X-Cart Developer License Agreement

1. PURPOSE

X-Cart Holdings LLC (“The Author”) makes available the X-Cart software, activation keys and documentation (the “Software”) under the terms of this Developer License Agreement. If You do not agree to these terms, You may not access or use the Software.

2. DEFINITIONS

The following terms have the meanings assigned to the below: “Developer Product” means Your own computer software product that relies upon, integrates or otherwise uses the Software and does not substantially duplicate the capabilities or compete with the Software. “Early Access Release Materials” means Software and/or Documentation the Author identifies as “beta”, “pre-release,” “futures,” or as an “early access release.” “Internal Tools” means compatibility criteria, test suites, test tools, end user products, and other programs designed to aid in the development of, but not be incorporated in, Developer Product.

3. LICENSES

Use of the Software and Documentation is subject to the restrictions contained in this Agreement. The Author grants You the non-exclusive, non-transferable right to internally use The Software, Early Access Release Materials and Internal Tools in support of Your efforts to develop Developer Product hereunder.Developer Product may not contain any portion of The Software, Early Access Release Materials or Internal Tools in Developer Product except as expressly permitted in this Agreement. Developer Product may contain portions of the source code of the Software only for the purpose of making available the installation of Developer Product using “patch” utility.

4. RESERVATION OF RIGHTS

The Author reserves all rights not expressly granted to You. Without limiting the generality of the foregoing You: a) acknowledge that the source code of the Software represents and embodies trade secrets of the Author or its licensors (except for source code made publicly available by the licensor); b) agree not to disassemble, decompile, or otherwise reverse engineer the binary code Software to discover the source code and/or trade secrets embodied in the source code; c) acknowledge that the Author has not authorized You to rent, lease, and/or time share the Software; and, d) while certain test tools and test suites may be provided, YOU AGREE THAT ONLY THE AUTHOR CAN ISSUE AND PUBLISH TEST BULLETINS.

5. EARLY ACCESS MATERIALS

The Author does not represent or warrant that it will make the Early Access Materials generally available to the public or that any target dates will be met. The Author may change or cancel its plans at any time. You acknowledge that any Early Access Release product is of pre-release quality, has not been fully tested, and may contain errors; You assume the entire risk arising out of the use of the Early Access Release Software and any information provided with the Early Access Release Software.

6. SUPPORT

The Author shall have no obligation to provide support to You or to users of Developer Product(s).

7. TERM AND TERMINATION

This License will become effective on the date you acquire the Software and will remain in force until terminated. You may terminate this License at any time by destroying the Documentation and the Software together with all copies and adaptations. This License shall also automatically terminate if you breach any of the terms or conditions. You agree to destroy the original and all adaptations or copies of the Software and Documentation, or to return them to The Author upon termination of this License. Your right to use any Early Access Release Software will terminate upon the earlier of (i) first commercial shipment by The Author of the Early Access Release product, (ii) other termination of this Agreement, or (iii) time-based or other disabling of the Early Access Release product. Upon termination of this Agreement, end users of the Developer Product may continue to use the Developer Product under the terms of their license from You. You will have the right to maintain one copy of each version of the source code Software and/or the Developer Product but only for the purpose and to the extent reasonably necessary for you to provide support and maintenance to end users.

8. AUDIT

Upon reasonable notice, The Author may at its own expense audit your site(s) to ensure compliance with this Agreement. The Author will notify you in writing of any deficiency in compliance and will provide a recommended plan for resolving outstanding issues. Your failure to cure such deficiencies within 30 days after receipt of the written notification will constitute a material breach and will be grounds for immediate termination of this Agreement.

9. DEVELOPER INDEMNIFICATION

You agree to indemnify, defend and hold The Author harmless from all damages, liabilities and expenses incurred by The Author as a result of any claim, or judgment against The Author by any third party arising out of, or connected in any manner with, distribution or use of software created by You through the use of Software licensed to You under this Agreement or arising out of breach of this Agreement. If The Author receives notice of such a claim, The Author will promptly notify You in writing and allow You sole control of the defense of any such claim or action and all negotiations for its settlement and compromise, provided You give adequate assurances that You will diligently pursue resolution of the claim.

10. TRANSFER

This Agreement may not be transferred or assigned without Author’s prior written approval.

11. GOVERNING LAW

This agreement (and any dispute or claim relating to it or its subject matter) is governed by and is to be construed in accordance with the laws of the Republic of Cyprus. All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The place of arbitration shall be Nicosia, Cyprus.

12. ENTIRE AGREEMENT

This Agreement sets forth the entire understanding and License between you and The Author and may be amended only in a writing signed by both parties. No vendor, distributor, dealer, retailer, sales person or other person is authorized to modify this license or to make any warranty, representation or promise which is different than, or in addition to, the representations or promises of this license. This Agreement is not assignable by you in whole or in part without Author’s prior written approval.

13. SEVERABILITY / WAIVER

If a provision is invalid or unenforceable, the remaining provisions will remain in effect and the parties will amend the Agreement to reflect the original agreement to the maximum extent possible. No waiver of any contractual right will be effective unless in writing by an authorized representative of the waiving party. No waiver of a right arising from any breach or failure to perform will be deemed a waiver of any future right.

14. DISCLAIMER

EXCEPT AS OTHERWISE RESTRICTED BY LAW, THE SOFTWARE AND ANY ASSOCIATED SERVICES ARE PROVIDED “AS IS.” AUTHOR MAKES NO WARRANTY, REPRESENTATION OR PROMISE. AUTHOR DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. AUTHOR DOES NOT WARRANT THAT THE SOFTWARE WILL SATISFY YOUR REQUIREMENTS OR THAT THE SOFTWARE IS WITHOUT DEFECT OR ERROR OR THAT ITS OPERATION WILL BE UNINTERRUPTED.

15. LIMITATION OF LIABILITY

NEITHER THE AUTHOR NOR ANY OF ITS LICENSORS, EMPLOYEES, OR AGENTS SHALL IN ANY CASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS OR REVENUE, LOSS OF USE OF SOFTWARE, LOSS OF DATA, COSTS OF RE-CREATING LOST DATA, OR THE COST OF ANY SUBSTITUTE EQUIPMENT OR PROGRAM), INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. EXCEPT AS OTHERWISE RESTRICTED BY LAW, AUTHOR’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO YOUR USE OF THE SOFTWARE OR ANY ASSOCIATED SERVICES IS LIMITED TO THE TOTAL OF PAYMENTS MADE FOR SUCH SERVICES. Some states do not allow the complete exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not fully apply to you.

16. EXPORT

You may not export, re-export, or use the Software in violation of any applicable laws or regulations.