("Author" or "Bitwise") grants Customer, and Customer accepts, a personal, nontransferable, nonexclusive license throughout the Term (a) to install and/or use a copy of the Software for each Customer Site that Customer hosts on its Servers or hosts on Author's Servers; (b) to modify the Skins and create Derivative Works, and (c) to use the Documentation in connection with Customer's use of the Software.

2.2 Bitwise Software International, Inc., an Arizona Corporation, is the Copyright Owner and Author of Software.

3. PROPRIETARY RIGHTS AND RESTRICTIONS.

3.1 Ownership. Customer acknowledges that the Software, the Documentation, Skins, all Derivative Works, whether created by Author or Customer, and all copyrights, patents, trade secrets, trademarks and other intellectual property rights protecting or pertaining to any aspect of the Software, the Documentation or any such Derivative Work are and shall remain the sole and exclusive property of Author and, where applicable, Author's suppliers. This Agreement does not convey title or ownership to Customer but instead gives Customer only the limited rights set forth in Section 2.1.

3.2 Limited Rights. Except as expressly set forth in this Agreement, Customer has no right to use, make, sublicense, modify, transfer or copy either the original or any copies of the Software or the Documentation or to permit anyone else to do so. Customer may use the Software only on Servers under Customer's control or on Servers hosted or provided by Author, and may not allow any third party to use or have access to the Software.

3.3 Proprietary Notices. Customer shall reproduce and include in all copies of the Software and Documentation all of Author's copyright, tradename, and trademark notices and proprietary legends, if any, that may appear in the Software and Documentation as they are furnished by Author.

3.4 Skins. Customer acknowledges that each copy of the Software includes a pre-designed set of Skins, which Customer may use in accordance with this Agreement.

3.5 Confidentiality. Customer acknowledges that the Software and the Skins contain valuable trade secrets and proprietary information belonging to Author. Customer shall keep confidential and protect from unauthorized disclosure the Software and all Skins and all information that Author expressly designates as confidential or that Customer reasonably should understand to be confidential or proprietary. Without limiting the foregoing, Customer shall (a) take reasonable security precautions with respect to the information described in this Section 3.5 that are at least as great as the precautions Customer takes to protect its own confidential information; (b) disclose the information described in this Section 3.5 only to Customer's employees or consultants on a need-to-know basis; and (c) require its employees or consultants to execute appropriate written agreements sufficient to enable Customer to comply with its confidentiality obligations under this Section 3.5.

3.7 Remedies. Customer acknowledges that money damages may not be an adequate remedy for any breach or violation of any requirement set forth in this Section 3 and that any such breach or violation may leave Author without an adequate remedy at law. Customer therefore agrees that in addition to any other remedies available at law, in equity or under this Agreement, Author shall be entitled to obtain injunctive relief from a court of competent jurisdiction to restrain any such breach or violation.

4. LIMITED WARRANTIES.

4.1 Right to Grant License. Author warrants that it owns or has the contractual right to license the Software to Customer in accordance with this Agreement. As Author's sole liability and Customer's sole remedy respecting any actual or threatened breach of the limited warranty set forth in this Section 4.1, Author will at its option (a) procure at its expense the right to use the Software in accordance with this Agreement; or (b) replace any part of the Software that breaches the warranty with software of comparable functionality that does not breach the warranty.

4.2 Performance. Author warrants to Customer that, throughout the term, the Software will perform in substantial compliance with Author's specifications for the Software when used with computer equipment and software that satisfy the Author's System Requirements, as published on Author's website, in all respects. Author's warranty is conditioned upon Customer's use of the Software in accordance with the Documentation and other instructions provided by Author and does not extend to any alterations or modifications to the Software, Skins, or Derivative Works created by anyone other than Author, any use of the Software not in accordance with the Documentation or Author's instructions or any failure resulting from any accident, abuse or misapplication, any power failures, any use of computer equipment neither provided nor recommended by Author, any use of the Software with computer equipment and software that does not satisfy the Author's published System Requirements in all respects or Customer's negligence or willful misconduct. As Author's sole liability and Customer's sole remedy respecting the Software's nonconformance with the limited warranty set forth in this Section 4.2, Author may at its option use reasonable efforts to correct the Software to make them conform with Author's specifications for the Software.

5. MAINTENANCE AND SUPPORT.

5.1 Customer's Obligations. Customer will provide its customers as well as its employees or contractors with all necessary maintenance, training and support regarding the installation, setup, maintenance and use of the Software and will respond with reasonable diligence, in accordance with Customer's customary customer support policies and practices, to all requests for assistance by Customer's customers, employees, and contractors. Under no circumstances, will Customer allow any of its customers or any third party to gain access to the Author's Software, Master Installation File, Skin source files, Documentation, or software patches thereto which are provided to Customer under this agreement.

5.2 Author's Obligations. Author will respond with reasonable diligence to any requests for assistance that Customer may make. Author may charge Customer a fee(s), at Author's sole discretion, for any such assistance. Under no circumstances will Author have any obligation to provide any kind of customer support to Customer in connection with any Derivative Works, any computer equipment, or any computer programs other than the Software and its proper use.

5.3 New Releases. Author may release, at Author's sole discretion, new versions of Software during the Term of this Agreement. Author may charge Customer a fee(s), at Author's sole discretion, for any such new version or release.

6. CUSTOMER'S OBLIGATIONS.

6.1 System Requirements. When Customer is installing and/or hosting Software on Server(s) NOT provided by Author, Customer will, at its expense, obtain and maintain all computer equipment and the right to use all computer programs necessary to meet the Author's published System Requirements. When Software is installed on Server(s) NOT provided by Author, Customer is solely responsible for Software installation and any needed Server configuration and/or administration.

6.2 Security and Backups. Customer is solely responsible for generating and maintaining all needed backup files for Software and for the Customer's store data and its contents. Customer is solely responsible for the security and safekeeping of Customer's store data, and the security of any Server(s) NOT provided by Author.

6.3 Under no circumstances, will Customer allow any of its customers or any third party to gain access to the Master Installation File, Skin source files, Documentation or software patches thereto which are provided to Customer under this agreement.

6.4 Unsolicited Email, Junk Email, and/or Bulk Sending of Email ("SPAM"). Author has a strict NO TOLERANCE SPAM POLICY. If Customer engages in or otherwises allows SPAM to be sent on Customer's behalf, regardless of what server/computer sends it out, Author may, at Author's sole discretion, immediately terminate Customer's account and hosting services without liability or refund to Customer.

6.5 Adult Content. Author does NOT allow the hosting of websites or stores which, at Author's sole discretion, are perceived as being of pornographic or adult nature, based on language, content, photos, and images, including nudity of any form. Author may, at Author's sole discretion, immediately terminate Customer's account and hosting services without liability or refund to Customer.

6.6. Illegal Content. Author does NOT allow the hosting of websites or stores, which, at Author's sole discretion, contains or promotes illegal products or information of any kind. Author may, at Author's sole discretion, immediately terminate Customer's account and hosting services without liability or refund to Customer.

6.7 Unilateral Service Revocation. In the event that Author may at any time believe that the Software is being utilized for unlawful purposes by the Customer or in contravention with the terms and provisions herewith, Author may, at Author's sole discretion, immediately terminate Customer's account and hosting services without liability or refund to Customer. 

7. DISCLAIMER AND DAMAGES LIMITATION.

7.1 Disclaimer. EXCEPT AS SET FORTH IN SECTION 4 OF THIS AGREEMENT, AUTHOR IS PROVIDING THE SOFTWARE, SKINS, AND THE DOCUMENTATION "AS IS." AUTHOR DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SOFTWARE, SKINS, OR THE DOCUMENTATION INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE (WHETHER OR NOT AUTHOR KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE) AND ANY WARRANTIES RESPECTING CONDITIONS OF TITLE OR NONINFRINGEMENT, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING. AUTHOR ALSO EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN CUSTOMER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, AUTHOR DOES NOT WARRANT THAT THE SOFTWARE AND SKINS WILL FUNCTION WITHOUT INTERRUPTION OR BE ERROR FREE, THAT AUTHOR WILL CORRECT ALL DEFICIENCIES, ERRORS, DEFECTS OR NONCONFORMITIES OR THAT THE SOFTWARE AND SKINS WILL MEET CUSTOMER'S SPECIFIC REQUIREMENTS.

7.2 Damages Limitation. AUTHOR'S CUMULATIVE LIABILITY TO CUSTOMER FOR ALL CLAIMS OF ANY NATURE RELATED TO THE SOFTWARE, SKINS, OR DOCUMENTATION OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION IN CONTRACT, TORT OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF THE INITIAL SETUP FEE, EXCLUDING ANY OTHER CHARGES INCLUDING HOSTING, UPGRADES, ADD-ONS, CUSTOM PROGRAMMING OR DESIGN, AND/OR SUPPORT FEES, PAID BY CUSTOMER UNDER THIS AGREEMENT. NEITHER AUTHOR NOR ANY OF ITS SUPPLIERS SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR FOR ANY LOSS OF PROFITS EVEN IF AUTHOR OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

8. TERM AND TERMINATION.

8.1 Term. This Agreement shall take effect as soon as Customer executes it. This Agreement shall remain in effect, without limit, unless terminated in accordance with Section 8.2 or Section 8.3.

8.2 Termination Upon Default. In addition to any other remedies available at law, in equity or under this Agreement, Author may terminate this Agreement: (a) by written notice to Customer if Customer breaches its obligations under Section 3 and then fails to cure the breach within ten days after Author sends Customer a written notice describing the breach in reasonable detail; or (b) by written notice to Customer if Customer breaches any other obligation under this Agreement and then fails to cure the breach within ten days after Author sends Customer a written notice describing the breach in reasonable detail; or c) Customer fails to make full payment to Author for any Software license fees, setup fees, hosting fees, or support fees.

8.3 Customer Termination. Customer may terminate this agreement upon written notice to Author provided such written notice is delivered to Author at least 3 calendar days in advance of Customer's next regularly scheduled billing date. Customer's website and/or store shall be terminated immediately upon receipt of Customer's cancellation request and shall be removed from Author's server network with no further fees charged to Customer.

8.4 Effect of Termination. The expiration or termination of this Agreement will end all parties rights and obligations under this Agreement, the rights and obligations created by this provision and by Section 3 and the disclaimer and damages limitations in Section 7, all of which will survive termination. Customer must immediately end all use of the Software, Skins, and the Documentation when this Agreement expires or terminates. Within five days after this Agreement expires or terminates, Customer will (a) return to Author the original and all copies of all Software, Skins, Documentation and Derivative Works in any form in Customer's possession, custody or control; or (b) upon Author's written request destroy all such copies; and (c) certify to Author in writing that Customer has complied with all requirements set forth in this Section 8.4.

9. MISCELLANEOUS.

9.1 Amendments. This Agreement may be amended from time to time, at Author's sole discretion, and notice to Customer shall occur by publication on Author's website.

9.2 Assignments. Without Author's prior written consent, Customer may not assign its rights or delegate its duties under this Agreement or sublicense or in any way transfer the right to use any Software, Skins, or Documentation in whole or in part, whether voluntarily or by operation of law.

9.3 Attorneys Fees. The prevailing party in any action arising from this Agreement may recover its reasonable attorneys' fees and costs from the losing party.

9.4 Binding Effect. This Agreement shall bind Author and Customer and their respective successors and assigns.

9.5 Entire Agreement. This Agreement represents the complete and exclusive agreement between Author and Customer and supersedes all prior oral or written negotiations, understandings or agreements respecting its subject matter. No prior, present or future course of dealing between the parties, usage of trade or custom of any kind will alter or supplement the terms and conditions of this Agreement. Author reserves the right to change this agreement at any time by posting a new copy of this Agreement on Author's website.

9.6 Governing Law and Forum. The laws of the state of Arizona will govern this Agreement and its interpretation. Customer consents to the jurisdiction and venue of the Arizona Superior Court in Maricopa County, Arizona or the United States District Court for the District of Arizona as the exclusive forum for all disputes concerning this Agreement, the Software or the Documentation.

9.7 Notices. Any Customer notice required or permitted by this Agreement shall be given to the Author in writing by mail, hand delivery, or telecopy (fax) to the address set forth on the Author's website, or at such other address as the Author may designate by written notice. Any such notice shall be deemed to be received on the date delivered or telecopied, or five days after its deposit in the United States mail using first class postage prepaid.

9.8 Severability. The invalidity or unenforceability of any provision in this Agreement shall not affect the validity or enforceability of the rest of this Agreement.

9.9 Sales Taxes. Customer acknowledges that the fees required by this Agreement do not include any sales tax and agrees that Author may increase those fees by the amount of any tax or duty of any kind levied under present or future laws by any federal, state, municipal or other governmental authority upon the Software.

9.10 Waiver. Neither party's failure to exercise or delay in exercising any right or remedy that it may have under this Agreement shall operate as a waiver of that right or remedy or preclude any other or further exercise of any right or remedy available under this Agreement.