ACADEMIC SITE LICENSE AGREEMENT
MACKICHAN SOFTWARE, INC.
100 Main Street
MACKICHAN SOFTWARE, INC., ("MacKichan") agrees to grant Sample University ("Licensee") a software license ("License") in accordance with the following terms and conditions:
1.1 "Documentation" means one copy each of the "Getting Started" manual, the "Doing Mathematics with Scientific WorkPlace and Scientific Notebook" manual, and the "Creating Documents with Scientific Word and Scientific WorkPlace" manual, with all additions, changes and updates furnished by MacKichan under paragraph 4.2 or otherwise under this Agreement.
1.2 "Product" means one CD-ROM diskette containing the software and Documentation for Scientific WorkPlace, together with any and all corrections and updates furnished by MacKichan to Licensee under paragraphs 4.2 or 6.2 or otherwise under this Agreement.
PRODUCT DELIVERY AND LICENSE
2.1 Deliverables. Upon execution of this Agreement, MacKichan shall deliver to Licensee one copy of the Product, a program to run on a server which grants usage rights to users, and one copy of the Documentation.
2.2 Grant. MacKichan hereby grants Licensee a personal, nonexclusive, nontransferable License to install and use the Product for the internal requirements of Licensee, on computers located on the premises of Licensee.
2.3 Use. Licensee shall use the Product and the Documentation only for the purposes specified in paragraph 2.2 and in accordance with the following:
(a) The licensing daemon supplied with the Program shall be installed on a network server, which shall be accessible only to members of, employees of, or students enrolled in Sample University. Licensee shall use the Product only on computers which are owned or used by Licensee and connected to said network server, and will use the Product and Documentation solely for Licensee's internal use.
(b) Licensee shall not modify or prepare derivative works from the Product or Documentation;
(c) Licensee shall not reverse engineer, disassemble or decompile the Product;
(d) Licensee shall not remove, obscure, or alter any notice of patent, copyright, trade secret, trademark, or other proprietary right present on any Product or Documentation; and
(e) Licensee shall not sub-license, sell, lend, rent, lease, or otherwise transfer all or any portion of the Product or the Documentation to any third party except as permitted in paragraph 8.2.
2.4 Protection Against Unauthorized Use. Licensee shall promptly notify MacKichan of any unauthorized use of the Product or Documentation that comes to Licensee's attention. In the event of any unauthorized use by any of Licensees employees, agents or representatives, Licensee shall use reasonable efforts to terminate such unauthorized use and to retrieve any copy of the Product or Documentation in the possession or control of the person or entity engaging in such unauthorized use. Licensee shall immediately notify MacKichan of any legal proceeding initiated by Licensee in connection with such unauthorized use. MacKichan may, at its option and expense, participate in any such proceeding and, in such event, Licensee shall provide such authority, information and assistance related to such proceeding as MacKichan may reasonably request to protect MacKichan's interests.
2.5 Reservation of Proprietary Rights. The Product and Documentation involve valuable copyright, trade secret, trademark and other proprietary rights of MacKichan. Except for the License granted under paragraph 2.2, MacKichan reserves all rights to the Product and Documentation. No title to or ownership of any Product or proprietary rights related to the Products or Documentation is transferred to Licensee under this Agreement.
2.6 MacKichan agrees to allow students or employees of Licensee who have purchased Documentation and who are no longer enrolled or employed by Licensee, to become registered as single-copy users by paying the then current single-copy registration fee for the License, under the terms of MacKichans then-current End User License Agreement, or as MacKichan, in its sole discretion, otherwise agrees.
3.1 In consideration for MacKichan granting Licensee the License and for the Maintenance and Support under paragraph 4, Licensee shall pay to MacKichan $xx,000 within thirty (30) days after Licensees receipt of MacKichans invoice, and thereafter an additional annual fee equal to 20% of the then current license fee which shall be paid within thirty (30) days after receipt of MacKichan's invoice. This initial fee is based upon the fee schedule included in Exhibit A. Unless otherwise specified, the license fee specified in this Agreement does not include any sales, use, excise or other applicable taxes (excluding any applicable federal and state taxes based on MacKichans net income). Licensee will pay or reimburse MacKichan for any and all such taxes. Any amount not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month, determined and compounded on a daily basis from the date due until the date paid. Licensee will pay such interest when remitting the principal amount to MacKichan. Licensee shall pay all amounts due under this Agreement to MacKichan at the address indicated at the end of this Agreement or such other location as MacKichan designated in writing.
MAINTENANCE & SUPPORT
4.1 Telephone Support. Licensee shall designate and provide to MacKichan in writing the names of one primary representative and one alternate representative, to whom MacKichan will offer telephone and/or electronic mail (e-mail) support during the hours of 7:30 AM to 4:00 PM (Pacific time), Monday through Friday, excluding national holidays observed by MacKichan, so long as Licensee has paid MacKichan all amounts owing under this Agreement and maintains the current version or one version older of the software. Licensee will ensure that only the persons designated as the primary and alternate representatives will utilize the telephone support. MacKichan shall not be obligated to answer support questions from persons other than those currently registered with MacKichan as the primary or alternate representative. The designated representatives are:
C. A. Techwiz
A. U. Thor
4.2 Software Updates. Upon the publication of a new version of the Product or Documentation, you shall be provided with a new license for the new version(s) of the Program or Documentation in accordance with the terms of the upgrade policy established by MacKichan from time to time.
5.1 Term. The term of this Agreement and the License set forth in paragraph 2.2 shall commence on the date of this Agreement and shall end upon termination of this Agreement pursuant to paragraph 5.2 or 5.3.
5.2 Termination By Licensee. Licensee may terminate this Agreement and the License by giving thirty (30) days written notice to MacKichan. Any and all outstanding fees due must be paid commensurate with such notice of termination.
5.3 Termination By MacKichan. If Licensee defaults in the performance of or compliance with any of its obligations under this Agreement, and such default has not been remedied or cured within thirty (30) days after MacKichan gives Licensee written notice specifying the default, MacKichan may terminate this Agreement and the License, in addition to its other rights and remedies under law.
5.4 Post Termination. Upon termination of this Agreement by MacKichan, Licensee shall immediately cease use of the Product and Documentation and destroy (and in writing certify such destruction) or return to MacKichan all copies of the Product and Documentation then in Licensees possession or control within five (5) days after termination, and immediately pay MacKichan all outstanding fees then owing under this Agreement.
5.5 Survival. Sections 5, 7 and 8 and paragraphs 2.5 and 6.4 and all other provisions of this Agreement which may reasonably be interpreted or construed as surviving the termination of this Agreement, shall survive the termination of this Agreement.
WARRANTIES AND REMEDIES
6.1 Performance Warranty. MacKichan warrants to Licensee that for a period of thirty (30) days commencing upon delivery of the Product to Licensee, that when operated in accordance with the Documentation and other instructions provided by MacKichan, the Product will perform substantially in accordance with the functional specifications set forth in the Documentation. During the warranty period, MacKichan will provide Licensee, at no additional charge, with (i) a replacement copy of the Product if the media becomes damaged or is destroyed to the extent that the Product is unusable, and (ii) advice, consultation and assistance to use the Product and diagnose and correct problems that Licensee may encounter.
6.2 Remedy. If the Product fails to comply with the warranty set forth in paragraph 6.1, MacKichan will use commercially reasonable efforts to correct the noncompliance provided that Licensee notifies MacKichan in writing of the noncompliance within thirty (30) days after delivery of the Product to the Licensee; and MacKichan is able to reproduce the noncompliance. If after the expenditure of commercially reasonable efforts MacKichan is unable to correct any such noncompliance, MacKichan may, in its sole discretion, refund to Licensee all or an equitable portion of the license fee paid by Licensee to MacKichan for such Product in full satisfaction of Licensees claims relating to such noncompliance.
6.3 Warranty Limitations. MacKichan does not warrant that the Product is free from all bugs, errors and omissions; that the operation of the Product will be uninterrupted; that the Product will meet your requirements; or that all defects will be corrected. The warranty set forth in paragraph 6.1 applies only to the latest release of the Product made available by MacKichan to Licensee. The warranty in paragraph 5.1 shall be void if failure of the Product results from misuse, casualty loss, use or combination of the Product with any products, goods, services or other items furnished by anyone other than MacKichan or any modification not made by or for MacKichan.
6.4 DISCLAIMER AND RELEASE. THE WARRANTY AND THE REMEDIES OF LICENSEE SET FORTH IN THIS SECTION 6 ARE EXCLUSIVE.MACKICHAN DOES NOT MAKE OR GRANT, AND LICENSEE HEREBY WAIVES, RELEASES AND DISCLAIMS, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF MACKICHAN AND ALL OTHER REMEDIES, RIGHTS AND CLAIMS OF LICENSEE, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE PRODUCT, DOCUMENTATION, SERVICES OR OTHERWISE ARISING UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (C) ANY OBLIGATION, LIABILITY, RIGHT, REMEDY, OR CLAIM IN TORT, NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OF MACKICHAN (WHETHER ACTIVE, PASSIVE OR IMPUTED); AND (D) ANY OBLIGATION, LIABILITY, REMEDY, RIGHT OR CLAIM FOR INFRINGEMENT.
LIMITATIONS OF LIABILITY
7.1 Excused Performance. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement (other than payment obligations) as a result of any cause or condition beyond such party's reasonable control.
7.2 LIMITATION OF LIABILITY. IN NO EVENT WILL MACKICHAN BE OBLIGATED OR LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHER CAUSE OF ACTION) FOR THE COST OF COVER OR FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF REVENUE, PROFIT OR BUSINESS), EVEN IF MACKICHAN OR ITS EMPLOYEES OR REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MACKICHANS LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT OR OTHERWISE, AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, REPRESENTATION, STRICT LIABILITY OR PRODUCT LIABILITY OF MACKICHAN) UNDER THIS AGREEMENT WITH REGARD TO ANY PRODUCT, DOCUMENTATION, SERVICES OR OTHER ITEMS SUBJECT TO THIS AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL COMPENSATION PAID BY YOU TO MACKICHAN UNDER THIS AGREEMENT. No action, regardless of form, arising under this Agreement, may be brought by you more than one year after you have knowledge of the occurrence which gives rise to the cause of such action.
8.1 Notices. Any notice or other communication under this Agreement given by either party to the other will be deemed to be properly given if given in writing and delivered in person or by facsimile, if acknowledged received by return facsimile or followed within one day by a delivered or mailed copy of such notice, or if mailed, properly addressed and stamped with the required postage, to the intended recipient at its address specified in this Agreement. Either party may from time to time change its address for notices under this paragraph by giving the other party notice of the change in accordance with this paragraph.
8.2 Assignment. Licensee shall not assign (directly, by operation of law or otherwise) this Agreement or any of its rights under this Agreement without the prior written consent of MacKichan. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by the parties and their respective successors and assigns.
8.3 Nonwaiver. Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such party's right to assert or rely upon such provision, right or remedy in that or any other instance; rather the same will be and remain in full force and effect.
8.4 Entire Agreement. This Agreement consists of the entire Agreement and supersedes any and all prior agreements between MacKichan and Licensee relating to the Product, Documentation and other items subject to this Agreement. No amendment of this Agreement will be valid unless set forth in a written instrument signed by both parties.
8.5 Compliance with Laws. MacKichan and Licensee shall each comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in their performance of this Agreement. Without limiting the generality of the foregoing, Licensee will comply with all export control laws and regulations of the United States in dealing with the Product including its export and use of the Product outside the United States.
8.6 Governing Law. THIS AGREEMENT WILL BE INTERPRETED, CONSTRUED AND ENFORCED IN ALL RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE OF WASHINGTON WITHOUT REFERENCE TO ITS CHOICE OF LAW RULES. LICENSEE WILL NOT COMMENCE OR PROSECUTE ANY CLAIM, ACTION, SUIT OR PROCEEDING RELATING TO THIS AGREEMENT OR THE PRODUCT, DOCUMENTATION, SERVICES OR OTHER ITEMS SUBJECT TO THIS AGREEMENT OTHER THAN IN THE COURTS OF THE STATE OF WASHINGTON, KING COUNTY, OR THE UNITED STATES DISTRICT COURT LOCATED IN KING COUNTY. LICENSEE HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION AND VENUE OF THE COURTS IDENTIFIED IN THE PRECEDING SENTENCE IN CONNECTION WITH ANY CLAIM, ACTION, SUIT OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY PRODUCT, DOCUMENTATION, SERVICES OR OTHER ITEMS SUBJECT TO THIS AGREEMENT.
|MACKICHAN SOFTWARE, INC.||SAMPLE UNIVERSITY|
|19307 8th Avenue, Suite C||100 Main Street|
|Poulsbo, WA 98370-7370||
|Signature: ________________________________||Signature: ________________________________|
|Printed Name: Barry MacKichan||Printed Name: B. N. Counter|
|Title: President||Title: Director of Computing Resources|
|Date Signed: ______________________________||Date Signed: ______________________________|
1. The license fee under the License Agreement to which this Exhibit A is attached shall be based upon the enrollment (in Full-Time Equivalent students) of the academic institution and the period for which the License is leased. The license fee shall be $xx,000.