PRE-RELEASE SOFTWARE LICENSE AGREEMENT READ CAREFULLY - THIS IS A BINDING LEGAL AGREEMENT Your use of this pre-release software (the "Pre-Release Software") is subject to the all of the terms and conditions of this License Agreement (the "Agreement") between the End User and Six Apart Ltd. ("Six Apart"). If you are downloading, copying, installing or using the Pre-Release Software on your own behalf, then you are the End User. If you are downloading, copying, installing or using the Pre-Release Software on behalf of a company, corporation, partnership or any other form of organization, then that company, corporation, partnership or other form of organization is the End User. By selecting "I Accept" when downloading the Pre-Release Software, or by downloading, copying, installing or using the Pre-Release 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 Pre-Release Software may not be copied, installed or used and must be removed from all of the End User's computer systems. 1. License of the Pre-Release Software to the End User 1.1 Six Apart hereby grants to the End User a royalty-free, worldwide, non-exclusive, limited license, with no right to sublicense, to use the Pre-Release Software only for the End User’s own use within the End User’s own computing environment in conjunction with a licensed copy of Six Apart’s Movable Type software. Except as explicitly set forth herein, all of the original terms, conditions and defined terms of such prior license remain unchanged and apply with equal force and effect to the Pre-Release Software. 1.2 The Pre-Release Software is licensed hereby and not sold. The End User acquires no rights or licenses in the Pre-Release Software except those expressly granted in this Agreement. Six Apart retains all right, title and interest in the Pre-Release Software except as expressly set forth herein. 2. Term and Termination 2.1 This Agreement will commence on the date of the End User's download of the Pre-Release Software and will remain in effect in perpetuity, unless earlier terminated by either party upon at least ten (10) days written notice to the other party. 3. No Maintenance or Technical Support 3.1 Notwithstanding anything to the contrary in this or any other agreement between Six Apart and the End User, no maintenance or technical support is provided for the Pre-Release Software. 4. Disclaimer of Liability 4.1 THE PRE-RELEASE SOFTWARE IS LICENSED “AS IS”. SIX APART HEREBY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY REGARDING THE PRE-RELEASE SOFTWARE INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THE END USER ACKNOWLEDGES THAT IT HAS RELIED ON NO REPRESENTATIONS OR WARRANTIES BY SIX APART. 4.2 IN NO EVENT SHALL SIX APART BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, COST OF COVER, LOSS OF USE OR DATA OR INTERRUPTION OF BUSINESS ARISING FROM OR RELATING IN ANY MANNER TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER SUCH ALLEGED DAMAGES ARE LABELED IN CONTRACT, INDEMNITY, TORT, STRICT LIABILITY EVEN IF SIX APART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 5. Dispute Resolution 5.1 In the event of dispute(s) between the parties arising from or concerning in any manner the subject matter of this Agreement, the parties will first attempt to resolve the dispute(s) through good faith negotiation. If such disputes cannot be resolved through good faith negotiation, the parties will refer the dispute(s) to the American Arbitration Association for final and binding arbitration before a single arbitrator in accordance with the then-current Commercial Arbitration Rules. The arbitration will be held in the county in which the party defending the arbitration has its principal place of business. 6. General Provisions 6.1 Neither party may assign this Agreement, in whole or in part, without the other party's written consent (which will not be unreasonably withheld), except that no such consent will be required in connection with a merger, reorganization or sale of all, or substantially all, of such party's assets. Any attempt to assign this Agreement other than as permitted above will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assignees. 6.2 No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties. 6.3 No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, will operate as a waiver of any such right, power or remedy. 6.4 This Agreement will be governed by the laws of the State of California, excluding its conflict of laws provisions. This Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA), even if that law is adopted in California. 6.5 The parties acknowledge that the manufacture and sale of the Pre-Release Software is subject to the export control laws of the United States of America, including the U.S. Bureau of Industry and Security export regulations, as amended, and hereby agree to obey any and all such laws. 6.6 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. 6.7 This Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party. 6.8 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. 6.9 If any provision of this Agreement is held to be unenforceable, the remaining provisions will remain in effect and the parties will negotiate in good faith a substantively comparable enforceable provision to replace the unenforceable provision. 6.10 This Agreement constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement. 6.11 If the End User is an agency of the United States Government, the Pre-Release Software is a “Commercial Item”, as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Pre-Release Software” and “Commercial Computer Pre-Release Software Documentation”, as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Pre-Release Software and Commercial Computer Pre-Release Software Documentation are being licensed to the United States Government (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All unpublished rights are reserved under the copyright laws of the United States. For purpose of any public disclosure provision under any law, it is agreed that the Pre-Release Software is a trade secret and proprietary commercial product and not subject to disclosure. -----Original Message----- From: Byrne Reese Sent: Thursday, July 31, 2008 1:55 PM To: Chris Vail Subject: Re: Beta language that I can repurpose for security patches? This Beta License Agreement is between you and Six Apart Ltd. and governs your use of the beta (test) version of MOVABLE TYPE 4.0 software, related software components, and documentation (all of which are referred to herein as the "Beta Software"). BY DOWNLOADING, INSTALLING OR USING THE BETA SOFTWARE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE THE BETA SOFTWARE. Evaluation License. The Beta Software is licensed to you solely for evaluation purposes. You may install the Beta Software on a single website, residing on a single server for your use to evaluate the Beta Software. This is Beta test software, and as such, WILL CONTAIN BUGS AND MAY CAUSE DATA LOSS. You may make one (1) copy of the Beta Software in machine readable form solely for back-up purposes, provided you reproduce the Beta Software in its original form and with all proprietary notices on the back-up copy. Restrictions on Use. You may not: * Create derivative works based on the Beta Software; * Reproduce the Beta Software except as described in this Agreement; * Sell, assign, license, disclose, or otherwise transfer or make available the Beta Software or any copies of the Beta Software in any form to any third parties; * Alter, translate, decompile, or attempt to reverse engineer the Beta Software, subject to applicable law which permits such activity notwithstanding this contractual prohibition; * Remove or alter any proprietary notices or marks on the Beta Software; or * Use the Beta Software for production use. Production use includes, without limitation, using the Beta Software on commercial websites; providing, or offering to provide, any service using the Beta Software; using the Beta Software to provide web design or other services to commercial and non- commercial websites; receiving compensation from others for copies or modified copies of the Beta Software; hosting, or offering to host, the Beta Software, on any basis; receiving compensation for any service that uses the Beta Software, including support services. Six Apart shall have the right to determine, in its sole discretion, whether a use is a commercial use or non-personal use. Six Apart owns all rights, title and interest in and to the Beta Software. All rights not expressly granted to you are retained by Six Apart. Your use shall be in accordance with applicable restrictions concerning privacy and intellectual property rights. Credit. In order to help us get out the good word about the Beta Software, you agree to display at least one "Powered by Movable Type" credit giving graphic, or text credit on the main page of your website that is seen by visitors to your website. This graphic may be downloaded from: movabletype.org. All copyright and other notices and logos contained in the downloadable graphic must remain intact. Personal Information and Privacy. We may ask you to provide certain information about you during the Beta Software downloading process. All personal information that you provide to us will be governed by the Privacy Policy, which is available at: http://www.sixapart.com/privacy. Also, we'd like to get your feedback on the Beta Software so we can keep improving it. You agree to answer questions regarding the Beta Software posed by us from time to time. Technical Support. Technical support is not provided for the Beta Software. You may find the user-to-user support forums at http://www.movabletype.org/support/ helpful in addressing any issues. No Warranty. THE BETA SOFTWARE IS BEING DELIVERED TO YOU "AS IS" AND SIX APART AND ITS SUPPLIERS MAKE NO WARRANTY AS TO ITS USE, RELIABILITY OR PERFORMANCE. SIX APART AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE BETA SOFTWARE. SIX APART AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO NONINFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU ASSUME ALL RISK ASSOCIATED WITH THE QUALITY, PERFORMANCE, INSTALLATION AND USE OF THE BETA SOFTWARE INCLUDING, BUT NOT LIMITED TO, THE RISKS OF PROGRAM ERRORS, DAMAGE TO EQUIPMENT, LOSS OF DATA OR BETA SOFTWARE PROGRAMS, OR UNAVAILABILITY OR INTERRUPTION OF OPERATIONS. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF USE THE BETA SOFTWARE AND ASSUME ALL RISKS ASSOCIATED WITH ITS USE. Indemnification. You agree to indemnify and hold Six Apart, parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Beta Software, or the infringement by you, of any intellectual property or other right of any person or entity. Limitation of Liability. IN NO EVENT WILL SIX APART OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES WHATSOEVER, OR ANY LOSS OF REVENUE, DATA, USE, OR PROFITS, EVEN IF A SIX APART REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE CLAIM IS BASED UPON ANY CONTRACT, TORT OR OTHER LEGAL OR EQUITABLE THEORY. Some States do not allow the exclusion or limitation of incidental or consequential damages, or the exclusion of implied warranties or limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you. Term and Termination. This Agreement will automatically expire on the first day Six Apart makes available the production version of the Beta Software (as announced on the Six Apart web site www.sixapart.com), unless earlier terminated as set forth below in this paragraph. Either Six Apart or you may terminate this Agreement at any time. This Agreement shall terminate automatically, without notice, if you fail to comply with the terms of this Agreement. Upon any termination of this Agreement, you must discontinue use of the Beta Software and uninstall and destroy all copies of the Beta Software you have obtained or made. Modification. Six Apart may modify the Beta Software and this Beta Agreement with notice to you either in email or by publishing content on the Six Apart website, In the event Six Apart modifies the Beta Software or the Beta Agreement, you may terminate this Beta Agreement and cease using of the Beta Software. Six Apart may terminate the Beta Agreement or the Six Apart Service at any time, with or without notice. Governing Law. This Agreement will be governed by the laws of the United States and the State of California, excluding the application of its conflicts of law rules. You consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in San Francisco, California. Government End Users. The Beta Software and accompanying documentation are provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions as set forth in subparagraph (c)(1)(iii) of DFARS 252.227-7013 (The Rights in Technical Data and Computer Software) or subparagraphs(c)(1) and (2) of 48 CFR 52.227-19 (the Commercial Computer Software � Restricted Rights), as applicable. The manufacturer is Six Apart, Ltd. General. The Beta Agreement constitutes the entire agreement between you and Six Apart and governs your use of the Beta Software, superceding any prior agreements between you and Six Apart. If any provision of this Beta 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 Beta Agreement will remain in full force and effect. The parties acknowledge that the manufacture and sale of the Beta Software is subject to the export control laws of the United States of America, including the U.S. Bureau of Export Administration regulations, as amended, and hereby agree to obey any and all such laws. You may not assign this Beta Agreement, and any assignment of this Beta Agreement by you will be null and void. Contact Information. If you have any questions about this Agreement, please contact us at legal@movabletype.org. If you have any questions about licensing that aren't answered on our website, please contact us at licensing@movabletype.org.