END USER LICENSE AGREEMENT
Thank you for using our software. This End User License
Agreement is a legal agreement between SMART Technologies ULC (referred
to as “SMART”, “we”, “us” or “our”) and you (where “you” or “your”
includes your organization, school or company that you are using or
installing the software on behalf of). You represent and
warrant that you have the authority to accept these terms and, where
applicable, bind your organization, school or company and ensure all of
its end users comply with these terms. If you are a minor
your parent or guardian must agree to these terms on your behalf.
By installing or using the software you are agreeing to be bound by
these terms. If you do not agree, do not use our
software. Please read this entire agreement, including all
linked terms, because together they create a contract that binds
you. Unless other terms accompany them, these terms also
apply to updates, patches and any related Internet or mobile based
applications.
Our software is licensed, not sold. Unless applicable law
gives you more rights you may only use our software as expressly
permitted in this agreement. In doing so, you must comply
with and not attempt to circumvent any technical limitations in the
software that allow you to activate or use it in only certain ways.
You may have other rights under the laws of your country.
This agreement does not change your rights if the laws of your country
do not permit it to do so.
SMART GRANTS YOU AND YOU ACCEPT A REVOCABLE, NON-EXCLUSIVE,
NON-TRANSFERABLE AND NON-ASSIGNABLE LICENSE TO USE THE SOFTWARE SUBJECT
TO THE FOLLOWING:
1. REVOKING YOUR LICENSE. This license is effective until
revoked or terminated. If you do not comply with the terms of this
agreement, including the linked terms, we may immediately revoke your
license and terminate this agreement. Some of our software
may be offered on a subscription basis. For subscriptions, your license
to the subscription based software is automatically revoked and your
software will stop working at the end of the subscription period
without any additional notice to you, unless the subscription is
renewed. After the subscription period ends you have no
further right to use the software. In such events, you must
immediately stop using the software and destroy all your copies.
2. LANGUAGE. Any translation we may do is for convenience and
in the event of a conflict between the English and non-English
versions, the English version shall prevail and govern.
3. GOVERNING LAW. This agreement is governed by and construed
in accordance with the laws of Alberta, Canada. You irrevocably agree
that any dispute, including litigation, involving this agreement or
SMART must be brought in the courts in the City of Calgary, Province of
Alberta. You shall not assert any claim that you are not
subject to the jurisdiction of such courts, that the venue is improper,
that the forum is inconvenient or any similar objection, claim or
argument. This agreement shall not be governed by the United
Nations Convention on Contracts for the International Sale of Goods,
the application of which is expressly excluded.
Notwithstanding this, you agree that SMART shall still be entitled to
apply for injunctive remedies (or an equivalent type of urgent legal
relief) in any jurisdiction.
4. CLASS ACTION WAIVER. To the extent permitted by law, any
and all proceedings to resolve or litigate a dispute must be conducted
solely on an individual basis. Neither you nor SMART shall
seek to have any dispute heard as a class action, private attorney
general action, or in any other proceeding in which either party acts,
or proposes to act, in a representative capacity.
5. LINKED TERMS. You are also bound by the following terms
and conditions:
Terms of Use
(http://www.smarttech.com/Home+Page/Legal/Legal+Notice)
Privacy Policy
(https://smarttech.com/Legal/Privacy+Policy)
In the event of a conflict or variance between the linked terms and the
terms in the body of this agreement, the terms in the body of this
agreement shall prevail and govern. If for any reason you are
unable to access these links please contact SMART at the address listed
in Section 17 and a copy will be provided to you.
6. LIMITED WARRANTY. SMART warrants to you that the software,
when properly installed and used, shall operate in substantial
accordance with our published specifications for a period of ninety
(90) days from the date of purchase. Subject to entitlements under a
maintenance program (if any), you assume the entire cost of all
necessary upgrades, servicing, repairs or correction of the
software. SMART's sole obligation under this limited warranty
shall be, at SMART's option and expense, to either: a) refund the
purchase price paid by you for the defective software; or b) to replace
the defective software with software that substantially conforms to
applicable SMART published specifications. Any replacement
software will be warranted for the remainder of the original warranty
period or thirty (30) days, whichever is longer.
7. NO WARRANTY. OTHER THAN THE LIMITED WARRANTY AS STATED
ABOVE IN SECTION 6, THE SOFTWARE IS PROVIDED “AS-IS” AND ITS USE IS AT
YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, SMART AND ITS SUPPLIERS, LICENSORS, DISTRIBUTORS AND RESELLERS
DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT AND
NONINFRINGEMENT WITH REGARD TO THE SOFTWARE AND SMART PRODUCTS AND ANY
COMPONENT THEREOF, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT
SERVICES. SMART DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE IS
OR WILL BE INTERRUPTION FREE, DEFECT FREE OR WILL MEET YOUR NEEDS.
8. NO LIABILITY. To the maximum extent permitted by
applicable law, in no event shall SMART or its suppliers, licensors,
resellers or distributors be liable for any special, incidental,
indirect, exemplary, consequential or punitive damages whatsoever
(including, without limitation, damages for any injury to any person or
property, damages for loss of profits, business interruption, loss of
business information, loss of privacy, damages for procurement of
substitute goods or services, damages for loss of use, loss of data,
damages for failure to meet any duty including the duties of good faith
or of reasonable care, for negligence or any other pecuniary loss)
arising out of the use of or inability to use the software or any
component thereof or the provision of or failure to provide support
services, whether based on contract, tort, negligence, strict liability
or otherwise, even if SMART or its suppliers, licensors, resellers or
distributors have been advised of the possibility of such
damages. IN ANY CASE, SMART'S ENTIRE LIABILITY UNDER THIS
AGREEMENT SHALL NOT EXCEED TEN CANADIAN DOLLARS ($10.00).
9. FEEDBACK. We do appreciate your suggestions but please be
aware that any comments, feedback or ideas you share with us while not
under a non-disclosure agreement shall be treated as non-confidential
and you will, and do hereby, assign us all right, title and interest to
them. This means we are free to use them for any purpose,
without compensation, acknowledgment or other obligation of any kind to
you. Individuals under the age of thirteen (13) may not
provide personal information to us.
10. EXPORT RESTRICTIONS: You agree that you shall comply with
all domestic and international export laws and regulations that apply
to the software. In particular, you agree that you shall not
export or re-export the software (including components) or any process
or service that is the direct product of the software to any country,
person or entity subject to Canadian, American or your own country’s
export restrictions.
11. U.S. GOVERNMENT RESTRICTED RIGHTS. Our software is a
“Commercial Item”, as that term is defined at 48 CFR 2.101, consisting
of “Commercial Computer Software” and “Commercial Computer Software
Documentation”, as such terms are used in 48 CFR 12.212 or 48 CFR
227.7202, as applicable. Consistent with 48 CFR 12.212 or 48
CFR 227.7202-4, as applicable, the Commercial Computer Software and
Commercial Computer Software Documentation are being licensed to US
Government end users (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 of this agreement.
12. INVALIDITY OF PROVISIONS. If any provision of this
agreement is invalid, illegal or unenforceable in any respect, such
provision shall be severed from this agreement or the applicable linked
terms, and the validity, legality or enforceability of the remaining
provisions shall not in any way be affected or impaired. The
failure by a party to exercise any right shall not operate as a waiver
of such party's right to exercise such right or any other right in the
future.
13. ASSIGNMENT. You may not assign this agreement or your license
without our prior written consent, which may not be granted.
SMART on the other hand, may assign this agreement without your
consent. Subject to the foregoing, this agreement shall be
binding upon and enure to the benefit of the parties to it and their
respective legal representatives, successors and permitted
assigns. Nothing in this agreement shall entitle any person
other than you and SMART and their respective successors and permitted
assigns to any claim, cause of action, remedy or right of any kind in
respect of the subject matter of this agreement.
14. ENTIRE AGREEMENT. This agreement, together with the linked terms,
constitutes the entire understanding of the parties and supersedes all
prior End User License Agreements, representations, negotiations,
tender documents and proposals between the parties with respect to the
subject matter of this agreement.
15. SURVIVAL. The obligations set forth in the preamble and Sections 2
to 15 inclusive shall survive termination of this agreement.
16. CONTACTING YOU. We (including our software), or an
authorized representative of SMART, may provide notice or contact you
about this agreement or our software either by: a) sending an email or
regular mail to the addresses we have on file for you; b) providing
notification or updates via the software’s updater; or c) posting a
message on the Terms of Use webpage (see Section 5). You
understand and agree that if you use our software after the date on
which we provide notice to you that the terms of this agreement or the
linked terms have changed, you will be agreeing to and accepting the
updated terms.
17. HAVE A QUESTION FOR US? We would love to hear from you:
SMART Technologies ULC
Attention: Legal Department
3636 Research Road N.W.
CALGARY, AB CANADA T2L 1Y1
+1.403.245.0333
Last Revised: June 13, 2014; 203689_1
© 2014 SMART Technologies ULC