Please read the following license agreement. You may want to print it for your records.
END USER LICENSE AGREEMENT
MACKICHAN SOFTWARE, INC., ("MacKichan") agrees to grant you a software license ("License") in accordance with the following terms and conditions:
1.1 "Product" means the software, license, and documentation for Scientific WorkPlace 6, downloaded or supplied on CD-ROM or DVD, together with any and all corrections and updates furnished by MacKichan to you under paragraphs 4.2, 5.2, 5.3 or otherwise under this Agreement.
2.1 Grant. MacKichan hereby grants you a personal, nonexclusive, nontransferable License to install and use the Product for your personal requirements, either to be used by a single person who uses the software personally on one or more computers, or to be installed on a single workstation used non-simultaneously by multiple people, but not both.
2.2 Use. You hereby agree that you shall use the Product only for the purposes specified in paragraph 2.1 and in accordance with the following:
(a) You shall either: use the Product only on authorized computers which are owned or used by you and you will use the Product solely for your personal use; or: install the product on a single workstation used non-simultaneously by multiple people; but not both.
(b) You shall not modify or prepare derivative works from the Product;
(c) You shall not reverse engineer, disassemble or decompile the Product;
(d) You 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) You 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 7.2.
2.3 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 2.1, 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 you under this Agreement.
MAINTENANCE & SUPPORT
3.1 Telephone Support. MacKichan will offer telephone and/or electronic mail (e-mail) support to you during the hours of 7:30 a.m. to 4:00 p.m. (Pacific time), Monday through Friday, excluding national holidays observed by MacKichan. MacKichan shall not be obligated to answer support questions from persons other than you.
3.2 Software Updates. Upon the publication of a new version of the Product or Documentation, you may choose to continue to use the version of the Program licensed to you in paragraph 2.1. You may also choose to purchase 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.
4.1 Term. The term of this Agreement and the License set forth in paragraph 2.1 shall commence on the date of this Agreement and shall end upon the termination of this Agreement pursuant to paragraph 4.2 or 4.3.
4.2 Termination By You. You 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.
4.3 Termination By MacKichan. If you default in the performance of or compliance with any of your obligations under this Agreement, and such default has not been remedied or cured within thirty (30) days after MacKichan gives you written notice specifying the default or, if the nature of the default is such that more than thirty (30) days are required for the cure thereof, you fail to commence your effort to cure such breach or default within such thirty (30) days and to diligently prosecute the same to completion thereafter, MacKichan may terminate this Agreement and the License, in addition to its other rights and remedies under law.
4.4 Post Termination. Upon termination of this Agreement by MacKichan, you 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 your possession or control within five (5) days after termination.
4.5 Survival. Sections 1, 4, 6 and 7 and paragraphs 2.3 and 5.4 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
5.1 Performance Warranty. MacKichan warrants to you that for a period of thirty (30) days commencing upon delivery of the Product to you, 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 you, 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 you may encounter.
5.2 Remedy. If the Product fails to comply with the warranty set forth in paragraph 5.1, MacKichan will use reasonable efforts to correct the noncompliance (e.g., by furnishing a correction or update of the non-compliant Product), provided that: you notify MacKichan of the noncompliance within thirty (30) days after delivery of the Product to the you; and MacKichan is able to reproduce the noncompliance. If after the expenditure of reasonable efforts MacKichan is unable to correct any such noncompliance, MacKichan may, in its sole discretion, refund to you all or an equitable portion of the license fee paid by you to MacKichan for such Product in full satisfaction of your claims relating to such noncompliance.
5.3 Warranty Limitations. MacKichan does not warrant that the Product is free from all bugs, errors and omissions. The warranty set forth in paragraph 5.1 applies only to the latest release of the Product made available by MacKichan to you. Such warranty does not apply to any noncompliance resulting 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.
5.4 DISCLAIMER AND RELEASE. THE WARRANTY OF MACKICHAN AND YOUR REMEDIES SET FORTH IN THIS SECTION 5 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND YOU HEREBY WAIVE, RELEASE AND DISCLAIM, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF MACKICHAN AND ALL OTHER REMEDIES, RIGHTS AND CLAIMS YOU MIGHT HAVE, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE PRODUCTS, DOCUMENTATION, SERVICES AND ANY OTHER ITEMS SUBJECT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (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
6.1 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 monetary obligations) as a result of any cause or condition beyond such party's reasonable control.
6.2 DOLLAR LIMITATION. MACKICHAN'S 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.
6.3 DAMAGE LIMITATION. IN NO EVENT WILL MACKICHAN HAVE ANY OBLIGATION OR LIABILITY (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 OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF REVENUE, PROFIT OR BUSINESS) EVEN IF MACKICHAN OR ITS EMPLOYEES AND REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.1 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.
7.2 Assignment. You 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.
7.3 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.
7.4 Entire Agreement. This Agreement consists of the entire Agreement and supersedes any and all prior agreements between MacKichan and you 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.
7.5 Compliance with Laws. MacKichan and you 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, you 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.
7.6 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. YOU 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. YOU HEREBY IRREVOCABLY CONSENT 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.
1000 Cordova Place #623
Santa Fe, NM 87505